EXHIBIT 4.1
EXECUTION COPY
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WARRANT AGREEMENT
THIS WARRANT AGREEMENT (the "AGREEMENT") is executed this 1st day of
May, 1998 by ANALYTICAL GRAPHICS, INC., a Pennsylvania corporation (the
"Company"), in favor of PNC BANK, N.A. ("PNC BANK"), and TRANSAMERICA BUSINESS
CREDIT CORPORATION (collectively the "BANKS") and PNC BANK in its capacity as
agent for the Banks (the "AGENT").
Pursuant to that certain Loan Agreement of even date herewith among
the Company, the Agent, and the Banks (the "LOAN AGREEMENT"), the Banks have
agreed to make a Term Loan to the Company, such Term Loan to consist of an
initial tranche of $3,000,000 (the "FIRST TRANCHE") and a second tranche of
$1,000,000 (the "SECOND TRANCHE"). In consideration of the extension of credit
to the Company under the First Tranche, the Company has agreed to issue to the
Banks (referred to herein as the "BANK HOLDERS"), warrants (each a "WARRANT") to
purchase up to Forty Thousand (40,000) shares in the aggregate (the "EXERCISE
QUANTITY"), subject to the adjustments herein provided, of the common stock of
the Company, par value $.01 per share (the "COMMON STOCK").
Capitalized terms used but not defined herein shall the meanings
ascribed to them in the Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing, and intending to be
legally bound hereby, the Company and the Bank Holders agree as follows:
1. GRANT OF WARRANT. In consideration for the extension of credit by
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the Banks to the Company under the Term Loan, the Company hereby grants to the
Bank Holders a Warrant to purchase up to that number of shares which constitute
the Exercise Quantity of the Common Stock on the date of such purchase. The
Bank Holders and any subsequent registered holders of the Warrants have the
rights and obligations provided for in the form of warrant and in this
Agreement.
Upon the Funding of the First Tranche, the Company shall deliver to
the Bank Holders Warrants exercisable into an aggregate of 40,000 shares of
Common Stock at the Exercise Price. Additional Warrants exercisable into an
aggregate of 13,500 shares of Common Stock shall be issued upon the funding of
the Second Tranche according to the terms of the Loan Agreement. All Warrants
granted to the Bank Holders pursuant to this Agreement shall be allocated among
such Bank Holders according to Schedule I attached hereto.
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2. WARRANT CERTIFICATE.
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(a) Form of Warrant Certificate. The Warrant shall be evidenced by a
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certificate ("WARRANT CERTIFICATE"), which Warrant Certificate (and the form of
election to purchase Common Stock and of assignment to be attached thereto)
shall be substantially the
same as Exhibit A hereto and may have such marks of identification or
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designations and such legends, summaries, or endorsements printed thereon as the
Company may deem appropriate and which are not inconsistent with the provisions
of this Agreement, or as may be required to comply with any applicable law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Warrant may from time to time be listed. The
Warrant Certificate shall entitle the holder thereof to purchase such number of
shares of Common Stock as shall be set forth therein at the Exercise Price (as
set forth herein) at such time or times as the holder may elect in its sole
discretion, but the number of such shares of Common Stock and the Exercise Price
shall be subject to adjustment as provided herein. The Warrants shall also
provide for a net issuance option allowing each holder thereof to surrender such
Warrant and receive in exchange therefor shares of Common Stock having a fair
market value equal to the product of (i) the number of shares of Common Stock
into which such Warrant is then exercisable multiplied by (ii) the difference of
(A) fair market value of each share of Common Stock on the date of surrender
less (B) the per share exercise price of such Warrant on the date of surrender.
(b) Countersignature and Registration.
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(i) The Warrant Certificates shall be executed on behalf of the
Company by its Chairman of the Board, its President or any Vice President,
either manually or by facsimile signature, shall have affixed thereto the
Company's seal or a facsimile thereof, and shall be attested by the
Secretary or Assistant Secretary of the Company, either manually or by
facsimile signature.
(ii) The Company will keep or cause to be kept, at its principal
office, books for the registration and transfer of the Warrant Certificate
issued hereunder.
(c) Transfer, Split-Up, Combination and Exchange of Warrant
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Certificates. At any time prior to the close of business on the Final
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Expiration Date (as defined hereinafter), the Warrant Certificate may be
transferred, split up, combined or exchanged for another Warrant Certificate or
Warrant Certificates, entitling the registered holder to purchase a like number
of shares of Common Stock as the Warrant Certificate or Warrant Certificates
surrendered then entitled such holder to purchase. Any registered holder
desiring to transfer, split up, combine or exchange any Warrant Certificate or
Warrant Certificates shall make such request in writing delivered to the
Company, and shall surrender the Warrant Certificate or Warrant Certificates to
be transferred, split up, combined or exchanged at the principal office of the
Company. Thereupon the Company shall deliver to the person entitled thereto a
Warrant Certificate or Warrant Certificates, as the case may be, as so
requested.
(d) Subsequent Issue of Warrant Certificates. Subsequent to their
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original issuance, no Warrant Certificates shall be issued except (a) Warrant
Certificates issued upon any transfer, combination, split up or exchange of
Warrants pursuant to Section 2.3 hereof, (b) Warrant Certificates issued in
replacement of mutilated, destroyed, lost or stolen Warrant Certificates, and
(c) Warrant Certificates issued pursuant to Section 2.5 hereof upon the partial
exercise of any Warrant Certificate to evidence the unexercised portion of such
Warrant
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Certificate.
3. EXERCISE OF WARRANTS; EXERCISE PRICE; EXPIRATION DATE OF WARRANTS.
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(a) The registered holder of any Warrant Certificate may exercise
the Warrants evidenced thereby (except as otherwise provided herein)
in whole or in part upon surrender of the Warrant Certificate, with
the form of election to purchase on the reverse side thereof duly
executed, to the Company at its principal office, together with
payment of the Exercise Price for each share of Common Stock as to
which the Warrants are exercised, at or prior to the close of business
on April 30, 2003 (the "FINAL EXPIRATION DATE").
(b) The exercise price for each share of Common Stock pursuant to
the exercise of a Warrant shall initially be $15.00 per share of
Common Stock issuable upon exercise of the Warrant (the "EXERCISE
PRICE"), shall be subject to adjustment from time to time as provided
in Section 6 hereof and shall be payable in accordance with paragraph
(c) below.
(c) Upon receipt of a Warrant Certificate representing
exercisable Warrants, with the form of election to purchase duly
executed, accompanied by payment of the Exercise Price for the shares
to be purchased and an amount equal to any applicable transfer tax
required to be paid by the holder of such Warrant Certificate in
accordance with Section 5 hereof in cash, or by certified check or
cashier's check payable to the order of the Company, the Company shall
thereupon promptly (i) requisition from any transfer agent of the
Common Stock certificates for the number of shares of Common Stock to
be purchased and the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests, (ii) when
appropriate, requisition from the Company the amount of cash to be
paid in lieu of issuance of fractional shares in accordance with
Section 7 hereof, (iii) after receipt of such certificates, cause the
same to be delivered to or upon the order of the registered holder of
such Warrant Certificate, registered in such name or names as may be
designated by such holder and (iv) when appropriate, after receipt,
deliver such cash to or upon the order of the registered holder of
such Warrant Certificate.
(d) In case the registered holder of any Warrant Certificate
shall exercise less than all the Warrants evidenced thereby, a new
Warrant Certificate evidencing Warrants equivalent to the Warrants
remaining unexercised shall be issued by the Company to the registered
holder of such Warrant Certificate or to its duly authorized assigns,
subject to the provisions of Section 7 hereof.
4. CANCELLATION AND DESTRUCTION OF WARRANT CERTIFICATES. All Warrant
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Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall when surrendered to the Company be canceled by it,
and no Warrant Certificates shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Agreement.
5. RESERVATION AND AVAILABILITY OF COMMON STOCK.
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(a) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued shares
of Common Stock or any shares of Common Stock held in its treasury,
that number of shares of Common Stock that will from time to time be
sufficient to permit the exercise in full of all outstanding Warrants.
(b) The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all shares of Common Stock
delivered upon the exercise of Warrants shall, at the time of delivery
of the certificates for such shares of Common Stock (subject to
payment of the Exercise Price), be duly authorized, validly issued,
fully paid and nonassessable shares.
(c) The Company further covenants and agrees that it will pay
when due and payable any and all federal and state transfer taxes and
charges which may be payable in respect of the issuance or delivery of
the Warrant Certificates or of any shares of Common Stock upon the
exercise of Warrants.
6. NO DILUTION OR IMPAIRMENT.
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(a) Calculation of Exercise Quantity. The Company acknowledges
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that the initial Exercise Quantity was calculated based upon an intention that
the full exercise of the Warrant would result in the Bank Holders obtaining
shares of Common Stock constituting a percentage of the Company's Common Stock,
options, warrants (including the Warrant), convertible securities, securities
and other rights (in each case whether now existing or hereafter issued or
arising) to acquire from the Company shares of Common Stock ("COMMON STOCK
EQUIVALENTS") outstanding as of the date of exercise of the Warrant (based on
4,078,560 shares of Common Stock currently issued or reserved for issuance upon
conversion of outstanding Common Stock Equivalents as of the date hereof). It is
the intent of the parties hereto that after giving effect to the exercise in
full of the Warrant, the Bank Holders' ownership of the Common Stock and Common
Stock Equivalents will be on a fully diluted basis, which may be reduced as a
consequence of (i) an issuance by the Company of up to 100,000 shares of Common
Stock or Common Stock Equivalents in respect of an employee stock option plan
adopted by the Company's Board of Directors or (ii) an issuance of shares in
connection with the Company's initial public offering, or any subsequent
issuances.
(b) Adjustment of Purchase Price and Number of Shares.
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The Exercise Quantity and the Exercise Price shall be subject to
adjustment from time to time upon the occurrence of certain events as follows:
(i) Reclassification, Consolidation or Merger. In case of any
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reclassification or change of outstanding securities of the class issuable upon
exercise of this Warrant (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination), or in case of any consolidation or merger of the Company with
or into another corporation, or in case of any sale of all or substantially all
of the assets of the Company, or in case of a share exchange in which 80% or
more of the outstanding capital stock of the Company is exchanged for capital
stock of another
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corporation, any of which transactions shall be referred to hereinafter as a
"Corporate Transaction," the Holder shall have the right to receive the type and
amount of shares of stock and other securities and property to which such Holder
would have been entitled if it had received Common Stock by exercise of this
Warrant immediately prior to such Corporate Transaction, and the Exercise Price
shall be adjusted accordingly.
(ii) Subdivision or Combination of Shares. If the Company at
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any time while this Warrant remains outstanding and unexpired shall subdivide or
combine its Common Stock, the Exercise Price shall be proportionately decreased
in the case of a subdivision or increased in the case of a combination.
(iii) Stock Dividends. If the Company at any time while this
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Warrant is outstanding and unexpired shall pay a dividend of Common Stock with
respect to Common Stock payable in, or make any other distribution with respect
to Common Stock, then the Exercise Price shall be adjusted, from and after the
date of determination of shareholders entitled to receive such dividend or
distribution, to that price determined by multiplying the Exercise Price in
effect immediately prior to such date of determination by a fraction, the
numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution and the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution.
(iv) Adjustment of Number of Shares. Upon each adjustment in the
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Exercise Price, the number of shares of Common Stock purchasable hereunder shall
be adjusted, to the nearest whole share, to the product obtained by multiplying
the number of shares purchasable immediately prior to such adjustment of the
Exercise Price by a fraction, the numerator of which shall be the Exercise Price
immediately prior to such adjustment and the denominator of which shall be the
Exercise Price immediately thereafter.
(v) No Impairment. The Company will not, by amendment of any
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of its organizational documents or through reorganization, consolidation,
merger, dissolution, issue or sale of securities, sale of assets or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Agreement or the Warrant or impair the ability of the Bank
Holders to realize the full intended economic value thereof, but will at all
times in good faith assist in the carrying out of all such terms, and of the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the Bank Holders against dilution or other impairment.
7. FRACTIONAL SHARES.
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(a) The Company shall not be required to issue fractions of shares of
Common Stock upon exercise of the Warrants or to distribute certificates which
evidence fractional shares of Common Stock. In lieu of fractional shares of
Common Stock, the Company shall pay to the registered holders of Warrant
Certificates at the time such Warrants are exercised as herein provided an
amount in cash equal to the same fraction of the current market value of one
share of Common Stock.
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(b) For purposes of this Section 7, the current market value of a
share of Common Stock shall be the closing price per share of Common Stock on
the date of determination. The closing price for any day shall be the last sale
price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Common Stock is not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which the Common Stock is listed or admitted to trading or, if the Common
Stock is not listed or admitted to trading on any national securities exchange,
the last quoted price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ")
or such other system then in use, or, if on any such date the Common Stock is
not quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in the Common
Stock selected by the Board of Directors. If the Common Stock is not publicly
held or so listed or traded, the current market value shall mean the fair value
per share as determined in good faith by an independent appraiser selected by
the Agent at the expense of the Company, whose determination shall be
conclusive.
8. "PIGGYBACK" REGISTRATION. If at any time the Company determines
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to register under the Securities Act of 1933, as amended (including pursuant to
a demand of any security holder of the Company exercising registration rights),
any of its Common Stock (except securities to be issued solely in connection
with any acquisition of any entity or business, shares issuable solely upon
exercise of stock options, shares issuable solely pursuant to employee benefit
plans or shares to be registered on any registration form that does not permit
secondary sales), it must give each Bank, written notice of such determination
at least thirty (30) days prior to each such filing. If, within fifteen (15)
days after receipt of such notice, any Bank Holder so requests in writing, the
Company must include in such registration statement (to the extent permitted by
applicable regulation) all or any part of such Bank Holders' warrants and the
shares of Common Stock (or other securities representing Common Stock)
purchasable or purchased from time to time under such Bank Holders' warrants
(collectively, "REGISTRABLE SECURITIES") that such Bank Holder requests to be
registered; provided, however, that the Bank Holders' registration rights shall
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be subordinate in their entirety to the registration rights of the holders of
the Series A Preferred Stock of the Company and the Bank Holders shall only be
able to include such securities in any registration to the extent that the
inclusion thereof will not reduce the amount of Registrable Securities (as
defined in that certain Investor Rights Agreement dated June 5, 1995 between the
Company and SpaceVest Fund, L.P.) of the holders of the Series A Preferred
Stock. Any Registrable Securities which are included in any underwritten
offering under this Section 8 will be sold upon such terms as the managing
underwriters reasonably request. If such managing underwriter determines that a
cutback in the number of shares to be registered is necessary, such cut back
shall be effected on a pro rata basis among the shareholders of the Company
requesting registration and the Bank. If any Bank Holder disapproves of the
terms of such underwriting, such Bank Holder may elect to withdraw therefrom by
written notice to the Company and the underwriter.
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9. AGREEMENT OF WARRANT HOLDERS. Every holder of a Warrant, by
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accepting the same, consents and agrees with the Company and with every other
holder of a Warrant that:
(a) the Warrant Certificates are transferable only on the
registry books of the Company if surrendered at its principal offices,
duly endorsed or accompanied by a proper instrument of transfer; and
(b) the Company may deem and treat the person in whose name the
Warrant Certificate is registered as the absolute owner thereof and of
the Warrants evidenced thereby (notwithstanding any notations of
ownership or writing on the Warrant Certificates made by anyone other
than the Company) for all purposes whatsoever, and the Company shall
not be affected by any notice to the contrary.
10. WARRANT CERTIFICATE HOLDER NOT DEEMED A SHAREHOLDER. No holder,
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as such, of any Warrant Certificate shall be entitled to vote, receive dividends
or be deemed for any purpose the holder of the shares of Common Stock or any
other securities of the Company which may at any time be issuable on the
exercise of the Warrants represented thereby, nor shall anything contained
herein or in any Warrant Certificate be construed to confer upon the holder of
any Warrant Certificate, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or withhold consent
to any corporate action, or to receive notice of meetings or other actions
affecting stockholders, or to receive dividends or subscription rights, or
otherwise, until the Warrant or Warrants evidenced by such Warrant Certificate
shall have been exercised in accordance with the provisions hereof.
11. ISSUANCE OF NEW WARRANT CERTIFICATES. Notwithstanding any of the
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provisions of this Agreement or of the Warrants to the contrary, the Company
may, at its option, issue new Warrant Certificates evidencing Warrants in such
form as may be approved by its Board of Directors to reflect any adjustment or
change in the Exercise Price and the number or kind or class of shares or other
securities or property purchasable under the Warrant.
12. SUCCESSORS AND ASSIGNS. The terms of this Agreement shall be
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binding upon the Company and the Bank Holders and their respective successors
and assigns.
13. GOVERNING LAW: CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
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THIS AGREEMENT AND ALL RELATED INSTRUMENTS AND AGREEMENTS SHALL BE DEEMED TO BE
CONTRACTS MADE IN THE COMMONWEALTH OF PENNSYLVANIA, AND SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
(WITHOUT GIVING EFFECT TO CONFLICT OF LAWS) AND THE UNITED STATES OF AMERICA.
WITHOUT EXCLUDING ANY OTHER JURISDICTION, THE BANK HOLDERS AND THE COMPANY AGREE
THAT THE STATE AND FEDERAL COURTS OF PENNSYLVANIA LOCATED IN ALLEGHENEY COUNTY,
PENNSYLVANIA SHALL HAVE NON-EXCLUSIVE JURISDICTION OVER PROCEEDINGS IN
CONNECTION HEREWITH. THE COMPANY HEREBY WAIVES ANY RIGHT THAT IT MAY HAVE TO A
TRIAL BY JURY OF ANY DISPUTE
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(WHETHER A CLAIM IN TORT, CONTRACT, EQUITY, OR OTHERWISE) ARISING UNDER OR
RELATING TO THIS AGREEMENT OR ANY RELATED MATTERS, AND AGREE THAT ANY SUCH
DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
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WITNESS the due execution of this Warrant Agreement as of the date first
above written.
ATTEST: ANALYTICAL GRAPHICS, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------- ----------------------------(SEAL)
Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: CONTROLLER -- AGI Title: CFO
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PNC BANK, NATIONAL ASSOCIATION, both
individually and as Agent
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------(SEAL)
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: VP
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TRANSAMERICA BUSINESS
CREDIT CORPORATION
By:/s/ ▇▇▇ ▇▇▇▇▇▇▇▇
-----------------(SEAL)
Print Name: ▇▇▇ ▇▇▇▇▇▇▇▇
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Title: SVP
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SCHEDULE I
ALLOCATION OF WARRANTS
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Upon Funding of First Tranche
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SHARES AS OF
BANK % OF TOTAL WARRANTS CLOSING DATE
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PNC Bank, National Association 50% 20,000
Transamerica Business Credit Corporation 50% 20,000
Total: 100% 40,000
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THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR QUALIFIED UNDER APPLICABLE STATE
SECURITIES LAWS. THIS WARRANT AND SUCH SHARES MAY BE OFFERED, SOLD OR
TRANSFERRED ONLY IN COMPLIANCE WITH THE REQUIREMENTS OF SUCH ACT AND OF ANY
APPLICABLE STATE SECURITIES LAWS.
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THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF ARE SUBJECT TO
THE TERMS AND PROVISIONS OF THAT WARRANT AGREEMENT DATED AS OF MAY 1, 1998 AMONG
ANALYTICAL GRAPHICS, INC. (THE "COMPANY") AND PNC BANK, NATIONAL ASSOCIATION, AS
AGENT, AND THE BANKS PARTY THERETO (THE "BANKS") (AS THE SAME MAY BE
SUPPLEMENTED, MODIFIED, AMENDED, EXTENDED OR RESTATED FROM TIME TO TIME, THE
"WARRANT AGREEMENT"). AMONG OTHER THINGS, THE WARRANT AGREEMENT CONTAINS
PROVISIONS FOR PUTS, RESTRICTIONS ON TRANSFER AND REGISTRATION RIGHTS. A COPY OF
THE WARRANT AGREEMENT IS AVAILABLE AT THE EXECUTIVE OFFICES OF THE COMPANY.
COMMON STOCK PURCHASE WARRANT
MAY [ ], 1998
Capitalized terms used and not otherwise defined in this Warrant shall
have the meanings respectively assigned to them in the Warrant Agreement
referred to in the legend above and in that certain Loan Agreement dated as of
May 1, 1998 among the Company, the Agent and the Banks, as the same has been or
may be supplemented, modified, amended, renewed or restated from time to time
(the "LOAN AGREEMENT"). The Company certifies and agrees that PNC Bank,
National Association and its successors and assigns are entitled to purchase
from the Company an Exercise Quantity initially equal to [ ] shares of
the Company's Common Stock, par value $.01 per share (the "COMMON STOCK"), all
upon the terms and provisions and subject to adjustment as provided in the
Warrant Agreement and this Common Stock Purchase Warrant (the "WARRANT"). The
exercise price per share of Common Stock for which this Warrant is exercisable
shall be $[ ] per share, as adjusted from time to time pursuant to the
terms of this Warrant and the Warrant Agreement (the "EXERCISE PRICE").
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1. Exercise of Warrant.
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1.1 This Warrant may be exercised by the Holder of this Warrant at any
time during the term hereof in whole, or in part from time to time
(but not for fractional
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shares), by presentation and surrender of this Warrant to the Company,
together with the Exercise Form, in the form attached hereto as
Exhibit A-1 (the "EXERCISE FORM"), duly completed and executed and
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payment in the aggregate amount equal to the Exercise Price multiplied
by the number of shares of Common Stock being purchased. At the option
of Holder, payment of the Exercise Price may be made either by (i)
check payable to the order of the Company, (ii) surrender of
certificates then held representing, or deduction from the number of
shares issuable upon exercise of this Warrant, that number of shares
which has an aggregate fair market value on the date of exercise equal
to the aggregate Exercise Price for all shares to be purchased
pursuant to this Warrant or (iii) by any combination of the foregoing
methods. Upon the Company's receipt of this Warrant, the completed and
signed Exercise Form and the requisite payment, the Company shall
issue and deliver (or cause to be delivered) to the exercising Holder
stock certificates aggregating the number of shares of Common Stock
purchased. In the event of a partial exercise of this Warrant, the
Company shall issue and deliver to the Holder a new Warrant at the
same time such stock certificates are delivered, which new Warrant
shall entitle the Holder to purchase the balance of the Exercise
Quantity not purchased in that partial exercise and shall otherwise be
upon the same terms and provisions as this Warrant.
1.2 In the event the Holder of this Warrant desires that any or all of the
stock certificates to be issued upon the exercise hereof be registered
in a name or names other than that of the Holder of this Warrant, the
Holder must so request in writing at the time of exercise, and pay to
the Company funds sufficient to pay all stock transfer taxes (if any)
payable in connection with the transfer and delivery of such stock
certificates.
1.3 Upon the due exercise by the Holder of this Warrant, whether in whole
or in part, that Holder (or any other person to whom a stock
certificate is to be so issued) shall be deemed for all purposes to
have become the Holder of record of the shares of Common Stock for
which this Warrant has been so exercised, effective immediately prior
to the close of business on the date this Warrant, the completed and
signed Exercise Form and the requisite payment are duly delivered to
the Company, irrespective of the date of actual delivery of
certificates representing such shares of Common Stock so issued.
3. Surrender of Warrant; Expenses.
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3.1 Whether in connection with the exercise, exchange, registration of
transfer, replacement or put of this Warrant, surrender of this
Warrant shall be made to the Company during normal business hours on a
Business Day (unless the Company otherwise permits) at the executive
offices of the Company located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other office or duly authorized
representative of the Company as from time to time may be designated
by the Company by written notice given to the Holder of this Warrant.
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3.2 The Company shall pay all costs and expenses incurred in connection
with the exercise, registering, exchange, transfer, replacement or put
of this Warrant, including the costs of preparation, execution and
delivery of warrants and stock certificates, and shall pay all taxes
(other than any taxes measured by the income of any Person other than
the Company) and other charges imposed by law payable in connection
with the transfer or replacement of this Warrant.
4. Warrant Register, Exchange, Transfer, Loss.
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4.1 The Company at all times shall maintain at its chief executive offices
an open register for the Warrant, in which the Company shall record
the name and address of each Holder to whom a Warrant has been issued
or transferred, the number of shares of Common Stock or other
securities purchasable thereunder and the corresponding purchase
prices.
4.2 This Warrant may be exchanged for two or more warrants entitling the
Holder hereof to purchase the same aggregate Exercise Quantity at the
same Exercise Price per share and otherwise having the same terms and
provisions as this Warrant. The Holder may request such an exchange by
surrender of this Warrant to the Company, together with a written
exchange request specifying the desired number of warrants and
allocation of the Exercise Quantity purchasable under the existing
Warrant.
4.3 Subject to the provisions of Section 9 of the Warrant Agreement, this
Warrant may be transferred, in whole or in part, by the Holder or any
duly authorized representative of such Holder. A transfer may be
registered with the Company by submission to it of this Warrant,
together with an Assignment Form, in the form of Exhibit A-2 (the
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"ASSIGNMENT FORM"), duly completed and executed. Within five (5)
Business Days after the Company's receipt of this Warrant and the
Assignment Form so completed and executed, the Company will issue and
deliver to the transferee a new Warrant representing the portion of
the Exercise Quantity transferred at the same Exercise Price per share
and otherwise having the same terms and provisions as this Warrant,
which the Company will register in the new Holder's name.
4.4 In the event of the loss, theft or destruction of this Warrant, the
Company shall execute and deliver an identical new Warrant to the
Holder in substitution therefor upon the Company's receipt of (i)
evidence reasonably satisfactory to the Company of such event (with
the affidavit of an institutional Holder being sufficient evidence),
and (ii) if requested by the Company, an indemnity agreement from any
institutional Holder or an indemnity bond from anyone else reasonably
satisfactory in form and amount to the Company.
5. Rights and Obligations of the Company and the Warrant Holder. The Company
------------------------------------------------------------
and the
13
Holders of this Warrant are entitled to the rights and bound by the
obligations set forth in the Warrant Agreement, all of which rights and
obligations are hereby incorporated by reference herein. This Warrant shall
not entitle its Holder to any rights of a stockholder in the Company (other
than as provided in Section 2.3 of this Warrant).
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized representative and its corporate seal, if any, to be
impressed hereupon and attested to by its Secretary or Assistant Secretary.
ANALYTICAL GRAPHICS, INC.
By__________________________________
Its_________________________________
Attest:
______________________________
Secretary
14
Exhibit A-1
-----------
COMMON STOCK WARRANT
--------------------
EXERCISE FORM
-------------
Analytical Graphics, Inc.
Attention: President
_______________________________
_______________________________
The undersigned Holder of the attached Warrant hereby irrevocably
elects to exercise the within Warrant to the extent of _____ shares of Common
Stock, $.01 par value per share, of the Company, and
(i) encloses a check (payable to the order of the Company) in the
amount of $ __________ in payment of the purchase price thereof; and/or
(ii) hereby authorizes the deduction of ______shares in payment of the
Exercise Price.
Instructions For Registering The Securities
On The Stock Transfer Books Of The Company
Name of Transferee: __________________________________________
State of Organization (if applicable):______________________________
Federal Tax Identification or
Social Security Number:______________________________________
Address: ___________________________________________________
If this exercise of the Warrant is not an exercise in full, then the
undersigned Holder hereby requests that a new Warrant of like tenor (exercisable
for the balance of the shares of Common Stock underlying this Warrant) be issued
and delivered to the undersigned Holder at the address on the warrant register
of the Company.
Dated:_______________________ _____________________________________________
(Name of Registered Holder - Please Print)
By___________________________________________
(Signature of Registered Holder or
of Duly Authorized Signatory)
Title________________________________________
-▇▇-
▇▇▇▇▇▇▇ ▇-▇
-----------
COMMON STOCK WARRANT
--------------------
ASSIGNMENT FORM
---------------
For Value Received, the undersigned Holder of the attached Warrant
hereby sells, assigns and transfers to the transferee whose name and address are
set forth below all of the rights of the undersigned under the within Warrant
(to the extent of the portion of the within Warrant being transferred hereby,
which portion is ___________________).
Name of Transferee: __________________________________________
State of Organization (if applicable):_________________________
Federal Tax Identification or
Social Security Number:_______________________________________
Address:_______________________________________________________
If this transfer is not a transfer of the Warrant in full, then the
undersigned hereby requests that, as provided in the within Warrant, a new
warrant of like tenor respecting the balance of the Exercise Quantity not being
transferred pursuant hereto be issued in the name of and delivered to, the
undersigned. The undersigned does hereby irrevocably constitute and appoint
__________________________________ attorney to register the foregoing transfer
on the books of the Company maintained for that purpose, with full power of
substitution in the premises.
Dated:_______________________ _____________________________________________
(Name of Registered Holder - Please Print)
By___________________________________________
(Signature of Registered Holder or
of Duly Authorized Signatory)
Title________________________________________
-17-
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (the "AGREEMENT") is executed this 1st day of May,
1998 by ANALYTICAL GRAPHICS, INC., a Pennsylvania corporation (the "COMPANY"),
in favor of PNC BANK, NATIONAL ASSOCIATION ("PNC").
Pursuant to that certain Loan Agreement of even date herewith among the
Company, PNC, in its capacity as agent, and the Banks party thereto (the "LOAN
AGREEMENT"), the Banks have agreed to make a Term Loan to the Company, such Term
Loan to consist of an initial tranche of $3,000,000 (the "FIRST TRANCHE") and a
second tranche of $1,000,000 (the "SECOND TRANCHE"). In consideration of the
services provided to the Company by PNC as Agent with respect to the Term Loan,
the Company has agreed to issue to PNC (sometimes referred to herein, together
with the Banks as the "BANK HOLDERS"), warrants (each a "WARRANT") to purchase
up to Twelve Thousand Five Hundred (12,500) shares in the aggregate (the
"EXERCISE QUANTITY"), subject to the adjustments herein provided, of the common
stock of the Company, par value $.01 per share (the "COMMON STOCK").
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing, and intending to be
legally bound hereby, the Company and PNC agree as follows:
1. GRANT OF WARRANT. In consideration for services provided by PNC with
----------------
respect to the Term Loan, the Company hereby grants to PNC a Warrant to purchase
up to that number of shares which constitute the Exercise Quantity of the Common
Stock on the date of such purchase. The Agent and any subsequent registered
holders of the Warrants have the rights and obligations provided for in the form
of warrant and in this Agreement. Upon the Funding of the First Tranche, the
Company shall deliver to PNC Warrants exercisable into an aggregate of 12,500
shares of Common Stock at the Exercise Price.
2. WARRANT CERTIFICATE.
-------------------
(a) Form of Warrant Certificate. The Warrant shall be evidenced by a
---------------------------
certificate ("WARRANT CERTIFICATE"), which Warrant Certificate (and the form of
election to purchase Common Stock and of assignment to be attached thereto)
shall be substantially the same as Exhibit A hereto and may have such marks of
---------
identification or designations and such legends, summaries, or endorsements
printed thereon as the Company may deem appropriate and which are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrant may from time to time be listed. The Warrant Certificate shall entitle
the holder thereof to purchase such number of shares of Common Stock as shall be
set forth therein at the Exercise Price (as set forth herein) at such time
or times as the holder may elect in its sole discretion, but the number of such
shares of Common Stock and the Exercise Price shall be subject to adjustment as
provided herein. The Warrants shall also provide for a net issuance option
allowing each holder thereof to surrender such Warrant and receive in exchange
therefor shares of Common Stock having a fair market value equal to the product
of (i) the number of shares of Common Stock into which such Warrant is then
exercisable multiplied by (ii) the difference of (A) fair market value of each
share of Common Stock on the date of surrender less (B) the per share exercise
price of such Warrant on the date of surrender.
(b) Countersignature and Registration.
---------------------------------
(i) The Warrant Certificates shall be executed on behalf of the
Company by its Chairman of the Board, its President or any Vice President,
either manually or by facsimile signature, shall have affixed thereto the
Company's seal or a facsimile thereof, and shall be attested by the
Secretary or Assistant Secretary of the Company, either manually or by
facsimile signature.
(ii) The Company will keep or cause to be kept, at its principal
office, books for the registration and transfer of the Warrant Certificate
issued hereunder.
(c) Transfer, Split-Up, Combination and Exchange of Warrant
-------------------------------------------------------
Certificates. At any time prior to the close of business on the Final
------------
Expiration Date (as defined hereinafter), the Warrant Certificate may be
transferred, split up, combined or exchanged for another Warrant Certificate or
Warrant Certificates, entitling the registered holder to purchase a like number
of shares of Common Stock as the Warrant Certificate or Warrant Certificates
surrendered then entitled such holder to purchase. Any registered holder
desiring to transfer, split up, combine or exchange any Warrant Certificate or
Warrant Certificates shall make such request in writing delivered to the
Company, and shall surrender the Warrant Certificate or Warrant Certificates to
be transferred, split up, combined or exchanged at the principal office of the
Company. Thereupon the Company shall deliver to the person entitled thereto a
Warrant Certificate or Warrant Certificates, as the case may be, as so
requested.
(d) Subsequent Issue of Warrant Certificates. Subsequent to their
----------------------------------------
original issuance, no Warrant Certificates shall be issued except (a) Warrant
Certificates issued upon any transfer, combination, split up or exchange of
Warrants pursuant to Section 2.3 hereof, (b) Warrant Certificates issued in
replacement of mutilated, destroyed, lost or stolen Warrant Certificates, and
(c) Warrant Certificates issued pursuant to Section 2.5 hereof upon the partial
exercise of any Warrant Certificate to evidence the unexercised portion of such
Warrant Certificate.
3. Exercise of Warrants; Exercise Price; Expiration Date of Warrants.
-----------------------------------------------------------------
(a) The registered holder of any Warrant Certificate may exercise the
Warrants evidenced thereby (except as otherwise provided herein) in whole
or in part upon surrender of the Warrant Certificate, with the form of
election to purchase on the reverse side thereof duly executed, to the
Company at its principal office, together with
-2-
payment of the Exercise Price for each share of Common Stock as to which
the Warrants are exercised, at or prior to the close of business on April
30, 2003 (the "FINAL EXPIRATION DATE").
(b) The exercise price for each share of Common Stock pursuant to the
exercise of a Warrant shall initially be $15.00 per share of Common Stock
issuable upon exercise of the Warrant (the "EXERCISE PRICE"), shall be
subject to adjustment from time to time as provided in Section 6 hereof and
shall be payable in accordance with paragraph (c) below.
(c) Upon receipt of a Warrant Certificate representing exercisable
Warrants, with the form of election to purchase duly executed, accompanied
by payment of the Exercise Price for the shares to be purchased and an
amount equal to any applicable transfer tax required to be paid by the
holder of such Warrant Certificate in accordance with Section 5 hereof in
cash, or by certified check or cashier's check payable to the order of the
Company, the Company shall thereupon promptly (i) requisition from any
transfer agent of the Common Stock certificates for the number of shares of
Common Stock to be purchased and the Company hereby irrevocably authorizes
its transfer agent to comply with all such requests, (ii) when appropriate,
requisition from the Company the amount of cash to be paid in lieu of
issuance of fractional shares in accordance with Section 7 hereof, (iii)
after receipt of such certificates, cause the same to be delivered to or
upon the order of the registered holder of such Warrant Certificate,
registered in such name or names as may be designated by such holder and
(iv) when appropriate, after receipt, deliver such cash to or upon the
order of the registered holder of such Warrant Certificate.
(d) In case the registered holder of any Warrant Certificate shall
exercise less than all the Warrants evidenced thereby, a new Warrant
Certificate evidencing Warrants equivalent to the Warrants remaining
unexercised shall be issued by the Company to the registered holder of such
Warrant Certificate or to its duly authorized assigns, subject to the
provisions of Section 7 hereof.
4. CANCELLATION AND DESTRUCTION OF WARRANT CERTIFICATES. All Warrant
----------------------------------------------------
Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall when surrendered to the Company be canceled by it,
and no Warrant Certificates shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Agreement.
5. RESERVATION AND AVAILABILITY OF COMMON STOCK.
--------------------------------------------
(a) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued shares of
Common Stock or any shares of Common Stock held in its treasury, that
number of shares of Common Stock that will from time to time be sufficient
to permit the exercise in full of all outstanding Warrants.
(b) The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all shares of Common Stock
delivered upon the exercise of Warrants shall, at the time of delivery of
the certificates for such shares of Common
-3-
Stock (subject to payment of the Exercise Price), be duly authorized,
validly issued, fully paid and nonassessable shares.
(c) The Company further covenants and agrees that it will pay when
due and payable any and all federal and state transfer taxes and charges
which may be payable in respect of the issuance or delivery of the Warrant
Certificates or of any shares of Common Stock upon the exercise of
Warrants.
6. NO DILUTION OR IMPAIRMENT
-------------------------
(a) Calculation of Exercise Quantity. The Company acknowledges that
--------------------------------
the initial Exercise Quantity was calculated based upon an intention that the
full exercise of the Warrant would result in the Bank Holders obtaining shares
of Common Stock constituting a percentage of the Company's Common Stock,
options, warrants (including the Warrant), convertible securities, securities
and other rights (in each case whether now existing or hereafter issued or
arising) to acquire from the Company shares of Common Stock ("COMMON STOCK
EQUIVALENTS") outstanding as of the date of exercise of the Warrant (based on
4,078,560 shares of Common Stock currently issued or reserved for issuance upon
conversion of outstanding Common Stock Equivalents as of the date hereof). It
is the intent of the parties hereto that after giving effect to the exercise in
full of the Warrant, the Bank Holders' ownership of the Common Stock and Common
Stock Equivalents will be a fully diluted basis, which may be reduced as a
consequence of (i) an issuance by the Company of up to 100,000 shares of Common
Stock or Common Stock Equivalents in respect of an employee stock option plan
adopted by the Company's Board of Directors or (ii) an issuance of shares in
connection with the Company's initial public offering or any subsequent
issuances.
(b) Adjustment of Purchase Price and Number of Shares.
-------------------------------------------------
The Exercise Quantity and the Exercise Price shall be subject to adjustment
from time to time upon the occurrence of certain events as follows:
(i) Reclassification, Consolidation or Merger. In case of any
-----------------------------------------
reclassification or change of outstanding securities of the class issuable upon
exercise of this Warrant (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination), or in case of any consolidation or merger of the Company with
or into another corporation, or in case of any sale of all or substantially all
of the assets of the Company, or in case of a share exchange in which 80% or
more of the outstanding capital stock of the Company is exchanged for capital
stock of another corporation, any of which transactions shall be referred to
hereinafter as a "Corporate Transaction," the Holder shall have the right to
receive the type and amount of shares of stock and other securities and property
to which such Holder would have been entitled if it had received Common Stock by
exercise of this Warrant immediately prior to such Corporate Transaction, and
the Exercise Price shall be adjusted accordingly.
(ii) Subdivision or Combination of Shares. If the Company at any
------------------------------------
time while this Warrant remains outstanding and unexpired shall subdivide or
combine its
-4-
Common Stock, the Exercise Price shall be proportionately decreased in the case
of a subdivision or increased in the case of a combination.
(iii) Stock Dividends. If the Company at any time while this
---------------
Warrant is outstanding and unexpired shall pay a dividend of Common Stock with
respect to Common Stock payable in, or make any other distribution with respect
to Common Stock, then the Exercise Price shall be adjusted, from and after the
date of determination of shareholders entitled to receive such dividend or
distribution, to that price determined by multiplying the Exercise Price in
effect immediately prior to such date of determination by a fraction, the
numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution and the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution.
(iv) Adjustment of Number of Shares. Upon each adjustment in
------------------------------
the Exercise Price, the number of shares of Common Stock purchasable hereunder
shall be adjusted, to the nearest whole share, to the product obtained by
multiplying the number of shares purchasable immediately prior to such
adjustment of the Exercise Price by a fraction, the numerator of which shall be
the Exercise Price immediately prior to such adjustment and the denominator of
which shall be the Exercise Price immediately thereafter.
(v) No Impairment. The Company will not, by amendment of any
-------------
of its organizational documents or through reorganization, consolidation,
merger, dissolution, issue or sale of securities, sale of assets or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Agreement or the Warrant or impair the ability of PNC to
realize the full intended economic value thereof, but will at all times in good
faith assist in the carrying out of all such terms, and of the taking of all
such action as may be necessary or appropriate in order to protect the rights of
PNC against dilution or other impairment.
7. FRACTIONAL SHARES
-----------------
(a) The Company shall not be required to issue fractions of shares of
Common Stock upon exercise of the Warrants or to distribute certificates which
evidence fractional shares of Common Stock. In lieu of fractional shares of
Common Stock, the Company shall pay to the registered holders of Warrant
Certificates at the time such Warrants are exercised as herein provided an
amount in cash equal to the same fraction of the current market value of one
share of Common Stock.
(b) For purposes of this Section 7, the current market value of a
share of Common Stock shall be the closing price per share of Common Stock on
the date of determination. The closing price for any day shall be the last sale
price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Common Stock is not listed or admitted to trading on the New York Stock
Exchange, as reported
-5-
in the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which the
Common Stock is listed or admitted to trading or, if the Common Stock is not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the National Association
of Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or such other
system then in use, or, if on any such date the Common Stock is not quoted by
any such organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the Common Stock
selected by the Board of Directors. If the Common Stock is not publicly held or
so listed or traded, the current market value shall mean the fair value per
share as determined in good faith by an independent appraiser selected by PNC at
the expense of the Company, whose determination shall be conclusive.
8. "PIGGYBACK" REGISTRATION. If at any time the Company determines to
-----------------------
register under the Securities Act of 1933, as amended (including pursuant to a
demand of any security holder of the Company exercising registration rights),
any of its Common Stock (except securities to be issued solely in connection
with any acquisition of any entity or business, shares issuable solely upon
exercise of stock options, shares issuable solely pursuant to employee benefit
plans or shares to be registered on any registration form that does not permit
secondary sales), it must give to PNC, written notice of such determination at
least thirty (30) days prior to each such filing. If, within fifteen (15) days
after receipt of such notice, PNC so requests in writing, the Company must
include in such registration statement (to the extent permitted by applicable
regulation) all or any part of PNC's warrants and the shares of Common Stock (or
other securities representing Common Stock) purchasable or purchased from time
to time under such PNC's warrants (collectively, "REGISTRABLE SECURITIES") that
PNC requests to be registered; provided, however, that PNC's registration rights
-------- -------
shall be subordinate in their entirety to the registration rights of the holders
of the Series A Preferred Stock of the Company and PNC shall only be able to
include such securities in any registration to the extent that the inclusion
thereof will not reduce the amount of Registrable Securities (as defined in that
certain Investor Rights Agreement dated June 5, 1995 between the Company and
SpaceVest Fund, L.P.) of the holders of the Series A Preferred Stock. Any
Registrable Securities which are included in any underwritten offering under
this Section 8 will be sold upon such terms as the managing underwriters
reasonably request. If such managing underwriter determines that a cutback in
the number of shares to be registered is necessary, such cut back shall be
effected on a pro rata basis among the shareholders of the Company requesting
registration and PNC. If PNC disapproves of the terms of such underwriting, PNC
may elect to withdraw therefrom by written notice to the Company and the
underwriter.
9. AGREEMENT OF WARRANT HOLDERS. Every holder of a Warrant, by accepting
----------------------------
the same, consents and agrees with the Company and with every other holder of a
Warrant that:
(a) the Warrant Certificates are transferable only on the registry
books of the Company if surrendered at its principal offices, duly endorsed
or accompanied by a proper instrument of transfer; and
-6-
(b) the Company may deem and treat the person in whose name the
Warrant Certificate is registered as the absolute owner thereof and of the
Warrants evidenced thereby (notwithstanding any notations of ownership or
writing on the Warrant Certificates made by anyone other than the Company)
for all purposes whatsoever, and the Company shall not be affected by any
notice to the contrary.
10. WARRANT CERTIFICATE HOLDER NOT DEEMED A SHAREHOLDER. No holder, as
---------------------------------------------------
such, of any Warrant Certificate shall be entitled to vote, receive dividends or
be deemed for any purpose the holder of the shares of Common Stock or any other
securities of the Company which may at any time be issuable on the exercise of
the Warrants represented thereby, nor shall anything contained herein or in any
Warrant Certificate be construed to confer upon the holder of any Warrant
Certificate, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders, or to receive dividends or subscription rights, or otherwise,
until the Warrant or Warrants evidenced by such Warrant Certificate shall have
been exercised in accordance with the provisions hereof.
11. ISSUANCE OF NEW WARRANT CERTIFICATES. Notwithstanding any of the
------------------------------------
provisions of this Agreement or of the Warrants to the contrary, the Company
may, at its option, issue new Warrant Certificates evidencing Warrants in such
form as may be approved by its Board of Directors to reflect any adjustment or
change in the Exercise Price and the number or kind or class of shares or other
securities or property purchasable under the Warrant.
12. SUCCESSORS AND ASSIGNS. The terms of this Agreement shall be binding
----------------------
upon the Company and PNC and their respective successors and assigns.
13. GOVERNING LAW: CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. THIS
------------------------------------------------------------
AGREEMENT AND ALL RELATED INSTRUMENTS AND AGREEMENTS SHALL BE DEEMED TO BE
CONTRACTS MADE IN THE COMMONWEALTH OF PENNSYLVANIA, AND SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
(WITHOUT GIVING EFFECT TO CONFLICT OF LAWS) AND THE UNITED STATES OF AMERICA.
WITHOUT EXCLUDING ANY OTHER JURISDICTION, PNC AND THE COMPANY AGREE THAT THE
STATE AND FEDERAL COURTS OF PENNSYLVANIA LOCATED IN ALLEGHENEY COUNTY,
PENNSYLVANIA SHALL HAVE NON-EXCLUSIVE JURISDICTION OVER PROCEEDINGS IN
CONNECTION HEREWITH. THE COMPANY HEREBY WAIVES ANY RIGHT THAT IT MAY HAVE TO A
TRIAL BY JURY OF ANY DISPUTE (WHETHER A CLAIM IN TORT, CONTRACT, EQUITY, OR
OTHERWISE) ARISING UNDER OR RELATING TO THIS AGREEMENT OR ANY RELATED MATTERS,
AND AGREE THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A
JURY.
-7-
WITNESS the due execution of this Warrant Agreement as of the date first
above written.
ATTEST: ANALYTICAL GRAPHICS, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------ --------------------------
Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------- ----------------------
Title: CONTROLLER - AGI Title: CFO
------------------------ ------------------
PNC BANK,
NATIONAL ASSOCIATION,
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------
Title: VP
--------------------
-8-