REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Registration Rights Agreement"),
entered into as of February 13, 1997, between HERACLES FUND, with offices at
c/o Bank of Bermuda (Cayman) Limited, P.O. Box 513, Third Floor, British
American Tower, ▇▇. ▇▇▇'▇ Drive, Georgetown, Grand Cayman, Cayman Islands,
BWI (the "Purchaser"), and ZYCAD CORPORATION, a Delaware corporation with
offices at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company")
W I T N E S S E T H:
WHEREAS, pursuant to a Convertible Securities Subscription Agreement,
dated as of February 13, 1997 (the "Agreement"), by and between the Company
and the Purchaser, the Company has agreed to sell and the Purchaser has
agreed to purchase up to Five Hundred Thousand Dollars (U.S. $500,000) of the
Company's 6% Convertible Subordinated Debenture due February 13, 2000 (the
"Debentures") convertible into shares of the Company's Common Stock, $.10 par
value. The Company has further agreed, pursuant to the Agreement and under
the circumstances provided therein, to issue Warrants to purchase additional
shares of such Common Stock. The shares of such Common Stock issuable upon
conversion of the Debentures and exercise of such Warrants are collectively
referred to herein as the "Shares".
WHEREAS, pursuant to the terms of, and in partial consideration for, the
Purchaser's agreement to enter into the Agreement, the Company has agreed to
provide the Purchaser with certain registration rights with respect to the
Shares under certain circumstances set forth in the Agreement;
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in the Agreement and this
Registration Rights Agreement, the Company and the Purchaser agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings. Other terms used herein which
are defined in the Agreement, the Debentures or the Warrants shall have the
same meanings herein as they do in such other documents.
"Commission" or "SEC" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
"Registrable Securities" shall mean: (i) Shares issued to Purchaser or
its designee upon conversion of the Debentures, upon exercise of the Warrants
(including the Debentures and Warrants to be sold to the Purchaser on the
First Closing Date and on the Second Closing Date pursuant to the Agreement)
or upon any stock split, stock dividend, recapitalization or similar event
with respect to such Shares; and (ii) any securities issued
-1-
or issuable to Purchaser or any Holder upon the conversion or exercise or
exchange of any Debentures, Warrants or Shares.
The terms "register", "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
"Registration Expenses" shall mean all expenses to be incurred by the
Company in connection with Purchaser's exercise of its registration rights
under this Agreement, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel for the
Company, blue sky fees and expenses, reasonable fees and disbursements of
counsel to Holder for a "due diligence" examination of the Company, and the
expense of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of the
Company, which shall be paid in any event by the Company).
"Selling Expenses" shall mean all underwriting discounts and selling
commissions, if any, applicable to the sale of Registrable Securities and all
fees and disbursements of counsel for Holder not included within
"Registration Expenses."
"Holder" shall include the Purchaser and any transferee of Debentures,
Warrants, Shares or Registrable Securities which have not been sold to the
public to whom the registration rights conferred by this Agreement have been
transferred in compliance with Section 10 of this Agreement.
"Registration Statement" shall have the meaning set forth in Section 2(a)
herein.
"Regulation D" shall mean Regulation D as promulgated pursuant to the
Securities Act, and as subsequently amended.
"Securities Act" shall mean the Securities Act of 1933, as amended.
2. THE REGISTRATION REQUIREMENTS. The Company shall file as promptly as
possible and in any event by the forty-fifth (45th) calendar day after the
First Closing Date, and use its diligent best efforts to cause to become
effective, as promptly as possible and in any event by the ninetieth (90th)
calendar day after the First Closing Date in the case of the registration of
the Underlying Stock and the Warrant Stock, a registration statement on Form
S-3 under the Securities Act or, if Form S-3 is not then available, another
appropriate form covering the resale of the Underlying Stock issuable on
conversion of the Debentures and the resale of the Warrant Stock issuable
upon the exercise of the Warrants, and shall take all action necessary to
qualify the Underlying Stock and the Warrant Stock under state "blue sky"
laws as hereinafter provided. The Company shall use its diligent best
efforts to effect the registration contemplated by the foregoing (including,
without limitation, the execution of an undertaking to file amendments and
-2-
post-effective amendments, appropriate qualification under and compliance
with applicable blue sky or other state securities laws and appropriate
compliance with applicable regulations issued under the Securities Act) and
as would permit or facilitate the sale and distribution of all the
Registrable Securities in all states reasonably requested by the Holder for
purposes of maximizing the proceeds realizable by the Holder from such sale
and distribution. Such best efforts by the Company shall include, without
limitation, the following:
(a) The Company shall file (i) registration statements with the
Commission pursuant to Rule 415 under the Securities Act on Form
S-3 under the Securities Act and the Company shall use its best
efforts to qualify for the use of such Form (or in the event that
the Company is ineligible to use such form, such other form as the
Company is eligible to use under the Securities Act) covering the
Registrable Securities so to be registered (each, a "Registration
Statement"); (ii) such blue sky filings as shall be reasonably
requested to permit such sales PROVIDED, HOWEVER, that the Company
shall not be required to register the Registrable Securities in any
jurisdiction that would subject it to general service of process in
any such jurisdiction where it is not then so subject or subject
the Company to any tax in any such jurisdiction where it is not
then so subject or require the Company to qualify to do business in
any jurisdiction where it is not then so qualified; and (iii) any
required filings with the National Association of Securities
Dealers, Inc. ("NASD") or exchange where the Shares are traded; all
as soon as practicable after the date hereof. The Company shall use
its best efforts to have the Registration Statements and other
filings declared effective as soon thereafter as may be practicable.
(b) The Company shall enter into such customary agreements
(including a customary underwriting agreement with the underwriter
or underwriters, if any) and take all such other reasonable actions
in connection therewith in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection,
whether or not the Registrable Securities are to be sold in an
underwritten offering, the Company shall:
(i) make such representations and warranties to the
Holder and the underwriter or underwriters, if any, in form
and substance and scope as are customarily made by issuers to
underwriters in secondary underwritten offerings:
(ii) cause to be delivered to the sellers of Registrable
Securities and the underwriter or underwriters, if any,
opinions of counsel to the Company, dated the effective day
(or in the case of an underwritten offering, dated the date of
delivery of any Registrable Securities sold pursuant thereto)
of the applicable registration statement (which counsel, and
opinions (in form, scope and substance), shall be reasonably
satisfactory to the managing underwriter or underwriters, if
any, and the
-3-
appointed representative or counsel of the Holder, addressed
to the Holder and each underwriter, if any, covering the
matters customarily covered in opinions requested in
secondary underwritten offerings and, in the case of any
underwritten offering, such other matters as may be
reasonably requested by the Holder;
(iii) cause to be delivered, immediately prior to the
effectiveness of the applicable Registration Statement (and,
in the case of an underwritten offering, at the time of
delivery of any Registrable Securities sold pursuant thereto),
letters from the Company's independent certified public
accountants addressed to the Holder and each underwriter, if
any, stating that such accountants are independent public
accountants within the meaning of the Securities Act and the
applicable published rules and regulations thereunder, and
otherwise in customary form and covering such financial and
accounting matters as are customarily covered by letters of
the independent certified public accountants delivered in
connection with secondary underwritten public offerings;
(iv) if an underwriting agreement is entered into, cause
the same to set forth indemnification and contribution
provisions and procedures which are no less favorable to the
Holder and the Company than those contemplated by sections 9
and 10 with respect to all parties to be indemnified pursuant
to such sections;
(v) deliver such documents and certificates as may be
reasonably requested by the Holder of the Registrable
Securities being sold or the managing underwriter or
underwriters, if any, to evidence compliance with clause (i)
above and with any customary conditions contained in the
underwriting agreement, if any, or other agreement entered
into by the Company;
the foregoing in this paragraph 2(b) shall be done at each closing
under any such underwriting or similar agreement or as and to the
extent required thereunder; provided, however, the foregoing in
paragraph 2(b) shall not be required on more than two (2)
occasions.
(c) The Company shall make available for inspection and review by
the Holder, a representative or representatives of the Holder, any
underwriter participating in any disposition pursuant to a
Registration Statement, and any attorney or accountant retained by
such Holder or underwriter, any such registration statement or
amendment or supplement or any blue sky, NASD or other filing, all
financial and other records, pertinent corporate documents and
properties of the Company as they may reasonably request for the
purpose, and cause the Company's officers, directors and employees
to supply all information reasonably requested by any such
representative, underwriter, attorney or
-4-
accountant in connection with such Registration Statement;
PROVIDED, HOWEVER, that the Holder shall first agree in writing
with the Company that any information that is reasonably and in
good faith designated by the Company in writing as confidential at
the time of delivery of such information shall be kept confidential
by the Holder and that the Holder will use reasonable efforts to
cause its representatives and such other persons so to keep such
information confidential, unless (i) disclosure of such information
is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii) disclosure of
such information is required by law (including any disclosure
requirements pursuant to Federal securities laws in connection with
the filing of any Registration Statement or the use of any
prospectus referred to in this Agreement), (iii) such information
becomes generally available to the public other than as a result of
a disclosure or failure to safeguard by any such person, (iv) such
information becomes available to any such person from a source
other than the Company and such source, to the knowledge of such
persons, is not bound by a confidentiality agreement with the
Company, or (v) such information was known to or is developed by
such persons without reference to such confidential information of
the Company.
3. UNDERWRITTEN DISTRIBUTION. If the Holder intends to distribute the
Registrable Securities covered by a Registration Statement by means of an
underwriting, the Holder shall so advise the Company and, within 30 days of
the date thereof and without limiting the generality of other provisions
hereof, the Company will prepare and file such amendment or amendments to the
Registration Statement and make such other filings as may be necessary or
appropriate to effect any such underwritten distribution.
4. MULTIPLE HOLDERS. If there is more than one Holder, such Holders
shall act with respect to their rights under this Agreement
according to the vote of a majority-in-interest.
5. EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration, qualification or compliance
pursuant to this Agreement shall be borne by the Company, and all
Selling Expenses shall be borne by the Holder.
6. REGISTRATION DELAY OR FAILURE. The Company acknowledges that its
failure to register the Registrable Securities in accordance with
the Agreement and this Registration Rights Agreement will cause the
Holder to suffer damages and undertake risks in amounts that will
be difficult to ascertain and were not anticipated in negotiating
the terms hereof or of the Agreement, the Debentures or the
Warrants. Accordingly the parties agree that it is appropriate to
include herein a provision for liquidated damages and to compensate
the Holder fairly for the additional risk undertaken by the Holder
resulting from the Company's delay or failure to effect such
registrations. The parties acknowledge and agree that the
provisions hereinafter set forth in this Paragraph 6 represent the
parties' good faith effort to quantify such damages and to
compensate for such additional risk and, as
-5-
such, agree that the form and amount of damages and risk compensation
are reasonable and will not constitute a penalty.
(a) If the Registration Statement covering the resale of the
Underlying Stock and the Warrant Stock is not effective by the
ninetieth (90th) calendar day after the First Closing Date, then,
with respect to the Debentures outstanding on such ninetieth day ,
each of the X%s (as defined in the Debentures) used in determining
the Conversion Date Market Price (as defined in the Debentures)
shall be reduced by two (2) percentage points, and the X%s as so
reduced shall then and thereafter be applicable to and upon the
conversion of such Debentures, in lieu and in place of the X%s
provided in the Debentures but subject to further reduction as
hereinafter provided in this Paragraph 6.
(b) If such Registration Statement still has not become effective
by the one hundred twentieth (120th) calendar day (or any lesser
number of days greater than the 90th calendar day after the First
Closing Date then each of the X%s applicable to the Debentures, as
theretofore reduced pursuant to Paragraph 6(a) hereof, shall be
further reduced by three (3) percentage points (or a prorated
portion for each day between the 90th and 120th calendar days) and,
as further so reduced, shall then and thereafter be applicable to
and upon conversion of the Debentures, but subject to further
reduction as hereinafter provided.
(c) If such Registration Statement still has not become effective
by the one hundred fiftieth (150th) calendar day (or any lesser
number of days greater than the 120th calendar day) after the First
Closing Date, then each of the X%s applicable to the Debentures, as
theretofore reduced pursuant to Paragraphs 6(a) and (b) hereof,
shall be further reduced by three (3) percentage points (or a
prorated portion for each day between the 120th and 150th calendar
days) on such 150th calendar day, and the X%s applicable to the
Debentures, as so reduced, shall then and thereafter be applicable
to and upon the conversion of such Debentures.
(d) If such Registration Statement still has not become effective
by the one hundred eightieth (180th) calendar day after the First
Closing Date, then there shall be paid to each Holder by the
Company, in cash, on such 180th day and on each succeeding 30th day
thereafter upon which such Registration Statement still has not
become effective, an amount equal to 3% of the Outstanding
Principal Amount of the Debentures held by the Holder on such 180th
day or succeeding 30th day, as the case may be, plus an amount
equal to 3% of the Original Principal Amount of any Debentures
converted prior to such 180th day or succeeding 30th day, as the
case may be, (each such payment, a "30 Day Delay Payment") and if
such Registration Statement shall become effective after the one
hundred fiftieth (150th) calendar day after the First Closing Date
but before such 180th day or any such succeeding 30th day, there
shall also be paid to the Holder, in cash, on the effective date of
the Registration Statement a 30 Day Delay
-6-
Payment pro-rated according to the portion of the then current 30
day period ending on such effective date.
(e) If such Registration Statement still has not become effective
by the first anniversary of the First Closing Date, then, at the
Holder's option exercised at any time thereafter, the Company shall
redeem the Holder's Debentures at a date designated by such Holder,
and at the redemption price provided in Paragraph 9(b) of the
Debentures, as though the date so designated were the date of a
Conversion Notice for purposes of such Paragraph 9(b).
7. REGISTRATION PROCEDURES. In the case of each registration effected
by the Company pursuant to this Agreement, the Company will keep the Holder
advised in writing as to initiation of each registration and as to the
completion thereof. At its expense, the Company will use its best efforts to:
(a) Keep such registration effective for the period ending (i) sixty
(60) months after initial issuance of the Debentures, (ii) when the Holder
has completed the distribution of the Registrable Securities described in the
registration statement relating thereto, or (iii) the date on which the
Registrable Securities are distributed to the public pursuant to Rule 144(k)
or are saleable pursuant to Rule 144(k) promulgated under the Securities Act,
whichever first occurs.
(b) Furnish such number of prospectuses and other documents incident
thereto as the Holder from time to time may reasonably request.
8. SUSPENSION OF USE OF REGISTRATION STATEMENT. The Holder agrees that,
upon receipt of any notice from the Company of (A) the happening of any event
which makes any statements made in the registration statement(s) or related
prospectus(es) filed pursuant to this Registration Rights Agreement, or any
document incorporated or deemed to be incorporated therein by reference,
untrue in any material respect or which requires the making of any changes in
such registration statement(s) or prospectus(es) so that, in the case of such
registration statement(s), it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstance under which they were made, not misleading or (B) that, in the
judgment of the Company's Board of Directors, it is advisable to suspend use
of the prospectus(es) for a discrete period of time due to pending corporate
developments which are or may be material to the Company but have not been
disclosed in the Registration Statement(s) or in relevant public filings with
the SEC, or (C) the SEC has issued a stop order suspending the effectiveness
of the Registration Statement(s), the Holder will forthwith discontinue
disposition of such Shares covered by such Registration Statement(s) or
prospectus(es) until it is advised in writing by the Company that use of the
applicable prospectus may be resumed, and has received copies of any
additional or supplemented filings that are incorporated or deemed to be
incorporated by reference in such prospectus(es). The Company shall use all
reasonable best efforts to insure that the use of the prospectus(es) may be
resumed as soon as
-7-
practicable, and in any event shall not be entitled to require the Holder to
suspend use of the prospectus(es) for more than thirty (30) consecutive days
on any one occasion, more than forty-five (45) consecutive days in the
aggregate on two occasions which are not at least 90 days apart or more than
an aggregate of sixty (60) days in any twelve month period.
9. INDEMNIFICATION.
(a) COMPANY INDEMNITY. The Company will indemnify the Holder, each
of its officers, directors and partners, and each person controlling Holder
within the meaning of Section 15 of the Securities Act and the rules and
regulations thereunder with respect to which registration, qualification or
compliance has been effected pursuant to this Agreement, and each
underwriter, if any, and each person who controls, within the meaning of
Section 15 of the Securities Act and the rules and regulations thereunder,
any underwriter, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any prospectus,
offering circular or other document (including any related registration
statement, notification or the like) incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, or any violation by the
Company of the Securities Act or any state securities law or in either case,
any rule or regulation thereunder applicable to the Company and relating to
action or inaction required of the Company in connection with any such
registration, qualification or compliance, and will reimburse the Holder,
each of its officers, directors and partners, and each person controlling
such Holder, each such underwriter and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating and defending any such claim, loss, damage,
liability or action, provided that the Company will not be liable in any such
case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission (or alleged
untrue statement or omission) based upon written information furnished to the
Company by Holder or the underwriter and stated to be specifically for use
therein. The Indemnity agreement contained in this Section 9(a) shall not
apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Company (which consent will not be unreasonably withheld).
(b) HOLDER INDEMNITY. The Holder will, if Registrable Securities
held by it are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors, officers, partners, and each underwriter, if any, of the
Company's securities covered by such a registration statement, each person
who controls the Company or such underwriter within the meaning of Section 15
of the Securities Act and the rules and regulations thereunder, each other
Holder (if any), and each of their officers, directors and partners, and each
person controlling such other Holder against all claims, losses, damages and
liabilities (or actions in respect thereof arising out of or based on any
untrue statement (or alleged
-8-
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission
(or alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statement therein not misleading, and will
reimburse the Company and such other Holders and their directors, officers
and partners, underwriters or control persons for any legal or any other
expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon
and in conformity with written information furnished to the Company by Holder
and stated to be specifically for use therein; provided, however, that the
obligations of Holder shall not apply to amounts paid in settlement of any
such claims, losses, damages or liabilities if such settlement is effected
without the consent of Holder (which consent shall not be unreasonably
withheld).
(c) PROCEDURE. Each party entitled to indemnification under this
Article (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim in any litigation resulting therefrom, provided that counsel
for the Indemnifying Party, who shall conduct the defense of such claim or
any litigation resulting therefrom, shall be approved by the Indemnified
Party (whose approval shall not be unreasonably withheld), and the
Indemnified Party may participate in such defense at such party's expense,
and provided further that the failure of any Indemnified Party to give notice
as provided herein shall not relieve the Indemnifying Party of its
obligations under this Article except to the extent that the Indemnifying
Party is actually prejudiced by such failure to provide notice. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. Each Indemnified Party shall furnish such information regarding
itself or the claim in question as an Indemnifying Party may reasonably
request in writing and as shall be reasonably required in connection with the
defense of such claim and litigation resulting therefrom.
10. CONTRIBUTION. If the indemnification provided for in Section 9
herein is unavailable to the Indemnified Parties in respect of any losses,
claims, damages or liabilities referred to herein, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claims, damages or liabilities (i) as between the
Company on the one hand and the Indemnified Parties on the other, in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Indemnified Parties, as the case may be, on
the other from the offering of the Registrable Securities, or (ii) if such
allocation is not permitted by
-9-
applicable law, in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand
and of the Indemnified Parties, as the case may be, on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one hand and the
Indemnified Parties, as the case may be, on the other shall be deemed to be
in the same proportion as the proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Company from the initial sale of the Debentures by the Company pursuant to
the Agreement bear to the gain realized by the Holder or the total
underwriting discounts and commissions received by the underwriters as set
forth in the table on the cover page of the prospectus, as the case may be.
The relative fault of the Company on the one hand and of the Holder or
underwriters, as the case may be, on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission to state a material fact relates to
information supplied by the Company, by the Holder or by the underwriters.
In no event shall the obligation of any Indemnifying Party to contribute
under this Section 10 exceed the amount that such Indemnifying Party would
have been obligated to pay by way of indemnification if the indemnification
provided for under Section 9(a) or 9(b) hereof had been available under the
circumstances.
The Company and the Holder agree that it would not be just and equitable
if contribution pursuant to this Section 10 were determined by pro rata
allocation (even if the Indemnified Parties were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraphs. The amount paid or payable by an Indemnified Party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraphs shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this section, no
Indemnified Party shall be required to contribute any amount in excess of the
amount by which (i) in the case of the Holder, the net proceeds received by
the Holder from the sale of Registrable Securities or (ii) in the case of an
underwriter, the total price at which the Registrable Securities purchased by
it and distributed to the public were offered to the public exceeds, in any
such case, the amount of any damages that the Holder or underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
-10-
11. SURVIVAL. The indemnity and contribution agreements contained in
Sections 9 and 10 and the representations and warranties of the Company
referred to in Section 2(b)(i) shall remain operative and in full force and
effect regardless of (i) any termination of the Agreement or any underwriting
agreement, (ii) any investigation made by or on behalf of any Indemnified
Party or by or on behalf of the Company and (iii) the consummation of the
sale or successive resales of the Registrable Securities.
12. INFORMATION BY HOLDER AND ANY UNDERWRITERS. The Holder and the
underwriters, if any, shall furnish to the Company, within 20 business days
of the Company's request therefor, such information regarding such Holder or
underwriters, as the case may be, and the distribution proposed by such
Holder or underwriters as the Company may reasonably request in writing and
as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
13. TRANSFER OF ASSIGNMENT OF REGISTRATION RIGHTS: The rights, granted
to Holder by the Company under this Registration Rights Agreement, to cause
the Company to register Registrable Securities, may be transferred or
assigned to a transferee or assignee of any of not less than $50,000 in
principal amount of Debentures and any Warrants, provided that the Company is
given written notice by Holder at the time of or within a reasonable time
after said transfer or assignment, stating the name and address of said
transferee or assignee and identifying the securities with respect to which
such registration rights are being transferred or assigned, and provided
further that the transferee or assignee of such rights is not deemed by the
board of directors of the Company, in its reasonable judgment, to be a
competitor of the Company; and provided further that the transferee or
assignee of such rights agrees to be bound by this Registration Rights
Agreement.
14. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Registration Rights Agreement contains
the entire understanding and agreement of the parties with respect to the
subject matter hereof, and may not be modified or terminated except by a
written agreement signed by both parties.
(b) NOTICES: Any notice or other communication given or permitted
under this Agreement shall be in writing and shall be deemed to have been
duly given if personally delivered or sent by registered or certified mail,
return receipt requested, postage prepaid with a copy in each case sent on
the same day to the addressee by facsimile, Federal Express or other such
expedited means, (a) if to Purchaser, at its address hereinabove set forth,
(b) if to the Company, at its address hereinabove set forth, (c) if, to a
Holder other than the Purchaser, at the address thereof furnished by like
notice to the Company, or (d) to any such addressee at such other address or
addresses as shall be so furnished to the other parties hereto by like notice.
(c) GENDER OF TERMS. All terms used herein shall be deemed to
include the feminine and the neuter, and the singular and the plural, as the
context required.
-11-
(d) GOVERNING LAW; CONSENT OF JURISDICTION. This Registration Rights
Agreement and the validity and performance of the terms hereof shall be
governed by and construed in accordance with the laws of the State of New
York, except to the extent that the law of Delaware regulates the Company's
issuance of securities. The parties hereto hereby consent to, and waive any
objection to the exercise of, personal jurisdiction in the State of New York
with respect to any action or proceeding arising out of this Registration
Rights Agreement.
(e) TITLE. The titles used in this Registration Rights Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
IN WITNESS WHEREOF, the parties hereto have cause this Registration
Rights Agreement to be duly executed as of the date first above written.
By: Heracles Fund
By: Promethean Investment Group, L.L.C.
Its: Investment Advisor
By: /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
-----------------------
▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Its: President
ZYCAD CORPORATION
a Delaware Corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Print Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Print Title: President and Chief
Executive Officer
-------------------------
ATTEST
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
-12-