Warrant to Purchase Shares - 3dfx Interactive Inc. and Goodin & Associates
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO RULE 144 OR AN
OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT
SUCH REGISTRATION IS NOT REQUIRED.
Warrant C-1 WARRANT TO PURCHASE SHARES
OF SERIES C PREFERRED STOCK
Company: 3Dfx Interactive, Inc., a California corporation (the
"Company"), and any corporation that shall succeed to the
obligations of the Company under this Warrant.
Number of Shares: 20,000
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Class of Stock: Series C Preferred
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Exercise Price: (See Section 5.B.4)
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Expiration Date: June , 2001
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Date of Grant: June , 1996
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THIS CERTIFIES THAT, for value received, Goodin & Associates,
a [Describe type of entity],("Holder") is entitled to purchase 20,000 shares of
the Company's Series C Preferred Stock (the "Shares") to be created and sold by
the Company in a financing resulting in gross proceeds to the Company of at
least $1,000,000, including the principal and interest of promissory notes which
may be converted into shares of such Series C Preferred Stock, (the "Financing")
at the Exercise Price (as initially determined by Section 5.B.4 and as may be
further adjusted pursuant to Section 5 hereof), subject to the provisions and
upon the terms and conditions set forth herein.
I. Definitions.
As used herein, the following terms, unless the context
otherwise requires, shall have the following meanings:
1. "Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations
thereunder, as shall be in effect at the time.
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2. "Common Stock" shall mean shares of the
presently authorized common stock of the Company and any stock into which such
common stock may hereafter be exchanged.
3. "Holder" shall mean any person who shall at the
time be the holder of this Warrant.
4. "Shares" shall mean the shares of the Series C
Preferred Stock or Common Stock that the Holder is entitled to purchase upon
exercise of this Warrant, as adjusted pursuant to Section 5 hereof.
5. "Warrant Price" shall mean the Exercise Price at
which this Warrant may be exercised, as intially determined by Section 5.B.4 and
as further adjusted pursuant to Section 5 hereof.
II. Term.
A. The purchase right represented by this Warrant is
exercisable, in whole or in part, at any time on or before the Expiration Date;
provided, however, this Warrant shall expire, if not previously exercised,
immediately upon the closing of the issuance of shares of Common Stock of the
Company in an underwritten public offering, pursuant to an effective
registration statement under the Securities Act of 1933, as amended, in which
the aggregate proceeds received by the Company equal at least $15,000,000 and
the public offering price is not less than $6.60 per share of Common Stock
(appropriately adjusted for stock splits, stock dividends and stock
combinations).
B. The Company shall notify Holders if an event or transaction
of the kind described in Section 2.A. above is proposed, at least thirty (30)
days prior to the closing of such event or transaction and if the Company fails
to deliver such written notice at such time, anything to the contrary in this
Warrant notwithstanding, the Warrant will not expire until thirty (30) days
after the Company delivers such notice to the Holders. Such notice shall also
contain such details of the proposed event or transaction as are reasonable in
the circumstances and notice that this Warrant is expected to expire upon
closing thereof. If such closing does not take place, the Company shall promptly
notify the holders that such proposed transaction has been terminated. Anything
to the contrary in this Warrant notwithstanding, the holders may rescind any
exercise of their Warrants within thirty (30) days of such notice of termination
of the proposed transaction if the exercise of their Warrants occurred after the
Company notified such holders that an event or transaction of the kind described
in Section 2. A above was proposed or if the exercise were otherwise
precipitated by such proposed event or transaction. In the event of such
rescission, the Warrants will continue to be exercisable on the same terms and
conditions.
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III. Method of Exercise; Payment; Issuance of New Warrant.
Subject to Section 2 hereof, the purchase right represented by
this Warrant may be exercised by the Holder, in whole or in part, by the
surrender of this Warrant (with the notice of exercise form attached hereto as
Appendix A duly executed) at the principal office of the Company and by the
payment to the Company, by check made payable to the Company drawn on a United
States bank and for United States funds of an amount equal to the then
applicable Warrant Price per share multiplied by the number of Shares then being
purchased. In the event of any exercise of the purchase right represented by
this Section 3, certificates for the Shares so purchased shall be delivered to
the Holder within thirty (30) days of receipt of such payment and, unless this
Warrant has been fully exercised or expired, a new Warrant representing the
portion of the Shares, if any, with respect to which this Warrant shall not then
have been exercised shall also be issued to the Holder within such thirty (30)
day period.
IV. Exercise Price.
The Warrant Price at which this Warrant may be exercised shall
be the Exercise Price, as determined by Section 5.B.4 and as adjusted from time
to time pursuant to Section 5 hereof.
V. Adjustment of Number and Kind of Shares and
Adjustment of Warrant Price.
A. Certain Definitions. As used in this Section 5 the
following terms shall have the following respective meanings:
1. Options: rights, options or warrants to
subscribe for, purchase or otherwise acquire either shares of Series C Preferred
Stock, Common Stock or Convertible Securities; and
2. Convertible Securities: any evidences of
indebtedness, shares of stock or other securities directly or indirectly
convertible into or exchangeable for Common Stock, including the Company's
Series C Preferred Stock.
B. Adjustments. The number and kind of securities purchasable
upon the exercise of this Warrant and the Warrant Price shall be subject to
adjustment from time to time upon the occurrence of certain events, as follows:
1. Reclassification, Reorganization, Consolidation
or Merger. In the case of any reclassification of the Series C Preferred Stock
or any
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reorganization, consolidation or merger of the Company with or into another
corporation (other than a merger or reorganization with respect to which the
Company is the continuing corporation and which does not result in any
reclassification of the Series C Preferred Stock), the Company, or such
successor corporation, as the case may be, shall execute a new warrant,
providing that the Holder shall have the right to exercise such new warrant and
upon such exercise to receive, in lieu of each share of the Series C Preferred
Stock, as applicable, theretofore issuable upon exercise of this Warrant, the
number and kind of securities receivable upon such reclassification,
reorganization, consolidation or merger by a holder of shares of the Series C
Preferred Stock of the Company for each share of the Series C Preferred Stock.
The aggregate warrant price of the new warrant shall be the aggregate Warrant
Price in effect immediately prior to the reclassification, reorganization,
consolidation or merger. Such new warrant shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Section 5 including, without limitation, adjustments to the Warrant
Price and to the number of shares issuable upon exercise of this Warrant. The
provisions of this subsection B.1 shall similarly apply to successive
reclassification, reorganizations, consolidations or mergers.
2. Split, Subdivision or Combination or Shares. If
the Company at any time while this Warrant remains outstanding and unexpired
shall split, subdivide or combine the Series C Preferred Stock, for which this
Warrant is then exercisable, the Warrant Price shall be proportionately
decreased in the case of a split or subdivision or proportionately increased in
the case of a combination. Any adjustment under this subsection B.2 shall become
effective when the split, subdivision or combination becomes effective.
3. Stock Dividends. If the Company at any time
while this Warrant remains outstanding and unexpired shall pay a dividend with
respect to the Series C Preferred Stock for which this Warrant is then
exercisable, payable in shares of that Series C Preferred Stock, Options or
Convertible Securities, the Warrant Price shall be adjusted, from and after the
date of determination of the stockholders entitled to receive such dividend or
distributions, to that price determined by multiplying the Warrant Price in
effect immediately prior to such date of determination by a fraction (i) the
numerator of which shall be the total number of shares of Series C Preferred
Stock outstanding immediately prior to such dividend or distribution, and (ii)
the denominator of which shall be the total number of shares of the Series C
Preferred Stock outstanding immediately after such dividend or distribution
(including shares of Series C Preferred Stock issuable upon exercise, conversion
or exchange of any Options or Convertible Securities issued as such dividend or
distribution). If the Options or Convertible Securities issued as such dividend
or distribution by their terms provide, with the passage of time or otherwise,
for any decrease in the consideration payable to the Company, or any increase in
the number of shares issuable upon exercise, conversion or exchange thereof (by
change of rate or otherwise), the Warrant
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Price shall, upon any such decrease or increase becoming effective, be reduced
to reflect such decrease or increase as if such decrease or increase became
effective immediately prior to the issuance of the Options or Convertible
Securities as the dividend or distribution. Any adjustment under this subsection
B.3 shall become effective on the record date.
4. Establishment of Exercise Price. The Warrant
Price shall be fixed at a price equal to the price per share of the Company's
Series C Preferred Stock sold in the Financing.
C. Adjustment of Number of Shares. Upon each adjustment
in the Warrant Price pursuant to this Section 5, but excluding adjustments
pursuant to subsection B. 4 of this Section 5, the number of Shares issuable
upon exercise of this Warrant shall be adjusted to the product obtained by
multiplying the number of Shares issuable immediately prior to such adjustment
in the Warrant Price by a fraction (i) the numerator of which shall be the
Warrant Price immediately prior to such adjustment, and (ii) the denominator of
which shall be the Warrant Price immediately after such adjustment.
VI. Notice of Adjustments.
Whenever the Warrant Price shall be adjusted pursuant to
Section 5 hereof, the Company shall issue a certificate signed by its chief
financial officer or chief executive officer setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated and the Warrant Price after
giving effect to such adjustment, and shall cause a copy of such certificate to
be mailed (by first class mail, postage prepaid) to the Holder.
VII. Compliance With Act; Transferability of Warrant;
Disposition of Shares.
A. Legends. This Warrant and the Shares issued upon
exercise thereof shall be imprinted with a legend in substantially the following
form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
THEREOF UNDER SUCH ACT OR PURSUANT TO RULE 144 OR AN OPINION
OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY AND ITS
COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED."
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B. Transferability and Non-negotiability of Warrant and
Shares. This Warrant and the Shares issued upon exercise thereof may not be
transferred or assigned in whole or in part without compliance with applicable
federal and state securities laws by the transferor and the transferee
(including, without limitation, the delivery of investment representation
letters and legal opinions reasonably satisfactory to the Company, if reasonably
requested by the Company). Subject to the provisions of this Section 7.B, title
to this Warrant may be transferred in the same manner as a negotiable instrument
transferable by endorsement and delivery.
VIII. Miscellaneous.
No fractional shares of the Shares shall be issued in
connection with any exercise hereunder, but in lieu of such fractional shares
the Company shall make a cash payment therefor upon the basis of the Warrant
Price then in effect. The terms and provisions of this Warrant shall inure to
the benefit of, and be binding upon, the Company and the Holders hereof and
their respective successors and assigns. This Warrant shall be governed by and
construed under the laws of the State of California as applied to contracts
entered into between residents of the State of California to be wholly performed
in the State of California. The titles of the sections and subsections of this
Warrant are for convenience only and are not to be considered in construing this
Warrant. All pronouns used in the Warrant shall be deemed to include masculine,
feminine and neuter forms.
3DFX INTERACTIVE, INC.
By: /s/ Gary Martin
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Title: CFO
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APPENDIX A
NOTICE OF EXERCISE
TO:______________
1. The undersigned hereby elects to purchase__________ shares
of the____________ of 3Dfx Interactive, Inc., pursuant to terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares in
full, together with all applicable transfer taxes, if any.
2. Please issue a certificate or certificates representing
said shares of the__________________ in the name of the undersigned or in such
other name as is specified below:
3. The undersigned represents it is acquiring the shares
of__________ 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.
________________________________
(Name)
________________________________
(Address)
________________________________
________________________________
________________________________
(Taxpayer Identification Number)
__________________________
[print name of Holder]
By:_______________________
Title:____________________
Date:_____________________
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AMENDMENT NO. 1 TO WARRANT
This Amendment (the "Amendment No. 1") is entered into as of May __,
1997 among 3Dfx Interactive, Inc., a California corporation (the "Company") and
Goodin & Associates (the "Investor").
RECITALS
WHEREAS, on June 1, 1996 the Company issued to Investor a warrant (the
"Warrant") to purchase up to 20,000 shares of Series C Preferred Stock of the
Company, which Warrant becomes exercisable immediately upon the closing of an
initial public offering of the Company's Common Stock to the public.
WHEREAS, the Company and the Investor desire to amend the Warrant to
provide for a "net exercise" provision to facilitate the exercise of the
Warrant.
WHEREAS, concurrently with the execution of this Amendment No. 1, the
Investor will execute a form of Lock-Up Agreement in the form executed by each
of the officers and directors of the Company.
NOW THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable
considerations, the parties hereby agree as follows:
1. Amendment to Section III
Section III of the Warrant is hereby amended to read in its entirety as
follows:
"Subject to Section 2 hereof, the purchase right
represented by this Warrant may be exercised by the Holder, in whole or
in part, by the surrender of this Warrant (with the notice of exercise
form attached hereto as Appendix A duly executed) at the principal
office of the Company and by the payment to the Company of the Exercise
Price. The Exercise Price may be paid in whole or in part by the Holder
to the Company:
(A) by check or wire transfer of immediately
available funds, of an amount equal to the Exercise Price per share
multiplied by the number of Shares then being purchased; or
(B) the Holder may elect to receive shares equal to
the value (as determined below) of this Warrant (or the portion thereof
being canceled) by surrender of this Warrant at the principal office of
the Company together with the properly endorsed Notice of Exercise and
notice of such election in which event the Company shall issue to the
Holder a number of Shares computed using the following formula:
X = Y (A - B)
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Where X = the number of Shares to be issued to the
Holder
Y = the number of Shares purchasable under the
Warrant or, if only a portion of the Warrant
is being exercised, the portion of the
Warrant being canceled (at the date of such
calculation)
A = the fair market value of one Share (at the
date of such calculation)
B = Exercise Price (as adjusted to the date of
such calculation)
For purposes of the above calculation, fair market value of one Share
shall be determined by the Company's Board of Directors in good faith;
provided, however, that where there exists a public market for the
Company's Common Stock at the time of such exercise, the fair market
value per Share shall be the product of (i) the average of the closing
bid and asked prices of the Common Stock quoted in the Over-The-Counter
Market Summary or the last reported sale price of the Common Stock or
the closing price quoted on the NASDAQ National Market System or on any
exchange on which the Common Stock is listed, whichever is applicable,
as published in the Western Edition of The Wall Street Journal for the
five (5) trading days prior to the date of determination of fair market
value and (ii) the number of shares of Common Stock into which each
Share is convertible at the time of such exercise. Notwithstanding the
foregoing, in the event the Warrant is exercised in connection with the
Company's IPO, the fair market value per share shall be the product of
(i) the per share offering price to the public of the Company's IPO,
and (ii) the number of shares of Common Stock into which each Share is
convertible at the time of such exercise.
(C) Certificates for Shares purchased hereunder shall
be delivered to the Holder hereof within a reasonable time after the
date on which this Warrant shall have been exercised as aforesaid.
(D) The Company covenants that all Shares which may
be issued upon the exercise of rights represented by this Warrant will,
upon exercise of the rights represented by this Warrant, be duly
authorized, validly issued, fully paid and nonassessable and free from
all taxes, liens and charges in respect of the issue thereof (other
than taxes in respect of any transfer occurring contemporaneously with
such issue).
2. Full Force and Effect. Subject to the foregoing amendments, the
Warrant remains in full force and effect and is herewith confirmed.
3. Counterparts. This Amendment No. 1 may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 as
of the date first written above.
3Dfx INTERACTIVE, INC. GOODIN & ASSOCIATES
By:__________________________ By:____________________________
Title:_______________________ Title:_________________________
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