Warrant - C-Cube Semiconductor Inc. and Thomson Multimedia SA
CONFIDENTIAL
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
FORM OF WARRANT
THIS WARRANT AND ANY SHARES OF COMMON STOCK ISSUED UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL
SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
________________ __, 2000
WARRANT
TO PURCHASE SHARES OF COMMON STOCK OF
C-CUBE SEMICONDUCTOR INC.
This certifies that, for the consideration received pursuant to that
certain Securities Purchase Agreement, dated as of ________ __, 2000 (the
"Purchase Agreement"), by and between C-Cube Semiconductor Inc., a Delaware
corporation (the "Company"), and Thomson Multimedia S.A., a French societe
anonyme ("Holder"), and for other value received, Holder is entitled, upon the
terms and subject to the conditions hereinafter set forth, and at or prior to
11:59 p.m., Pacific Standard Time, on _________ ___, 2007 (the "Expiration
Time"), but not thereafter, to acquire from the Company, in whole or in part,
the number of shares of common stock of the Company (the "Stock") set forth in
Section 1 hereto, at a purchase price per share as set forth in Section 1 hereto
(the "Exercise Price"). Such number of shares, type of security and Exercise
Price are subject to adjustment as provided herein, and all references to
"Stock" and "Exercise Price" herein shall be deemed to include any such
adjustment or series of adjustments, unless otherwise indicated.
1. NUMBER OF SHARES; EXERCISE PRICE; EXERCISE OF WARRANT AND PAYMENT OF
EXERCISE PRICE
(a) Number of Shares. The aggregate number of shares of Stock
under the Warrant (the "Warrant Number"), subject to adjustment as provided in
Section 8 herein, shall be equal to 949,494.
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(b) Exercise Price. The exercise price per share of Stock under
this Warrant, subject to adjustment as provided in Section 8 herein (the
"Exercise Price"), shall be equal to $19.78.
(c) Exercise of Warrant. This Warrant shall be fully vested upon
issuance, and shall become exercisable with respect to the shares on the date
which is one (1) week prior to the Expiration Time. Notwithstanding the
foregoing, this Warrant shall be exercisable in part, prior to _________ __,
2007, to the extent, and upon the satisfaction of, the conditions (each, a
"Milestone"), described below:
(i) Definitions.
A. "Design Win" shall mean Holder's completion of
one board design which incorporates the
Company's silicon, and issuance of a purchase
order by Holder for a minimum of 100 units
under the Company's "C-Cube" product name
(collectively, the "Products").
B. "Revenue" shall mean the cumulative revenue
generated since the date of this Warrant, to
the Company from the Company's sales of
Products to the Holder, net of returns and
sales taxes. (ii) Milestones in 2000. The
Warrant shall become exercisable at a rate of
[*] of the Warrant Number, up to an aggregate
of [*] of the Warrant Number, for each Design
Win on or before February 10, 2001. The date of
completion of each Design Win shall trigger the
exercisability of the related portion of the
Warrant. (iii) Milestones in Subsequent Years.
In addition to the portion of the Warrant
exercisable pursuant to subsection (ii) above,
the Warrant shall become exercisable at the
following rates (with such rate being reduced
by any portion of the Warrant already
exercisable pursuant to either subsection (ii)
or (iii) during prior year(s)), upon the
Company's cumulative generation of Revenue, as
follows:
Portion of Warrant Calendar Year
Number That Becomes -------------
Exercisable 2001 2002 2003 2004 2005 2006
---- ---- ---- ---- ---- ----
[*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*]
1 Revenue figures shown in millions in chart.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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In connection with this Section 1(c)(iii), the Company shall deliver to Holder
within 45 days subsequent to each calendar quarter, a report containing the
Revenue generated in such quarter. In the event that Revenue reported by the
Company is above 90% of a given applicable Milestone set forth above, then
Company shall deliver to Holder within 45 days subsequent to each calendar
month, a report containing the Revenue generated in such month, until such
Revenue target has been met or has passed. In the event that Holder disputes the
Revenue reported by the Company, then such dispute shall be settled by binding
arbitration in San Francisco County, California, under the rules of the American
Arbitration Association ("AAA") then in effect by a single arbitrator mutually
agreeable to Company and Holder. In the event that within 30 days after the
submission of any dispute to arbitration, Holder and Company cannot mutually
agree on a single arbitrator, then AAA shall select the arbitrator.
Subject to the above restrictions, the purchase rights represented by
this Warrant are exercisable by Holder at or prior to the Expiration Time by the
surrender of this Warrant and the notice of exercise form attached hereto as
Exhibit A (the "Notice of Exercise") duly executed, completed and delivered to
the principal offices of the Company, 1778 McCarthy Boulevard, Milpitas, CA
95035, Attn: Chief Financial Officer, with a copy to Wilson Sonsini Goodrich &
Rosati, Professional Corporation, Spear Street Tower, One Market, San Francisco,
California 94105, Attn: Steve L. Camahort, Esq. (or such other office or agency
of the Company as it may designate by notice in writing to the registered holder
hereof at the address of such holder appearing on the books of the Company). The
date appearing on the Notice of Exercise shall be the "Exercise Date." Promptly
upon receipt of the Notice of Exercise by the Company and the payment of the
purchase price in accordance with the terms set forth below, and, if exercised
prior to ______ __, 2007, subject to the satisfaction of the Milestones set
forth herein, but in no event later than fifteen (15) business days thereafter,
the Company shall issue to Holder a certificate for the number of shares of
stock purchased, shall execute the acknowledgment of exercise in the form
attached hereto as Exhibit B (the "Acknowledgment of Exercise") and issue to the
Holder a new Warrant in substantially identical form and dated as of the
Exercise Date for the purchase of that number of shares of Stock equal to the
difference, if any, between the number of shares of Stock subject hereto and the
number of shares of Stock as to which this Warrant is so exercised.
(d) Payment of Exercise Price. The Exercise Price may be paid at
Holder's election either by wire transfer of immediately available funds or
cashier's check.
2. ISSUANCE OF SHARES; NO FRACTIONAL SHARES OR SCRIP
The Company hereby represents and warrants that all shares of Stock
which may be issued upon the exercise of this Warrant will, upon such exercise,
be duly and validly authorized and issued, fully paid and nonassessable and free
from all taxes, liens and charges in respect of the issuance thereof (other than
liens or charges created by or imposed upon the holder of the Warrant). The
Company agrees that the shares so issued shall be and shall for all purposes be
deemed to have been issued to such holder as the record owner of such shares as
of the close of business on the date on which this Warrant shall have been
exercised or converted in accordance with the terms hereof. No fractional shares
or scrip representing fractional shares shall be issued upon the exercise of
this Warrant. With respect to any fraction of a share called for upon the
exercise of this Warrant, an amount equal to such fraction multiplied by the
Fair Market Value of one share of Stock shall be paid in cash or check to the
holder of this Warrant. "Fair Market Value" shall mean with
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respect to each share of Stock, the average of the closing bid and ask prices,
as quoted on the NASDAQ or similar applicable system, of the Stock on the
Exercise Date.
3. CHARGES, TAXES AND EXPENSES
Holder shall be responsible for payment of any charges related to
issuance of certificates for shares of Stock upon the exercise of this Warrant
for any issue or transfer tax and such certificates shall be issued in the name
of the holder of this Warrant.
4. NO RIGHTS AS SHAREHOLDERS
This Warrant does not entitle the holder hereof to any voting rights or
other rights as a shareholder of the Company prior to the exercise hereof.
5. TRANSFERABILITY
This Warrant and all rights hereunder are not transferable by the Holder
hereof, except to a wholly owned subsidiary or direct or indirect corporate
parent of Holder, without the prior written consent of the Company.
6. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT
On receipt by the Company of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and in
case of any such loss, theft or destruction of this Warrant, on delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company
or, in the case of any such mutilation, on surrender and cancellation of such
Warrant, the Company will execute and deliver to the holder, in lieu thereof, a
new warrant in substantially identical form, dated as of such cancellation and
reissuance.
7. SATURDAYS, SUNDAYS AND HOLIDAYS
If the last or appointed day for the taking of any action or the
expiration of any right required or granted herein shall be a Saturday or a
Sunday or shall be a legal holiday, then such action may be taken or such right
may be exercised on the next succeeding business day.
8. ADJUSTMENT TO NUMBER AND TYPE OF SECURITIES, EXERCISE PRICE
The type and number of securities of the Company issuable upon exercise
of this Warrant and the Exercise Price are subject to adjustment as set forth
below:
(a) Adjustment for Stock Splits, Stock Dividends, Recapitalizations,
Automatic Conversion, etc. The number and type of securities and/or other
property issuable upon exercise of this Warrant shall be appropriately and
proportionately adjusted to reflect any stock dividend, stock split, combination
of shares, reclassification, recapitalization, automatic conversion, redemption
or other similar event affecting the number or character of outstanding shares
of Stock, so that the number and type of securities and/or other property
issuable upon exercise of this Warrant shall be equal to that which would have
been issuable with respect to the number of shares of Stock subject hereto at
the time of such event, had such shares of Stock then been outstanding.
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(b) Adjustment for Reorganization, Consolidation, Merger, etc. In case
of any consolidation or merger of the Company with or into any other
corporation, entity or person, or any other corporate reorganization, in which
the Company shall not be the continuing or surviving entity of such
consolidation, merger or reorganization, or any transaction in which in excess
of 50% of the Company's voting power is transferred, or any sale of all or
substantially all of the assets of the Company (any such transaction being
hereinafter referred to as a "Reorganization"), then, in each case, the holder
of this Warrant, on exercise hereof at any time after the consummation or
effective date of such Reorganization, shall receive, in lieu of the Stock
issuable on such exercise prior to the date of such Reorganization, the stock
and other securities and property (including cash) to which such holder would
have been entitled upon the date of such Reorganization if such holder had
exercised this Warrant immediately prior thereto. The provisions of this Section
8(b) shall apply to successive Reorganizations.
(c) Certificate as to Adjustments. In case of any adjustment in the
Exercise Price or number and type of securities issuable on the exercise of this
Warrant, the Company will promptly give written notice thereof to the holder of
this Warrant in the form of a certificate, certified and confirmed by an officer
of the Company, setting forth such adjustment and showing in reasonable detail
the facts upon which adjustment is based.
9. NOTICES OF RECORD DATE, ETC.
In the event of:
(a) any taking by the Company of a record of the holders of Common Stock
for the purpose of determining the holders thereof who are entitled to receive
any dividend or other distribution, or any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other securities or
property, or to receive any other right,
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company, or any transfer of all or
substantially all the assets of the Company to, or consolidation or merger of,
the Company with or into any person,
(c) any voluntary or involuntary dissolution, liquidation or winding-up
of the Company, or
(d) any proposed issue or grant by the Company to all holders of Common
Stock of any right or warrant to subscribe for, purchase or otherwise acquire
any shares of stock of any class or any other securities,
then and in each such event the Company will mail to the Holder hereof a notice
specifying (i) the date on which any such record is to be taken for the purpose
of such dividend, distribution or right, and stating the amount and character of
such dividend, distribution or right, (ii) the date on which any such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up is to take place, and the time,
if any is to be fixed, as to which the holders of record of Common Stock shall
be entitled to exchange their shares for securities or other property
deliverable on such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up, (iii)
the amount and character of any stock or other securities, or rights or warrants
with respect thereto, proposed to be issued or granted, the date of such
proposed issue or grant and the persons or class of persons to whom such
proposed issue or grant is to be offered or made, and (iv) in reasonable detail,
the facts, including the
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proposed date, concerning any other such event. Such notice shall be delivered
to the holder hereof at least ten (10) days prior to the date therein specified.
10. NOTICES
All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally or by a recognized commercial
overnight delivery service, or mailed by registered or certified mail (return
receipt requested) or sent via facsimile (with acknowledgment of complete
transmission) to Holder or Company at the following addresses (or at such other
address for a party as shall be specified by like notice):
(i) if to Holder, to: Thomson Multimedia S.A.
46 Quai A. Le Gallo
92100 Boulogne
France
Attention: Chief Executive Officer
Facsimile No.: 331-4126-6400
with a copy to: Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105-2482
Attention: Robert Townsend, Esq.
Facsimile No.: (415) 268-7522
(ii) if to Company, to: C-Cube Semiconductor Inc.
1778 McCarthy Boulevard
Milpitas, CA 95035
Attention: Chief Executive Officer
Facsimile No.: (408) 490-8402
with a copy to: Wilson Sonsini Goodrich & Rosati
Professional Corporation
Spear Street Tower
One Market
San Francisco, CA 94105
Attention: Steve L. Camahort, Esq.
Facsimile No.: (415) 947-2099
11. COOPERATION
The Company will not, by amendment of its bylaws or certificate of
incorporation or through any reorganization, recapitalization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other action, avoid or seek to avoid the observance or performance of any of the
terms to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out
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of all the provisions of this Warrant and in the taking of all such action as
may be necessary or appropriate in order to protect the rights of the holder of
the Warrant against impairment.
12. WAIVER AND AMENDMENT
Any provision of this Warrant may be amended, waived or modified only
upon the written consent of the Company and the Holder.
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13. GOVERNING LAW
This Warrant shall be governed by and construed in accordance with the
laws of California applicable to contracts made and to be performed wholly
within California.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its duly authorized officer.
Dated: __________ ___, 2000 C-CUBE SEMICONDUCTOR INC.
a Delaware corporation
By: ___________________________________
Name:
Title:
<PAGE> 9
EXHIBIT A
NOTICE OF EXERCISE
To: C-Cube Semiconductor Inc.
(1) The undersigned hereby elects to purchase __________ shares of the
common stock of C-Cube Semiconductor Inc. issuable pursuant to the terms of the
attached Warrant, and tenders herewith payment of the Exercise Price in full for
such shares.
(2) Please issue a certificate or certificates representing the shares
issuable pursuant to the attached Warrant in the name of the undersigned.
(3) The undersigned represents that the aforesaid shares are being
acquired for the account of the undersigned for investment and not with a view
to, or for resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling such shares,
except in compliance with applicable federal and state securities laws.
Thomson Multimedia S.A.
a French societe anonyme
Date: _______________________ By: ___________________________________
Name:
Title:
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EXHIBIT B
ACKNOWLEDGMENT OF EXERCISE
The undersigned, C-Cube Semiconductor Inc., hereby acknowledges receipt
of the "Notice of Exercise" from Thomson Multimedia S.A., to purchase
___________ shares of the Common Stock of C-Cube Semiconductor Inc., pursuant to
the terms of the Warrant and the method of payment indicated on the Notice of
Exercise received from ________________________________ on __________ ___, 20__.
C-CUBE SEMICONDUCTOR INC.
a Delaware corporation
Date: _______________________ By: ___________________________________
Name:
Title: