Exhibit 4.4
THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, AND NO INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH
TRANSACTION INVOLVING SAID SECURITIES, OR (ii) THE ISSUER RECEIVES AN OPINION OF
LEGAL COUNSEL FOR THE HOLDER OF SAID SECURITIES SATISFACTORY TO THE ISSUER
STATING THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION.
WARRANT TO PURCHASE
SHARES OF COMMON STOCK
STOCK PURCHASE WARRANT
TO PURCHASE SHARES OF COMMON STOCK
OF
CASCADE MICROTECH, INC
For value received, Cascade Microtech, Inc., an Oregon corporation (the
"Company"), grants to Veber Investments V, L.L.C. (the "Initial Holder") the
right, subject to the terms of this Stock Purchase Warrant (this "Warrant"), to
purchase at any time and from time to time during the period commencing on the
"Initial Exercise Date" (as defined below) and ending on the "Expiration Date"
(as defined below), that number of fully paid and nonassessable shares of Common
Stock of the Company as determined in accordance with Section 2 below. The
exercise price shall be $3.80 per share (the "Exercise Price"). The Exercise
Price and the number of shares that may be purchased are subject to adjustment
under the terms of this Warrant.
SECTION 1. DEFINITIONS
As used in this Warrant, unless the context otherwise requires:
"COMMON STOCK" means the Company's common stock as authorized on the
date of this Warrant, and any other securities into which or for which any of
the securities described above may be converted or exchanged pursuant to a plan
or reorganization, merger, sale of assets or otherwise.
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"COMPANY" means Cascade Microtech, Inc. and any corporation or entity
that shall succeed to or assume the obligations of Cascade Microtech, Inc.
hereunder.
"EXERCISE DATE" means any date when this Warrant is exercised, in whole
or in part, in the manner indicated in Sections 3.1 and 3.2 below.
"EXERCISE PRICE" means the price at which Warrant Shares may be
purchased upon exercise of this Warrant, as stated in the introductory
paragraph; PROVIDED, HOWEVER, that if an adjustment is required under Section
8.1 of this Warrant, then the "Exercise Price" means, after such adjustment, the
price at which each Warrant Share may be purchased upon exercise of this Warrant
immediately after the last such adjustment.
"EXPIRATION DATE" means 12:00 midnight (Portland time) on the earlier
of (i) December 31, 2003, or (ii) the date specified in Section 8.1(d) hereof.
"HOLDER" means the Initial Holder or, upon assignment of this Warrant
by the Initial Holder (or a subsequent Holder), such assignee.
"INITIAL EXERCISE DATE" means the date of this Warrant.
"INITIAL HOLDER" has the meaning specified in the introductory
paragraph.
"PERSON" means an individual, corporation, partnership, trust, joint
venture or other form of business entity.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time, and all rules and regulations promulgated thereunder, or any act, rules
or regulations which replace the Securities Act or any such rules and
regulations.
"SUBSEQUENT WARRANT" has the meaning specified in Section 3.2(c) below.
"WARRANT SHARE(S)" means any share(s) of Common Stock, or other
securities, issued or issuable upon exercise of this Warrant.
SECTION 2. NUMBER OF SHARES SUBJECT TO WARRANT
2.1 IMMEDIATELY EXERCISABLE. This Warrant is exercisable at any
time with respect to 15,000 Warrant Shares.
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2.2 EXERCISABLE ONLY UPON COMPLETION OF EQUITY OR DEBT FINANCING.
If, during the term of the Engagement Agreement between the Company and Veber
Investments V, L.L.C. dated December 3, 1998 (the "Engagement Agreement") and
for a period of one year thereafter, the Company completes a debt or equity
financing pursuant to which the Company issues its debt or equity securities
solely in exchange for cash, then this Warrant shall be exercisable for (i)
30,000 Warrant Shares for each $1.0 million dollars raised in such financing
from parties contacted on behalf of the Company by Veber Investments V, L.L.C.,
up to a total of $2.0 million, and (ii) 15,000 Warrant Shares for each
additional $1.0 million raised in excess of $2.0 million from parties contacted
on behalf of the Company by Veber Investments V, L.L.C. For purposes of
determining whether cash has been received in a financing from one or more
parties contacted on behalf of the Company by Veber Investments V, L.L.C., Veber
Investments V, L.L.C. shall deliver to the Company, on the first day of each
week in which the Engagement Agreement remains in effect, an updated list of the
persons and entities which Veber Investments V, L.L.C. has contacted on behalf
of the Company, which list shall set forth (i) the name, address and phone
number of the person or entity contacted, and (ii) a short summary of the
current status of each party's interest in a possible transaction with the
Company.
2.3 EXERCISABLE ONLY UPON COMPLETION OF A MERGER, SALE OR
TECHNOLOGY LICENSE TRANSACTION. If the Company completes a merger, sale or
technology license transaction, as those terms are defined below, with any party
that Veber Investments V, L.L.C. provides substantive consulting services to the
Company under the Engagement Agreement, including but not limited to
Electroglas, Inc., then this Warrant shall be exercisable for 10,000 Warrant
Shares at any time following the completion of such transaction. For purposes of
this Section 2.3, the term "merger or sale transaction" shall mean (i) a merger
or consolidation of the Company with or into any other corporation or any other
entity or person, other than a merger of the Company into a wholly owned
subsidiary corporation solely for the purpose of reincorporating the Company in
another state, (ii) a merger, consolidation or any other corporate
reorganization, reclassification or recapitalization of the Company as a result
of which the holders of the outstanding capital stock of the Company immediately
prior to any such event shall own less than a majority of the outstanding
capital stock of the Company on an as-converted basis immediately after the
consummation of any such event, (iii) any sale, lease, assignment, transfer or
other conveyance of 50% or more of the assets of the Company, or (iv) any sale
or transfer of a principal business unit of the Company. For purposes of this
Section 2.3, the term "technology license" shall mean the execution of a license
or use agreement with a third party granting such party the right to commercial
use of one or more of the principal technologies of the Company in exchange for
the payment of cash or other consideration to the Company with an expected value
of not less than $1,000,000.
SECTION 3. DURATION AND EXERCISE OF WARRANT
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3.1 EXERCISE PERIOD. Subject to the provisions hereof, this
Warrant may be exercised at any time and from time to time in whole or in part
during the period commencing on the Initial Exercise Date and ending on the
Expiration Date. After the Expiration Date, this Warrant shall become void and
all rights to purchase Warrant Shares hereunder shall thereupon cease.
3.2 METHOD OF EXERCISE AND PAYMENT.
(a) METHOD OF EXERCISE. Subject to Section 3.1 hereof and
compliance with all applicable Federal and state securities laws, the purchase
right represented by this Warrant may be exercised, in whole or in part, by the
Holder by (i) surrender of this Warrant and delivery of the Exercise Form
attached hereto as Exhibit A, duly executed, at the principal office of the
Company, and (ii) payment to the Company of an amount equal to the product of
the then applicable Exercise Price multiplied by the number of Warrant Shares
then being purchased.
(b) CONVERSION RIGHT. In lieu of exercising this Warrant
as specified in Section 3.2(a), Holder may from time to time convert this
Warrant, in whole or in part, into a number of Warrant Shares determined by
dividing (i) the aggregate fair market value of the Warrant Shares issuable upon
exercise of this Warrant, minus the aggregate Exercise Price of such Warrant
Shares by (ii) the fair market value of one Warrant Share. The fair market value
of the Warrant Shares shall be determined as follows: If the Company's Common
Stock is traded in a public market, the fair market value of the Warrant Shares
shall be the closing price of the Common Stock reported for the business day
immediately before Holder delivers its Exercise Form to the Company. If the
Company's Common Stock is not traded in a public market, the Board of Directors
of the Company shall determine fair market value in its reasonable good faith
judgment.
(c) METHOD OF PAYMENT. Payment shall be made either (i)
by check drawn on a United States bank and for United States funds made payable
to the Company, (ii) by wire transfer of United States funds for the account of
the Company, (iii) by the cancellation of indebtedness of the Company to the
Holder, but only at the option of the Holder, or (iv) any combination of the
foregoing at the option of the Holder.
(d) DELIVERY OF CERTIFICATE. In the event of any exercise
of the purchase right represented by this Warrant, certificates for the Warrant
Shares so purchased shall be delivered to the Holder within thirty (30) days of
delivery of the Exercise Form and payment and, unless this Warrant has been
fully exercised or has expired, a new warrant representing the portion of the
Warrant Shares with respect to which this Warrant shall not then have been
exercised (the "Subsequent Warrant") shall also be issued to the Holder within
such thirty (30)-day period.
4 - STOCK PURCHASE WARRANT
3.3 SECURITIES ACT COMPLIANCE/RESTRICTIONS UPON TRANSFER. Unless
the issuance of the Warrant Shares shall have been registered under the
Securities Act, as a condition of its delivery of certificates for the Warrant
Shares, the Company may require the Holder (including the transferee of the
Warrant Shares in whose name the Warrant Shares are to be registered) to deliver
to the Company, in writing, representations regarding the Holder's
sophistication, investment intent, acquisition for his own account and such
other matters as are reasonable and customary for purchasers of securities in an
unregistered private offering of securities. The Company may place conspicuously
upon each Subsequent Warrant and upon each certificate representing the Warrant
Shares a legend substantially in the following form, the terms of which are
agreed to by the Holder (including any and all transferees):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS, AND NO INTEREST THEREIN MAY
BE OFFERED, SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS
COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES, OR
(ii) THE ISSUER RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE
HOLDER OF SAID SECURITIES SATISFACTORY TO THE ISSUER STATING
THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION.
The Company need not register a transfer of this Warrant or the Warrant Shares
unless the conditions specified in such legend are satisfied. Subject to the
foregoing transfer restrictions set forth in this Section 3.3, this Warrant is
transferable, in whole or in part, on the books of the Company, upon surrender
of this Warrant to the Company, together with a written assignment duly executed
by the Holder and delivery of funds sufficient to pay any transfer taxes payable
by reason of such transfer.
3.4 TAXES. The Company will pay any stamp, transfer or similar tax
that may be payable in respect of the issuance of the Warrant Shares.
SECTION 4. VALIDITY AND RESERVATION OF WARRANT SHARES
The Company represents and warrants that all Warrant Shares issued upon
exercise of this Warrant will be validly issued, fully paid nonassessable and
not subject to preemptive or similar rights. The Company agrees that, as long as
this Warrant may be exercised, the Company will have authorized and reserved for
issuance upon exercise of this Warrant a sufficient number of shares of Common
Stock to provide for exercise in full of this Warrant.
5 - STOCK PURCHASE WARRANT
SECTION 5. FRACTIONAL SHARES
No fractional Warrant Shares shall be issued upon the exercise of this
Warrant, and the number of Warrant Shares to be issued shall be rounded to the
nearest whole number.
SECTION 6. LIMITED RIGHTS OF WARRANT HOLDER
The Holder shall not, solely by virtue of being the Holder of this
Warrant, have any of the rights of a shareholder of the Company, either at law
or equity, until this Warrant shall have been exercised.
SECTION 7. LOSS OF WARRANT
Upon receipt by the Company of satisfactory evidence of the loss,
theft, destruction or mutilation of this Warrant and either (in the case of
loss, theft or destruction) reasonable indemnification and a bond satisfactory
to the Company if requested by the Company or (in the case of mutilation) the
surrender of this Warrant for cancellation, the Company will execute and deliver
to the Holder, without charge, a new warrant of like denomination.
SECTION 8. CERTAIN ADJUSTMENTS OF EXERCISE PRICE
8.1 ADJUSTMENT OF EXERCISE PRICE. The number, class and Exercise
Price of securities for which this Warrant may be exercised are subject to
adjustment from time to time upon the happening of certain events as hereinafter
provided:
(a) STOCK SPLITS AND STOCK DIVIDENDS. In the event the
Company should at any time or from time to time after the date hereof fix a
record date for the effectuation of a split or subdivision of the outstanding
shares of Common Stock or the determination of holders of Common Stock entitled
to receive a dividend or other distribution payable in additional shares of
Common Stock or other securities or rights convertible into, or entitling the
holder thereof to receive directly or indirectly, additional shares of Common
Stock (hereinafter referred to as "Common Stock Equivalents") without payment of
any consideration by such holder for the additional shares of Common Stock or
the Common Stock Equivalents (including the additional shares of Common Stock
issuable upon conversion or exercise thereof), then, as of such record date (or
the date of such dividend, distribution, split or subdivision if no record date
is fixed), the Exercise Price shall be appropriately decreased and the number of
shares of Common Stock issuable upon exercise of this Warrant shall be increased
in proportion to such increase of the aggregate of shares of Common Stock
outstanding and those issuable with respect to such Common Stock Equivalents.
6 - STOCK PURCHASE WARRANT
(b) COMBINATIONS. If the number of shares of Common Stock
outstanding at any time after the date hereof is decreased by a combination of
the outstanding shares of Common Stock, then, following the record date of such
combination, the Exercise Price shall be appropriately increased and the number
of shares of Common Stock issuable upon exercise of this Warrant shall be
decreased in proportion to such decrease in outstanding shares.
(c) RECAPITALIZATIONS. If at any time or from time to
time there shall be a merger, consolidation, reclassification, reorganization or
other change in the capital structure of the Company (a "Recapitalization")
(other than an event described in Sections 8.1(a) or 8.1(b) above or Section
8.1(d) below), provision shall be made so that the Holder shall thereafter be
entitled to receive upon exercise of this Warrant the number of shares of stock
or other securities or property of the Company, or otherwise, to which a holder
of Common Stock deliverable upon exercise would have been entitled on such
Recapitalization. In any such case, appropriate adjustment shall be made in
application of the provisions of Section 8.1 with respect to the rights of the
Holder after the Recapitalization to the end that the provisions of Section 8.1
(including adjustment of the Exercise Price then in effect and the number of
shares purchasable upon exercise of this Warrant) shall be applicable after that
event, as nearly equivalent as may be practicable, in relation to any shares of
stock or other property thereafter deliverable upon the exercise of this
Warrant.
(d) OTHER RECAPITALIZATIONS. Notwithstanding the
foregoing, in the event of (i) a the dissolution or complete liquidation of the
Company, (ii) a Recapitalization resulting in the shareholders immediately
preceding such Recapitalization, as a group, holding less than a majority of the
outstanding capital stock of the Company immediately following such
Recapitalization, including such Recapitalizations where the Company will not be
the surviving corporation, or (iii) the sale of all or substantially all of the
assets of the Company, the Warrant shall expire and become void and all rights
to purchase Warrant Shares hereunder shall cease following the expiration of the
notice period specified in Section 8.1(e) below.
(e) NOTICE. The Company shall provide the Holder with at
least 20 days' prior written notice of the date when any such change in the
capital structure of the Company as described in Section 8.1 shall take place.
(f) NO IMPAIRMENT. The Company will not, by amendment of
its Articles of Incorporation or through any Recapitalization, transfer of
assets, dissolution or liquidation, issue or sale of securities, or any other
voluntary action, avoid or seek to avoid the observance or performance hereunder
by the Company, but will at all times in good faith assist in the carrying out
of all the provisions of Section 8.1 and in the taking of all such action as may
be necessary or appropriate in order to protect the exercise rights of the
Holder against impairment.
7 - STOCK PURCHASE WARRANT
(g) MINIMUM ADJUSTMENT NOT REQUIRED. Anything in Section
8.1 to the contrary notwithstanding, the Company shall not be required, except
as hereinafter provided, to make any adjustment of the Exercise Price in any
case in which the amount by which such Exercise Price would be increased or
reduced, in accordance with the foregoing provisions, would be less than $0.01
per share, but in such a case, any adjustment that would otherwise be required
to be made will be carried forward and made at the time and together with the
next subsequent adjustment.
8.2 NOTICE OF ADJUSTMENT. Whenever an event occurs requiring any
adjustment to be made pursuant to Section 8.1, the Company shall promptly file
with its Secretary or an Assistant Secretary at its principal office and with
its stock transfer agent, if any, a certificate of its chief executive officer
specifying such adjustment, setting forth in reasonable detail the acts
requiring such adjustment, and stating such other facts as shall be necessary to
show the manner and figures used to compute such adjustment. Such chief
executive officer's certificate shall be made available at all reasonable times
for inspection by the Holder. Promptly (but in no event more than thirty (30)
days) after each such adjustment, the Company shall give a copy of such
certificate by certified mail to the Holder.
SECTION 9. SUBDIVISION OF WARRANT
At the request of the Holder in connection with a transfer of a portion
of this Warrant, upon surrender of this Warrant for such purpose to the Company
at its principal office, the Company, at its expense (except for any transfer
tax payable), will issue and exchange therefor new Warrants of like tenor and
date representing in the aggregate the amount of the Warrant Shares.
SECTION 10. REPRESENTATIONS AND WARRANTIES BY THE HOLDER
The Holder represents and warrants to the Company as follows:
10.1 This Warrant and the Warrant Shares issuable upon exercise
thereof are being acquired for its own account, for investment and not with a
view to, or for resale in connection with, any distribution or public offering
thereof within the meaning of the Securities Act. Upon exercise of this Warrant,
the Holder shall, if so requested by the Company, confirm in writing, in a form
satisfactory to the Company, that the securities issuable upon exercise of this
Warrant are being acquired for investment and not with a view toward
distribution or resale.
10.2 The Holder understands that the Warrant and the Warrant Shares
have not been registered under the Securities Act by reason of their issuance in
a transaction exempt from the registration and prospectus delivery requirements
of the Securities Act pursuant to Section 4(2) thereof, and that they must be
held by the Holder indefinitely, and that the Holder must therefore
8 - STOCK PURCHASE WARRANT
bear the economic risk of such investment indefinitely, unless a subsequent
disposition thereof is registered under the Securities Act or is exempted from
such registration.
10.3 The Holder has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the
purchase of this Warrant and the Warrant Shares purchasable pursuant to the
terms of this Warrant and of protecting its interests in connection therewith.
10.4 The Holder is able to bear the economic risk of the purchase
of the Warrant Shares pursuant to the terms of this Warrant.
SECTION 11. REGISTRATION RIGHTS
The Holder shall have the right to have the Warrant Shares registered
for sale with the Securities and Exchange Commission in accordance with the
piggyback and Form S-3 registration rights set forth in Sections 1.3 and 1.5,
respectively, of the Investor Rights Agreement dated May 1, 1990 (the "Investor
Rights Agreement"), the pertinent portions of which are attached hereto and
incorporated herein as Exhibit B. Consistent with the allocation provisions set
forth in Section 1.13 of the Investor Rights Agreement, Holder hereby
acknowledges that the registration rights granted in this Section 11 shall be
subordinate in priority and allocation to (i) the registration rights granted to
Hewlett-Packard Company and the "Founders" as that term is defined in the
Investor Rights Agreement attached hereto as Exhibit B, and (ii) unless
otherwise specified in writing, any other registration rights which the Company
may grant in the future, including but not limited to any registration rights
which may be granted to investors, strategic or joint venture partners and the
like in connection with a transaction in which the Company receives consulting
services from Veber Investments V, L.L.C. under the Engagement Agreement.
Further, Holder hereby acknowledges that in no event ▇▇▇▇ ▇▇▇▇▇▇ have
registration rights which are superior to the piggyback and Form S-3
registration rights granted under the Investor Rights Agreement.
SECTION 12. MISCELLANEOUS
12.1 SUCCESSORS AND ASSIGNS. The provisions of this Warrant shall
be binding upon and inure to the benefit of the Company, the Holder and their
respective permitted successors and assigns hereunder.
12.2 NOTICE. All notices and statements provided for herein shall
be in writing and shall be deemed given (i) three (3) days after deposit in the
U.S. mail if sent by Registered or Certified mail, postage prepaid, addressed to
the parties at their addresses set forth below; (ii) immediately upon personal
deliver to a party, (iii) if by courier, on the date that the courier warrants
that delivery will occur, or (iv) if by telex or facsimile, when receipt is
confirmed by
9 - STOCK PURCHASE WARRANT
the transmission equipment or acknowledged by the addressee. A party may change
its address by giving notice thereof to the other party as provided herein.
10 - STOCK PURCHASE WARRANT
IF TO THE COMPANY: IF TO THE HOLDER:
Cascade Microtech, Inc Veber Investments V, L.L.C.
Attention: Chief Financial Officer ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12.3 APPLICABLE LAW. The validity, interpretation and performance
of this Warrant shall be governed by the laws of the State of Oregon.
12.4 HEADINGS. The headings herein are for convenience only and are
not part of this Warrant and shall not affect the interpretation thereof.
DATED this _____ day of December, 1998.
CASCADE MICROTECH, INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Chief Financial Officer
VEBER INVESTMENTS V, L.L.C.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇
11 - STOCK PURCHASE WARRANT
EXHIBIT A
NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase ___________ shares
of the Common Stock of Cascade Microtech, Inc. pursuant to the term of the
attached Stock Purchase Warrant dated December , 1998 (the "Warrant"), and
tenders herewith payment of the purchase price of such shares in full in the
following manner:
(a) ______ Check in the amount of $______________
(b) ______ Wire transfer in the amount of $____________
(c) ______ Cancellation of indebtedness in the
amount of $_________.
2. Please issue a certificate or certificates representing said
shares in the name of the undersigned or in such other name as is specified
below:
---------------------------------
(Name)
---------------------------------
---------------------------------
(Address)
3. The undersigned represents that it has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of the purchase of shares of Common Stock of the Company
and that it is acquiring the shares solely for its own account and not as a
nominee for any other party and not with a view toward the resale or
distribution thereof except in compliance with applicable securities laws.
---------------------------------
(Signature)
(Date)
12 - STOCK PURCHASE WARRANT