Warrant to Purchase Shares - 3dfx Interactive Inc. and Symtek
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-2 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: 40,000
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Class of Stock: Series C Preferred
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Exercise Price: $3.75
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Expiration Date: September 11, 2001
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Date of Grant: September 11, 1996
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THIS CERTIFIES THAT, for value received, Simon Szeto, an
individual also doing business as SYMTEK, ("Holder") is entitled to purchase
40,000 shares of the Company's Series C Preferred Stock (the "Shares") at $3.75
per share, (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.
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.
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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 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.
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
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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 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 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
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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 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.
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C. Adjustment of Number of Shares. Upon each adjustment
in the Warrant Price pursuant to 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."
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.
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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
SYMTEK (the "Investor").
RECITALS
WHEREAS, on September 11, 1996 the Company issued to Investor a warrant
(the "Warrant") to purchase up to 40,000 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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A
Where X = the number of Shares to be issued to the Holder
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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. SYMTEK
By: /s/ Gary Martin By: Simon Szeto
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Title: CFO Title:
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