<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
3DFX INTERACTIVE, INC.
--------------------------------------------------------
(Exact name of Registrant as specified in its charter)
CALIFORNIA 77-0390421
------------------------------- -----------------------
(State of incorporation or organization) (IRS Employer
Identification No.)
4435 Fortran Drive
San Jose, California 95134
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(Address of principal executive offices) (Zip Code)
1999 SUPPLEMENTARY STOCK OPTION PLAN
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(Full title of the plans)
DAVID ZACARIAS
Chief Financial Officer and Secretary
3DFX INTERACTIVE, INC.
4435 Fortran Drive
San Jose, California 95134
(408) 935-4400
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(Name, address, and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Each Class of Maximum Maximum Amount of
Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price Fee
- --------------------------------------------------------------------------------
Common Stock, no par
value(1) 1,000,000 $10.75(2) $10,750,000 $2,988.50
- --------------------------------------------------------------------------------
(1) Includes Preferred Share Purchase Rights, which, prior to the occurrence
certain events, will not be exercisable or evidenced separately from the
Common Stock.
(2) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee based upon the average of the high and low
prices of the Common Stock as reported on the Nasdaq National Market on
September 2, 1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference the following
documents and information heretofore filed with the Securities and
Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998, as amended by Amendment No. 1 to Annual
Report on Form 10-K.
(b) (1) The Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended April 30, 1999, filed pursuant to Section
13(a) of the Exchange Act, as amended by Amendment No. 1 to Form 10-Q.
(2) The Registrant's Current Report on Form 8-K filed
with the Commission on March 30, 1999.
(3) The Registrant's Current Report on Form 8-K filed
with the Commission on May 21, 1999.
(4) The Registrant's Amended Current Report on Form 8-K/A
filed with the Commission on July 27, 1999.
(c) The description of the Registrant's Common Stock which is
contained in items 1 and 2 of its Registration Statement on Form 8-A
filed pursuant to Section 12(g) of the Exchange Act on June 4, 1997,
and the description of the Registrant's Preferred Share Purchase Rights
which is contained in items 1 and 2 of its Registration Statement on
Form 8-A filed pursuant to Section 12(g) of the Exchange Act on
November 9, 1998, and any further amendment or report filed hereafter
for the purpose of updating such descriptions.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference
in this registration statement and to be part hereof from the date of
filing such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
As permitted by Section 204(a) of the California General
Corporation Law, the Registrant's Articles of Incorporation eliminate a
director's personal liability for monetary damages to the Registrant
and its shareholders arising from a breach or alleged breach of the
director's fiduciary duty, except for liability arising under Sections
310 and 316 of the California General Corporation Law or liability for
(i) acts or omissions that involve intentional misconduct or knowing
and culpable violation of law, (ii) acts or omissions that a director
believes to be contrary to the best interests of the Registrant or its
shareholders or that involve the absence of good faith on the part of
the director, (iii) any transaction from which a director derived an
improper personal benefit, (iv) acts or omissions that show a reckless
disregard for the director's duty to the Registrant or its shareholders
in circumstances in which the director was aware, or should have been
aware, in the ordinary course of performing a director's duties, of a
risk of serious injury to the Registrant or its shareholders and (v)
acts or omissions that constitute an unexcused pattern of inattention
that amounts to an abdication of the director's duty to the Registrant
or its shareholders. This provision does not eliminate the directors'
duty of care, and in appropriate circumstances equitable remedies such
as an injunction or other forms of non-monetary relief would remain
available under California law.
Sections 204(a) and 317 of the California General Corporation Law
authorize a corporation to indemnify its directors, officers, employees
and other agents in terms sufficiently broad to permit indemnification
(including reimbursement for expenses) under certain circumstances for
liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act"). The Registrant's Articles of Incorporation and
Bylaws contain provisions covering indemnification of corporate
directors, officers and other agents against certain liabilities and
expenses incurred as a result of proceedings involving such persons in
their capacities as directors, officers, employees or agents, including
proceedings under the Securities Act or the Securities Exchange Act of
1934, as amended. The Registrant has entered into Indemnification
Agreements with its directors and executive officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Number Document
4.1 1999 Supplementary Stock Option Planand for of Stock Option Agreement
thereunder.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, a
Professional Corporation.
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-4).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement to include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d)
of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of Registrant pursuant to the California General Corporations
Code, the Restated Articles of Incorporation or the Bylaws of
Registrant, Indemnification Agreements entered into between Registrant
and its officers and directors, or otherwise, Registrant has been
advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the
payment by Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered hereunder, Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, 3Dfx Interactive, Inc., certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on
Form S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the
City of San Jose, State of California, on this 7th day of September,
1999.
3DFX INTERACTIVE, INC.
(Registrant)
By: /S/ L. GREGORY BALLARD
L. Gregory Ballard
President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose
signature appears below constitutes and appoints, jointly and
severally, L. Gregory Ballard and David Zacarias his attorneys-in-fact,
each with the power of substitution, for him in any and all capacities,
to sign any amendments to this Registration Statement on Form S-8
(including post-effective amendments), and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all
that each of said attorneys-in-fact, or his substitute or substitutes,
may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------------------------- ---------------------------------- -------------
/s/ L. GREGORY BALLARD President, Chief Executive September 7, 1999
- --------------------------- Officer and Director
(L. Gregory Ballard) (Principal Executive Officer)
/s/ DAVID ZACARIAS Vice President of Finance and September 7, 1999
- --------------------------- Chief Financial Officer
(David Zacarias) (Principal Financial and
Accounting Officer)
/s/ GORDON A. CAMPBELL Chairman of the Board September 7, 1999
- ---------------------------
(Gordon A. Campbell)
/s/ JAMES WHIMS Director September 7, 1999
- ---------------------------
(James Whims)
/s/ PHILIP M. YOUNG Director September 7, 1999
- ---------------------------
(Philip M. Young)
/s/ ANTHONY SUN Director September 7, 1999
- ---------------------------
(Anthony Sun)
Vice President, Finance and
/s/ ALEX LEUPP Director September 7, 1999
- ---------------------------
(Alex Leupp)
/s/ SCOTT D. SELLERS Director September 7, 1999
- ---------------------------
(Scott D. Sellers)
/s/ JAMES WHIMS Director September 7, 1999
- ---------------------------
(James Whims)
/s/ WILLIAM OGLE Director September 7, 1999
- ---------------------------
(William Ogle)
/s/ JAMES L. HOPKINS Director September 7, 1999
- ---------------------------
(James L. Hopkins)
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________________
EXHIBITS
___________________________________
INDEX TO EXHIBITS
Exhibit
Number Documents
4.1 1999 Supplementary Stock Option Plan and form of Stock Option Agreement
thereunder
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, a Professional Corporation
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (see page II-4)
Exhibit 4.1
3DFX INTERACTIVE, INC.
1999 SUPPLEMENTARY STOCK OPTION PLAN (Adopted July 22, 1999)
1. Purposes of the Plan. The purposes of this Nonstatutory Stock
Option Plan are:
o to attract 3D graphics architects and engineers and to
retain the best engineering personnel,
o to provide additional incentive to Employees,
Directors and Consultants, and
o to promote the success of the Company's business.
Options granted under the Plan shall be Nonstatutory Stock
Options.
2. Definitions. As used herein, the following definitions shall
apply:
(a) "Administrator" means the Board or any of its
Committees as shall be administering the Plan, in accordance with
Section 4 of the Plan.
(b) "Applicable Laws" means the requirements relating to
the administration of stock option plans under U.S. state corporate
laws, U.S. federal and state securities laws, the Code, any stock
exchange or quotation system on which the Common Stock is listed or
quoted and the applicable laws of any foreign country or jurisdiction
where Options are, or will be, granted under the Plan.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" means a committee of Directors appointed
by the Board in accordance with Section 4 of the Plan.
(f) "Common Stock" means the Common Stock of the Company.
(g) "Company" means 3Dfx Interactive, Inc., a California
corporation.
(h) "Consultant" means any person, including an advisor,
engaged by the Company or a Parent or Subsidiary to render services to
such entity.
(i) "Director" means a member of the Board.
(j) "Disability" means total and permanent disability as
defined in Section 22(e)(3) of the Code.
(k) "Employee" means any person, including Officers,
employed by the Company or any Parent or Subsidiary of the Company. A
Service Provider shall not cease to be an Employee in the case of
(i) any leave of absence approved by the Company or (ii) transfers
between locations of the Company or between the Company, its Parent,
any Subsidiary, or any successor. Neither service as a Director nor
payment of a director's fee by the Company shall be sufficient to
constitute "employment" by the Company.
(l) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(m) "Fair Market Value" means, as of any date, the value
of Common Stock determined as follows:
(i) If the Common Stock is listed on any estab-
lished stock exchange or a national market system, including without
limitation the Nasdaq National Market or The Nasdaq SmallCap Market of
The Nasdaq Stock Market, its Fair Market Value shall be the closing
sales price for such stock (or the closing bid, if no sales were
reported) as quoted on such exchange or system for the last market
trading day prior to the time of determination, as reported in The Wall
Street Journal or such other source as the Administrator deems
reliable;
(ii) If the Common Stock is regularly quoted by a
recognized securities dealer but selling prices are not reported, the
Fair Market Value of a Share of Common Stock shall be the mean between
the high bid and low asked prices for the Common Stock on the last
market trading day prior to the day of determination, as reported in
The Wall Street Journal or such other source as the Administrator deems
reliable;
(iii) In the absence of an established market for the
Common Stock, the Fair Market Value shall be determined in good faith
by the Administrator.
(n) "Notice of Grant" means a written or electronic
notice evidencing certain terms and conditions of an individual Option
grant. The Notice of Grant is part of the Option Agreement.
(o) "Officer" means a person who is either (i) an officer
of the Company within the meaning of Section 16 of the Exchange Act and
the rules and regulations promulgated thereunder or (ii) a vice
president of the Company.
(p) "Option" means a nonstatutory stock option that is
not intended to qualify as an incentive stock option within the meaning
of Section 422 of the Code and the regulations promulgated thereunder.
(q) "Option Agreement" means an agreement between the
Company and an Optionee evidencing the terms and conditions of an
individual Option grant. The Option Agreement is subject to the terms
and conditions of the Plan.
(r) "Option Exchange Program" means a program whereby
outstanding options are surrendered in exchange for options with a
lower exercise price.
(s) "Optioned Stock" means the Common Stock subject to an
Option.
(t) "Optionee" means the holder of an outstanding Option
granted under the Plan.
(u) "Parent" means a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(v) "Plan" means this 1999 Supplementary Stock Option
Plan.
(w) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or
any successor to Rule 16b-3, as in effect when discretion is being
exercised with respect to the Plan.
(x) "Section 16(b) " means Section 16(b) of the
Securities Exchange Act of 1934, as amended.
(y) "Service Provider" means an Employee, including an
Officer or Consultant.
(z) "Share" means a share of the Common Stock, as
adjusted in accordance with Section 12 of the Plan.
(aa) "Subsidiary" means a "subsidiary corporation,"
whether now or hereafter existing, as defined in Section 424(f) of the
Code.
3. Stock Subject to the Plan. Subject to the provisions of
Section 12 of the Plan, the maximum aggregate number of Shares which
may be optioned and sold under the Plan is 1,000,000 Shares. The
Shares may be authorized, but unissued, or reacquired Common Stock.
If an Option expires or becomes unexercisable without having been
exercised in full, or is surrendered pursuant to an Option Exchange
Program, the unpurchased Shares which were subject thereto shall become
available for future grant or sale under the Plan (unless the Plan has
terminated).
4. Administration of the Plan.
(a) Procedure.
(i) Multiple Administrative Bodies. The Plan may
be administered by different Committees with respect to different
groups of Service Providers.
(ii) Rule 16b-3. To the extent desirable to qualify
transactions hereunder as exempt under Rule 16b-3, the Plan shall be
administered by the Board or a Committee of two or more "non-employee
directors" within the meaning of Rule 16b-3.
(iii) Other Administration. Other than as provided
above, the Plan shall be administered by (A) the Board or (B) a
Committee, which committee shall be constituted to satisfy Applicable
Laws.
(b) Powers of the Administrator. Subject to the provi-
sions of the Plan, and in the case of a Committee, subject to the
specific duties delegated by the Board to such Committee, the
Administrator shall have the authority, in its discretion:
(i) to determine the Fair Market Value of the
Common Stock;
(ii) to select the Service Providers to whom Options
may be granted hereunder;
(iii) to determine whether and to what extent Options
are granted hereunder;
(iv) to determine the number of shares of Common
Stock to be covered by each Option granted hereunder;
(v) to approve forms of agreement for use under the
Plan;
(vi) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any award granted
hereunder. Such terms and conditions include, but are not limited to,
the exercise price, the time or times when Options may be exercised
(which may be based on performance criteria), any vesting acceleration
or waiver of forfeiture restrictions, and any restriction or limitation
regarding any Option or the shares of Common Stock relating thereto,
based in each case on such factors as the Administrator, in its sole
discretion, shall determine;
(vii) to reduce the exercise price of any Option to
the then current Fair Market Value if the Fair Market Value of the
Common Stock covered by such Option shall have declined since the date
the Option was granted;
(viii) to institute an Option Exchange Program;
(ix) to construe and interpret the terms of the Plan
and awards granted pursuant to the Plan;
(x) to prescribe, amend and rescind rules and
regulations relating to the Plan, including rules and regulations
relating to sub-plans established for the purpose of qualifying for
preferred tax treatment under foreign tax laws;
(xi) to modify or amend each Option (subject to
Section 14(b) of the Plan), including the discretionary authority to
extend the post-termination exercisability period of Options longer
than is otherwise provided for in the Plan;
(xii) to authorize any person to execute on behalf of
the Company any instrument required to effect the grant of an Option or
previously granted by the Administrator;
(xiii) to allow Optionees to satisfy withholding tax
obligations by electing to have the Company withhold from the Shares to
be issued upon exercise of an Option that number of Shares having a
Fair Market Value equal to the amount required to be withheld. The
Fair Market Value of the Shares to be withheld shall be determined on
the date that the amount of tax to be withheld is to be determined.
All elections by an Optionee to have Shares withheld for this purpose
shall be made in such form and under such conditions as the
Administrator may deem necessary or advisable; and
(xiv) to make all other determinations deemed
necessary or advisable for administering the Plan.
(c) Effect of Administrator's Decision. The
Administrator's decisions, determinations and interpretations shall be
final and binding on all Optionees and any other holders of Options.
5. Eligibility. Options may be granted to Service Providers
other than Officers (except as set forth herein). Officers shall not
be eligible to receive Options under this Plan; provided, however, that
Options may be granted to an Officer not previously employed by the
Company, as an inducement essential to the individual's entering into
an employment contract with the Company.
6. Limitation. Neither the Plan nor any Option shall confer upon
an Optionee any right with respect to continuing the Optionee's
relationship as a Service Provider with the Company, nor shall they
interfere in any way with the Optionee's right or the Company's right
to terminate such relationship at any time, with or without cause.
7. Term of Plan. The Plan shall become effective upon its
adoption by the Board. It shall continue in effect for ten (10) years,
unless sooner terminated under Section 14 of the Plan.
8. Term of Option. The term of each Option shall be stated in
the Option Agreement.
9. Option Exercise Price and Consideration.
(a) Exercise Price. The per share exercise price for the
Shares to be issued pursuant to exercise of an Option shall be
determined by the Administrator.
(b) Waiting Period and Exercise Dates. At the time an
Option is granted, the Administrator shall fix the period within which
the Option may be exercised and shall determine any conditions which
must be satisfied before the Option may be exercised.
(c) Form of Consideration. The Administrator shall
determine the acceptable form of consideration for exercising an
Option, including the method of payment. Such consideration may
consist entirely of:
(i) cash;
(ii) check;
(iii) promissory note;
(iv) other Shares which (A) in the case of Shares
acquired upon exercise of an option, have been owned by the Optionee
for more than six months on the date of surrender, and (B) have a Fair
Market Value on the date of surrender equal to the aggregate exercise
price of the Shares as to which said Option shall be exercised;
(v) consideration received by the Company under a
cashless exercise program implemented by the Company in connection with
the Plan;
(vi) a reduction in the amount of any Company
liability to the Optionee, including any liability attributable to the
Optionee's participation in any Company-sponsored deferred compensation
program or arrangement;
(vii) such other consideration and method of payment
for the issuance of Shares to the extent permitted by Applicable Laws;
or
(viii) any combination of the foregoing methods of
payment.
10. Exercise of Option.
(a) Procedure for Exercise; Rights as a Stockholder. Any
Option granted hereunder shall be exercisable according to the terms of
the Plan and at such times and under such conditions as determined by
the Administrator and set forth in the Option Agreement. Unless the
Administrator provides otherwise, vesting of Options granted hereunder
shall be tolled during any unpaid leave of absence. An Option may not
be exercised for a fraction of a Share.
An Option shall be deemed exercised when the Company receives:
(i) written or electronic notice of exercise (in accordance with the
Option Agreement) from the person entitled to exercise the Option, and
(ii) full payment for the Shares with respect to which the Option is
exercised. Full payment may consist of any consideration and method of
payment authorized by the Administrator and permitted by the Option
Agreement and the Plan. Shares issued upon exercise of an Option shall
be issued in the name of the Optionee or, if requested by the Optionee,
in the name of the Optionee and his or her spouse. Until the Shares
are issued (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company), no
right to vote or receive dividends or any other rights as a stockholder
shall exist with respect to the Optioned Stock, notwithstanding the
exercise of the Option. The Company shall issue (or cause to be
issued) such Shares promptly after the Option is exercised. No
adjustment will be made for a dividend or other right for which the
record date is prior to the date the Shares are issued, except as
provided in Section 12 of the Plan.
Exercising an Option in any manner shall decrease the number of
Shares thereafter available, both for purposes of the Plan and for sale
under the Option, by the number of Shares as to which the Option is
exercised.
(b) Termination of Relationship as a Service Provider.
If an Optionee ceases to be a Service Provider, other than upon the
Optionee's death or Disability, the Optionee may exercise his or her
Option, but only within such period of time as is specified in the
Option Agreement, and only to the extent that the Option is vested on
the date of termination (but in no event later than the expiration of
the term of such Option as set forth in the Option Agreement). In the
absence of a specified time in the Option Agreement, the Option shall
remain exercisable for three (3) months following the Optionee's
termination. If, on the date of termination, the Optionee is not
vested as to his or her entire Option, the Shares covered by the
unvested portion of the Option shall revert to the Plan. If, after
termination, the Optionee does not exercise his or her Option within
the time specified by the Administrator, the Option shall terminate,
and the Shares covered by such Option shall revert to the Plan.
(c) Disability of Optionee. If an Optionee ceases to be
a Service Provider as a result of the Optionee's Disability, the
Optionee may exercise his or her Option within such period of time as
is specified in the Option Agreement, to the extent the Option is
vested on the date of termination (but in no event later than the
expiration of the term of such Option as set forth in the Option
Agreement). In the absence of a specified time in the Option
Agreement, the Option shall remain exercisable for twelve (12) months
following the Optionee's termination. If, on the date of termination,
the Optionee is not vested as to his or her entire Option, the Shares
covered by the unvested portion of the Option shall revert to the Plan.
If, after termination, the Optionee does not exercise his or her Option
within the time specified herein, the Option shall terminate, and the
Shares covered by such Option shall revert to the Plan.
(d) Death of Optionee. If an Optionee dies while a
Service Provider, the Option may be exercised within such period of
time as is specified in the Option Agreement (but in no event later
than the expiration of the term of such Option as set forth in the
Notice of Grant), by the Optionee's estate or by a person who acquires
the right to exercise the Option by bequest or inheritance, but only to
the extent that the Option is vested on the date of death. In the
absence of a specified time in the Option Agreement, the Option shall
remain exercisable for twelve (12) months following the Optionee's
termination. If, at the time of death, the Optionee is not vested as
to his or her entire Option, the Shares covered by the unvested portion
of the Option shall immediately revert to the Plan. The Option may be
exercised by the executor or administrator of the Optionee's estate or,
if none, by the person(s) entitled to exercise the Option under the
Optionee's will or the laws of descent or distribution. If the Option
is not so exercised within the time specified herein, the Option shall
terminate, and the Shares covered by such Option shall revert to the
Plan.
(e) Buyout Provisions. The Administrator may at any time
offer to buy out for a payment in cash or Shares, an Option previously
granted based on such terms and conditions as the Administrator shall
establish and communicate to the Optionee at the time that such offer
is made.
11. Non-Transferability of Options. Unless determined
otherwise by the Administrator, an Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other
than by will or by the laws of descent or distribution and may be
exercised, during the lifetime of the Optionee, only by the Optionee.
If the Administrator makes an Option transferable, such Option shall
contain such additional terms and conditions as the Administrator deems
appropriate.
12. Adjustments Upon Changes in Capitalization, Dissolution,
Merger or Asset Sale.
(a) Changes in Capitalization. Subject to any required
action by the stockholders of the Company, the number of shares of
Common Stock covered by each outstanding Option, and the number of
shares of Common Stock which have been authorized for issuance under
the Plan but as to which no Options have yet been granted or which have
been returned to the Plan upon cancellation or expiration of an Option,
as well as the price per share of Common Stock covered by each such
outstanding Option, shall be proportionately adjusted for any increase
or decrease in the number of issued shares of Common Stock resulting
from a stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease
in the number of issued shares of Common Stock effected without receipt
of consideration by the Company; provided, however, that conversion of
any convertible securities of the Company shall not be deemed to have
been "effected without receipt of consideration." Such adjustment
shall be made by the Board, whose determination in that respect shall
be final, binding and conclusive. Except as expressly provided herein,
no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect,
and no adjustment by reason thereof shall be made with respect to, the
number or price of shares of Common Stock subject to an Option.
(b) Dissolution or Liquidation. In the event of the
proposed dissolution or liquidation of the Company, the Administrator
shall notify each Optionee as soon as practicable prior to the
effective date of such proposed transaction. The Administrator in its
discretion may provide for an Optionee to have the right to exercise
his or her Option until ten (10) days prior to such transaction as to
all of the Optioned Stock covered thereby, including Shares as to which
the Option would not otherwise be exercisable. In addition, the
Administrator may provide that any Company repurchase option applicable
to any Shares purchased upon exercise of an Option shall lapse as to
all such Shares, provided the proposed dissolution or liquidation takes
place at the time and in the manner contemplated. To the extent it has
not been previously exercised, an Option will terminate immediately
prior to the consummation of such proposed action.
(c) Merger or Asset Sale. In the event of a merger of
the Company with or into another corporation, or the sale of
substantially all of the assets of the Company, each outstanding Option
shall be assumed or an equivalent option or right substituted by the
successor corporation or a Parent or Subsidiary of the successor
corporation. In the event that the successor corporation refuses to
assume or substitute for the Option, the Optionee shall fully vest in
and have the right to exercise the Option as to all of the Optioned
Stock, including Shares as to which it would not otherwise be vested or
exercisable. If an Option becomes fully vested and exercisable in lieu
of assumption or substitution in the event of a merger or sale of
assets, the Administrator shall notify the Optionee in writing or
electronically that the Option shall be fully vested and exercisable
for a period of fifteen (15) days from the date of such notice, and the
Option shall terminate upon the expiration of such period. For the
purposes of this paragraph, the Option shall be considered assumed if,
following the merger or sale of assets, the option or right confers the
right to purchase or receive, for each Share of Optioned Stock,
immediately prior to the merger or sale of assets, the consideration
(whether stock, cash, or other securities or property) received in the
merger or sale of assets by holders of Common Stock for each Share held
on the effective date of the transaction (and if holders were offered a
choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding Shares); provided, however,
that if such consideration received in the merger or sale of assets is
not solely common stock of the successor corporation or its Parent, the
Administrator may, with the consent of the successor corporation,
provide for the consideration to be received upon the exercise of the
Option, for each Share of Optioned Stock to be solely common stock of
the successor corporation or its Parent equal in fair market value to
the per share consideration received by holders of Common Stock in the
merger or sale of assets.
13. Date of Grant. The date of grant of an Option shall be,
for all purposes, the date on which the Administrator makes the
determination granting such Option, or such other later date as is
determined by the Administrator. Notice of the determination shall be
provided to each Optionee within a reasonable time after the date of
such grant.
14. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time
amend, alter, suspend or terminate the Plan.
(b) Effect of Amendment or Termination. No amendment,
alteration, suspension or termination of the Plan shall impair the
rights of any Optionee, unless mutually agreed otherwise between the
Optionee and the Administrator, which agreement must be in writing and
signed by the Optionee and the Company. Termination of the Plan shall
not affect the Administrator's ability to exercise the powers granted
to it hereunder with respect to options granted under the Plan prior to
the date of such termination.
15. Conditions Upon Issuance of Shares.
(a) Legal Compliance. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such
Option and the issuance and delivery of such Shares shall comply with
Applicable Laws and shall be further subject to the approval of counsel
for the Company with respect to such compliance.
(b) Investment Representations. As a condition to the
exercise of an Option the Company may require the person exercising
such Option to represent and warrant at the time of any such exercise
that the Shares are being purchased only for investment and without any
present intention to sell or distribute such Shares if, in the opinion
of counsel for the Company, such a representation is required.
16. Inability to Obtain Authority. The inability of the
Company to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company's counsel to be
necessary to the lawful issuance and sale of any Shares hereunder,
shall relieve the Company of any liability in respect of the failure to
issue or sell such Shares as to which such requisite authority shall
not have been obtained.
17. Reservation of Shares. The Company, during the term of
this Plan, will at all times reserve and keep available such number of
Shares as shall be sufficient to satisfy the requirements of the Plan.
3DFX INTERACTIVE, INC.
1999 SUPPLEMENTARY STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the Plan
shall have the same defined meanings in this Option Agreement.
1. NOTICE OF STOCK OPTION GRANT
Name of Optionee
Address of Optionee
You have been granted an option to purchase Common Stock of the
Company, subject to the terms and conditions of the Plan and this
Option Agreement, as follows:
Grant Number
Date of Grant
Vesting Commencement Date
Exercise Price per Share
Total Number of Shares Granted
Total Exercise Price
Type of Option:
Nonstatutory Stock Option
Term/Expiration Date:
Vesting Schedule:
Subject to the Optionee continuing to be a Service Provider on
such dates, this Option shall vest and become exercisable in accordance
with the following schedule:
25% of the Shares subject to the Option shall vest twelve months
after the Vesting Commencement Date, and 1/48th of the Shares subject
to the Option shall vest each month thereafter.
Termination Period:
This Option may be exercised for 90 days after Optionee ceases to
be a Service Provider. Upon the death or Disability of the Optionee,
this Option may be exercised for such longer period as provided in the
Plan after Optionee ceases to be a Service Provider. In no event shall
this Option be exercised later than the Term/Expiration Date as
provided above.
2. AGREEMENT
(a) Grant of Option. The Plan Administrator of the
Company hereby grants to the Optionee named in the Notice of Grant
attached as Part I of this Agreement (the "Optionee") an option (the
"Option") to purchase the number of Shares, as set forth in the Notice
of Grant, at the exercise price per share set forth in the Notice of
Grant (the "Exercise Price"), subject to the terms and conditions of
the Plan, which is incorporated herein by reference. Subject to
Section 14(b) of the Plan, in the event of a conflict between the terms
and conditions of the Plan and the terms and conditions of this Option
Agreement, the terms and conditions of the Plan shall prevail.
(b) Exercise of Option.
(i) Right to Exercise. This Option is exercisable
during its term in accordance with the Vesting Schedule set out in the
Notice of Grant and the applicable provisions of the Plan and this
Option Agreement.
(ii) Method of Exercise. This Option is exercisable
by delivery of an exercise notice, in the form attached as Exhibit A
(the "Exercise Notice"), which shall state the election to exercise the
Option, the number of Shares in respect of which the Option is being
exercised (the "Exercised Shares"), and such other representations and
agreements as may be required by the Company pursuant to the provisions
of the Plan. The Exercise Notice shall be completed by the Optionee
and delivered to the stock option administrator of the Company. The
Exercise Notice shall be accompanied by payment of the aggregate
Exercise Price as to all Exercised Shares. This Option shall be deemed
to be exercised upon receipt by the Company of such fully executed
Exercise Notice accompanied by such aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of this
Option unless such issuance and exercise complies with Applicable Laws.
Assuming such compliance, for income tax purposes the Exercised Shares
shall be considered transferred to the Optionee on the date the Option
is exercised with respect to such Exercised Shares.
(c) Method of Payment. Payment of the aggregate Exercise
Price shall be by any of the following, or a combination thereof, at
the election of the Optionee:
(i) cash;
(ii) check;
(iii) consideration received by the Company under a
cashless exercise program implemented by the Company in connection with
the Plan; or
(iv) surrender of other Shares which (i) in the case
of Shares acquired upon exercise of an option, have been owned by the
Optionee for more than six (6) months on the date of surrender, and
(ii) have a Fair Market Value on the date of surrender equal to the
aggregate Exercise Price of the Exercised Shares.
(v) with the Administrator's consent, delivery of
Optionee's promissory note (the "Note") in the form attached hereto as
Exhibit C, in the amount of the aggregate Exercise Price of the
Exercised Shares together with the execution and delivery by the
Optionee of the Security Agreement attached hereto as Exhibit B. The
Note shall bear interest at the "applicable federal rate" prescribed
under the Code and its regulations at time of purchase, and shall be
secured by a pledge of the Shares purchased by the Note pursuant to the
Security Agreement.
(d) Non-Transferability of Option. This Option may not
be transferred in any manner otherwise than by will or by the laws of
descent or distribution and may be exercised during the lifetime of
Optionee only by the Optionee. The terms of the Plan and this Option
Agreement shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
(e) Term of Option. This Option may be exercised only
within the term set out in the Notice of Grant, and may be exercised
during such term only in accordance with the Plan and the terms of this
Option Agreement.
(f) Tax Consequences. Some of the federal tax
consequences relating to this Option, as of the date of this Option,
are set forth below. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE
TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE OPTIONEE SHOULD
CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE
SHARES.
(i) Exercising the Option. The Optionee may incur
regular federal income tax liability upon exercise of an NSO. The
Optionee will be treated as having received compensation income
(taxable at ordinary income tax rates) equal to the excess, if any, of
the Fair Market Value of the Exercised Shares on the date of exercise
over their aggregate Exercise Price. If the Optionee is an Employee or
a former Employee, the Company will be required to withhold from his or
her compensation or collect from Optionee and pay to the applicable
taxing authorities an amount in cash equal to a percentage of this
compensation income at the time of exercise, and may refuse to honor
the exercise and refuse to deliver Shares if such withholding amounts
are not delivered at the time of exercise.
(ii) Disposition of Shares. If the Optionee holds
NSO Shares for at least one year, any gain realized on disposition of
the Shares will be treated as long-term capital gain for federal income
tax purposes.
(g) Entire Agreement; Governing Law. The Plan is
incorporated herein by reference. The Plan and this Option Agreement
constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior
undertakings and agreements of the Company and Optionee with respect to
the subject matter hereof, and may not be modified adversely to the
Optionee's interest except by means of a writing signed by the Company
and Optionee. This agreement is governed by the internal substantive
laws, but not the choice of law rules, of California.
(h) NO GUARANTEE OF CONTINUED SERVICE. OPTIONEE
ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE
VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE
PROVIDER AT THE WILL OF THE COMPANY (AND NOT THROUGH THE ACT OF BEING
HIRED, BEING GRANTED AN OPTION OR PURCHASING SHARES HEREUNDER).
OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH
HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED
ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY
PERIOD, OR AT ALL, AND SHALL NOT INTERFERE WITH OPTIONEE'S RIGHT OR THE
COMPANY'S RIGHT TO TERMINATE OPTIONEE'S RELATIONSHIP AS A SERVICE
PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.
By Optionee's signature and the signature of the Company's
representative below, Optionee and the Company agree that this Option
is granted under and governed by the terms and conditions of the Plan
and this Option Agreement. Optionee has reviewed the Plan and this
Option Agreement in their entirety, has had an opportunity to obtain
the advice of counsel prior to executing this Option Agreement and
fully understands all provisions of the Plan and Option Agreement.
Optionee hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Administrator upon any questions
relating to the Plan and Option Agreement. Optionee further agrees to
notify the Company upon any change in the residence address indicated
below.
OPTIONEE: 3DFX INTERACTIVE, INC.
Signature By
Print Name Title
Residence Address
EXHIBIT A
1999 SUPPLEMENTAL STOCK OPTION PLAN
EXERCISE NOTICE
3dfx Interactive, Inc.
4435 Fortran Drive
San Jose, CA 95134
Attention: Secretary
1. Exercise of Option. Effective as of today, ________________,
199__, the undersigned ("Purchaser") hereby elects to purchase
______________ shares (the "Shares") of the Common Stock of 3dfx
Interactive, Inc. (the "Company") under and pursuant to the 1999
Supplemental Stock Option Plan (the "Plan") and the Stock Option
Agreement dated, 19___ (the "Option Agreement"). The purchase price
for the Shares shall be $, as required by the Option Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the
Company the full purchase price for the Shares.
3. Representations of Purchaser. Purchaser acknowledges that
Purchaser has received, read and understood the Plan and the Option
Agreement and agrees to abide by and be bound by their terms and
conditions.
4. Rights as Stockholder. Until the issuance (as evidenced by
the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company) of the Shares, no right to
vote or receive dividends or any other rights as a stockholder shall
exist with respect to the Optioned Stock, notwithstanding the exercise
of the Option. The Shares so acquired shall be issued to the Optionee
as soon as practicable after exercise of the Option. No adjustment
will be made for a dividend or other right for which the record date is
prior to the date of issuance, except as provided in Section 12 of the
Plan.
5. Tax Consultation. Purchaser understands that Purchaser may
suffer adverse tax consequences as a result of Purchaser's purchase or
disposition of the Shares. Purchaser represents that Purchaser has
consulted with any tax consultants Purchaser deems advisable in
connection with the purchase or disposition of the Shares and that
Purchaser is not relying on the Company for any tax advice.
6. Entire Agreement; Governing Law. The Plan and Option
Agreement are incorporated herein by reference. This Agreement, the
Plan and the Option Agreement constitute the entire agreement of the
parties with respect to the subject matter hereof and supersede in
their entirety all prior undertakings and agreements of the Company and
Purchaser with respect to the subject matter hereof, and may not be
modified adversely to the Purchaser's interest except by means of a
writing signed by the Company and Purchaser. This agreement is
governed by the internal substantive laws, but not the choice of law
rules, of California.
Submitted by: Accepted by:
PURCHASER: 3DFX INTERACTIVE, INC.
Signature By
Print Name Title
_____________________________________
Date Received
Address: Address:
4435 Fortran Drive
San Jose, CA 95134
Exhibit 5.1
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1050
TELEPHONE 650-493-9300 FACSIMILE 650-493-6811
WWW.WSGR.COM
September 7, 1999
3Dfx Interactive, Inc.
4435 Fortran Drive
San Jose, California 95134
RE: Registration Statement on Form S-8
Gentlemen:
We have examined the Registration Statement on Form S-8 to be
filed by you with the Securities and Exchange Commission on or about
September 7, 1999 (the "Registration Statement") in connection with the
registration under the Securities Act of 1933, as amended, for an
aggregate of 1,000,000 shares of your Common Stock under the 1999
Supplementary Stock Option Plan. Such shares of Common Stock are
referred to herein as the "Shares," and such plans and compensation
agreement is referred to herein as the "Plan." As your counsel in
connection with this transaction, we have examined the proceedings
taken and are familiar with the proceedings proposed to be taken by you
in connection with the issuance and sale of the Shares pursuant to the
Plan.
It is our opinion that, when issued and sold in the manner
described in the Plan and pursuant to the agreements which accompany
each grant under the Plan, the Shares will be legally and validly
issued, fully-paid and non-assessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement, and further consent to the use of our name
wherever appearing in the Registration Statement and any amendments
thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
Exhibit 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January 22, 1999
relating to the financial statements which appears in the 1998 Annual
Report on Form 10-K of 3Dfx Interactive, Inc. for the year ended December 31,
1998, as amended by 3Dfx Interactive, Inc.'s Annual Report on Form 10-K/A.
We also consent to the incorporation by reference of our report dated January
22, 1999 relating to the financial statement schedule, which appears in
such Annual Report on Form 10-K, as amended by the Annual Report on Form 10-K/A.
/s/ PricewaterhouseCoopers LLP
San Jose, California
September 2, 1999
