<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
------------------------------- -----------
(Address of principal executive offices) (Zip Code)
1995 EMPLOYEE STOCK PLAN
--------------------------------------------------------
(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
--------------------------------------------------------
(Name, address, and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
--------------------------------------------------------
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 2,000,000 $17.28(1) $34,560,000 $9,608
- --------------------------------------------------------------------------------
(1) 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 for the Common Stock as reported on the Nasdaq National Market
on May 17, 1999.
<PAGE>
The contents of the Registrant's Form S-8 Registration
Statement (Registration Statement No. 333-58207) filed with the Commission
on June 20, 1998 and the Registrant's Form S-8 Registration Statement
(Registration Statement No. 333-39109) filed with the Commission on
October 30, 1997 are incorporated herein by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits.
Number Document
4.1 1995 Employee Stock Plan, as amended, and forms of
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-5).
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 registra-
tion 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 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 20th day of May, 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 May 20, 1999
- --------------------------- Officer and Director
(L. Gregory Ballard) (Principal Executive Officer)
/s/ DAVID ZACARIAS Vice President of Finance and May 20, 1999
- --------------------------- Chief Financial Officer
(David Zacarias) (Principal Financial and
Accounting Officer)
/s/ GORDON A. CAMPBELL Chairman of the Board May 20, 1999
- ---------------------------
(Gordon A. Campbell)
/s/ JAMES WHIMS Director May 20, 1999
- ---------------------------
(James Whims)
/s/ PHILIP M. YOUNG Director May 20, 1999
- ---------------------------
(Philip M. Young)
/s/ ANTHONY SUN Director May 20, 1999
- ---------------------------
(Anthony Sun)
Vice President, Finance and
/s/ ALEX LEUPP Director May 20, 1999
- ---------------------------
(Alex Leupp)
/s/ SCOTT D. SELLERS Director May 20, 1999
- ---------------------------
(Scott D. Sellers)
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________________
EXHIBITS
___________________________________
Registration Statement on Form S-8
3Dfx Interactive, Inc.
May 21, 1999
INDEX TO EXHIBITS
Exhibit
Number Documents
4.1 1995 Employee Stock Plan, as amended, and forms of agreement thereunder
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Independent Accountants
23.2 Consent of counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see page II-5)
Exhibit 4.1
3DFX INTERACTIVE, INC.
EMPLOYEE STOCK PLAN
(As Amended May 1997, February 1998 and December 1998)
1. Purposes of the Plan. The purposes of this Stock Plan are to
attract and retain the best available personnel for positions of
substantial responsibility, to provide additional incentive to Employees
and Consultants of the Company and its Subsidiaries and to promote the
success of the Company's business. Options granted under the Plan may be
Incentive Stock Options or Nonstatutory Stock Options, as determined by the
Administrator at the time of grant of an option and subject to the
applicable provisions of Section 422 of the Code, as amended, and the
regulations promulgated thereunder. Stock Purchase Rights may also be
granted under the Plan.
2. Definitions. As used herein, the following definitions shall
apply:
(a) "Administrator" means the Board or any of its Committees
appointed pursuant to 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 the committee appointed by the Board of
Directors in accordance with paragraph (a) of 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, who
is engaged by the Company or any Parent or Subsidiary to render services
and is compensated for such services.
(i) "Continuous Status as an Employee" means the absence of
any interruption or termination of the employment relationship by the
Company or any Subsidiary. Continuous Status as an Employee shall not be
considered interrupted in the case of: (i) sick leave, military leave or
any other leave of absence approved by the Board, provided that such leave
is for a period of not more than ninety (90) days, unless reemployment upon
the expiration of such leave is guaranteed by contract or statute, or
unless provided otherwise pursuant to Company policy adopted from time to
time; or (ii) in the case of transfers between locations of the Company or
between the Company, its Subsidiaries or its successor.
(j) "Director" means a member of the Board.
(k) "Employee" means any person, including officers and
directors, employed by the Company or any Parent or Subsidiary of the
Company. The payment of a director's fee by the Company shall not 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 established
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; or
(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) "Incentive Stock Option" means an Option intended to
qualify as an incentive stock option within the meaning of Section 422 of
the Code.
(o) "Nonstatutory Stock Option" means an Option not intended
to qualify as an Incentive Stock Option.
(p) "Option" means a stock option granted pursuant to the
Plan.
(q) "Optioned Stock" means the Common Stock subject to an
Option.
(r) "Optionee" means an Employee or Consultant who receives
an Option.
(s) "Parent" means a "parent corporation", whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(t) "Plan" means this Employee Stock Plan, as amended from
time to time.
(u) "Share" means a share of the Common Stock, as adjusted in
accordance with Section 11 of the Plan.
(v) "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 11 of the Plan, the maximum aggregate number of shares which may be
optioned and sold under the Plan is 6,375,000 shares of Common Stock. 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 repricing or
Option exchange, the unpurchased Shares which were subject thereto shall
become available for future grant or sale under the Plan (unless the Plan
has terminated); provided, however, that Shares that have actually been
issued under the Plan upon exercise of an Option shall not be returned to
the Plan and shall not become available for future distribution under the
Plan, except that if Shares of Restricted Stock are repurchased by the
Company at their original purchase price, such Shares shall become
available for future grant under the Plan.
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
Employees and Consultants.
(ii) Section 162(m). To the extent that the
Administrator determines it to be desirable to qualify Options granted
hereunder as "performance-based compensation" within the meaning of Section
162(m) of the Code, the Plan shall be administered by a Committee of two or
more "outside directors" within the meaning of Section 162(m) of the Code.
(iii) Rule 16b-3. To the extent desirable to qualify
transactions hereunder as exempt under Rule 16b-3, the transactions
contemplated hereunder shall be structured to satisfy the requirements for
exemption under Rule 16b-3.
(iv) 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 provisions
of the Plan and in the case of a Committee, 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;
(ii) to select the Employees and Consultants to whom
Options may be granted hereunder;
(iii) to determine the number of shares of Common Stock
to be covered by each Option granted hereunder;
(iv) to approve forms of agreement for use under the
Plan;
(v) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any Option 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 of the
shares of Common Stock relating thereto, based in each case on such factors
as the Administrator, in its sole discretion, shall determine;
(vi) 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;
(vii) to institute an Option repricing or Option exchange
program;
(viii) to construe and interpret the terms of the Plan and
awards granted pursuant to the Plan;
(ix) 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;
(x) to modify or amend each Option (subject to Section
15(c) 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;
(xi) 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;
(xii) to authorize any person to execute on behalf of the
Company any instrument required to effect the grant of an Option previously
granted by the Administrator;
(xiii) to make all other determinations deemed necessary
or advisable for administering the Plan.
(c) Effect of Administrator's Decision. All decisions,
determinations and interpretations of the Administrator shall be final and
binding on all Optionees and any other holders of any Options.
5. Eligibility.
(a) Nonstatutory Stock Options may be granted to Employees
and Consultants. Incentive Stock Options may be granted only to Employees.
An Employee or Consultant who has been granted an Option may, if he or she
is otherwise eligible, be granted an additional Option or Options.
(b) Each Option shall be designated in the written option
agreement as either an Incentive Stock Option or a Nonstatutory Stock
Option. However, notwithstanding such designations, to the extent that the
aggregate Fair Market Value of the Shares with respect to which Options
designated as Incentive Stock Options are exercisable for the first time by
any Optionee during any calendar year (under all plans of the Company or
any Parent or Subsidiary) exceeds $100,000, such excess Options shall be
treated as Nonstatutory Stock Options.
(c) For purposes of Section 5(b), Incentive Stock Options
shall be taken into account in the order in which they were granted, and
the Fair Market Value of the Shares shall be determined as of the time the
Option with respect to such Shares is granted.
(d) The Plan shall not confer upon any Optionee any right
with respect to continuation of the Optionee's employment or consulting
relationship with the Company, nor shall it interfere in any way with his
right or the Company's right to terminate the Optionee's employment or
consulting relationship at any time, with or without cause.
6. Term of Plan. The Plan shall become effective upon the earlier
to occur of its adoption by the Board of Directors or its approval by the
shareholders of the Company as described in Section 18 of the Plan. It
shall continue in effect for a term of ten (10) years unless sooner
terminated under Section 14 of the Plan.
7. Term of Option. The term of each Option shall be the term
stated in the Option Agreement; provided, however, that in the case of an
Incentive Stock Option, the term shall be no more than ten (10) years from
the date of grant thereof or such shorter term as may be provided in the
Option Agreement. However, in the case of an Option granted to an Optionee
who, at the time the Option is granted, owns stock representing more than
ten percent (10%) of the voting power of all classes of stock of the
Company or any Parent or Subsidiary, the term of the Option shall be five
(5) years from the date of grant thereof or such shorter term as may be
provided in the Option Agreement.
8. Option Exercise Price and Consideration.
(a) The per share exercise price for the Shares to be issued
pursuant to exercise of an Option shall be such price as is determined by
the Board, but shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the
time of the grant of such Incentive Stock Option, owns
stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company or
any Parent or Subsidiary, the per Share exercise price
shall be no less than 110% of the Fair Market Value per
Share on the date of grant.
(B) granted to any other Employee, the
per Share exercise price shall be no less than 100% of
the Fair Market Value per Share on the date of grant.
(ii) In the case of a Nonstatutory Stock Option, the per
Share exercise price shall be determined by the Administrator. In the case
of a Nonstatutory Stock Option intended to qualify as "performance-based
compensation" within the meaning of Section 162(m) of the Code, the per
Share exercise price shall be no less than 100% of the Fair Market Value
per Share on the date of grant.
(iii) Notwithstanding the foregoing, Options may be
granted with a per Share exercise price of less than 100% of the Fair
Market Value per Share on the date of grant pursuant to a merger or other
corporate transaction.
(b) The consideration to be paid for the Shares to be issued
upon exercise of an Option, including the method of payment, shall be
determined by the Administrator (and, in the case of an Incentive Stock
Option, shall be determined at the time of grant) and may consist entirely
of (i) cash, (ii) check, (iii) other Shares which (x) in the case of Shares
acquired upon exercise of an Option either have been owned by the Optionee
for more than six months on the date of surrender or were not acquired,
directly or indirectly, from the Company, and (y) 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, (iv) authorization from
the Company to retain from the total number of Shares as to which the
Option is exercised that number of Shares having a Fair Market Value on the
date of exercise equal to the exercise price for the total number of Shares
as to which the Option is exercised, (v) delivery of a properly executed
exercise notice together with irrevocable instructions to a broker to
promptly deliver to the Company the amount of sale or loan proceeds
required to pay the exercise price, (vi) any combination of the foregoing
methods of payment, (viii) or such other consideration and method of
payment for the issuance of Shares to the extent permitted under Applicable
Laws.
9. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any
Option granted hereunder shall be exercisable at such times and under such
conditions as determined by the Administrator, including performance
criteria with respect to the Company and/or the Optionee, and as shall be
permissible under the terms of the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice
of such exercise has been given to the Company in accordance with the terms
of the Option by the person entitled to exercise the Option and full
payment for the Shares with respect to which the Option is exercised has
been received by the Company. Full payment may, as authorized by the
Board, consist of any consideration and method of payment allowable under
Section 8(b) of the Plan. 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 stock certificate evidencing such
Shares, no right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the Optioned Stock, notwithstanding
the exercise of the Option. The Company shall issue (or cause to be
issued) such stock certificate promptly upon 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 the stock certificate is issued, except as
provided in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a decrease
in the number of Shares which thereafter may be 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 Employment. In the event of termination
of an Optionee's consulting relationship or Continuous Status as an
Employee with the Company (but not upon a change of status from an Employee
to Consultant or Consultant to Employee), such Optionee may, but only
within the period stated in the Option Agreement (which, in the case of an
Incentive Stock Option, shall be no more than ninety (90) days after the
date of such termination and, in the case of any Option, shall be no later
than the expiration date of the term of such Option as set forth in the
Option Agreement), exercise the Option to the extent that Optionee was
entitled to exercise it at the date of such termination. To the extent
that Optionee was not entitled to exercise the Option at the date of such
termination, or if Optionee does not exercise such Option to the extent so
entitled within the time specified herein, the Option shall terminate.
(c) Disability of Optionee. Notwithstanding the provisions
of Section 9(b) above, in the event of termination of an Optionee's
Consulting relationship or Continuous Status as an Employee as a result of
his or her total and permanent disability (as defined in Section 22(e)(3)
of the Code), Optionee may, but only within twelve (12) months from the
date of such termination (but in no event later than the expiration date of
the term of such Option as set forth in the Option Agreement), exercise the
Option to the extent otherwise entitled to exercise it at the date of such
termination. To the extent that Optionee is not entitled to exercise the
Option at the date of termination, or if Optionee does not exercise such
Option to the extent so entitled within the time specified herein, the
Option shall terminate.
(d) Death of Optionee. In the event of the death of an
Optionee, the Option may be exercised, at any time within twelve (12)
months following the date of death (but in no event later than the
expiration date of the term of such Option as set forth in the Option
Agreement), by the Optionee's estate or by a person who acquired the right
to exercise the Option by bequest or inheritance, but only to the extent
the Optionee is entitled to exercise the Option on the date of death. To
the extent that Optionee is not entitled to exercise the Option on the date
of death, or if the Option is not exercised to the extent so exercisable
within the time specified herein, the Option shall terminate.
10. 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.
11. Adjustments Upon Changes in Capitalization or Merger.
(a) Changes in Capitalization. Subject to any required
action by the shareholders 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 subject to the Option
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 subject to the Option, 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.
12. Time of Granting Options. The date of grant of an Option
shall, for all purposes, be the date on which the Administrator makes the
determination granting such Option, or such other date as is determined by
the Board. Notice of the determination shall be given to each Employee or
Consultant to whom an Option is so granted within a reasonable time after
the date of such grant.
13. Limitations.
(a) Each Option shall be designated in the written option
agreement as either an Incentive Stock Option or a Nonstatutory Stock
Option. However, notwithstanding such designation, to the extent that the
aggregate Fair Market Value of the Shares with respect to which Incentive
Stock Options are exercisable for the first time by the Optionee during any
calendar year (under all plans of the Company and any Parent or Subsidiary)
exceeds $100,000, such Options shall be treated as Nonstatutory Stock
Options. For purposes of this Section 6(a), Incentive Stock Options shall
be taken into account in the order in which they were granted. The Fair
Market Value of the Shares shall be determined as of the time the Option
with respect to such Shares is granted.
(b) Neither the Plan nor any Option shall confer upon an
Optionee any right with respect to continuing the Optionee's employment or
consulting relationship with the Company, nor shall they interfere in any
way with the Optionee's right or the Company's right to terminate such
employment or consulting relationship at any time, with or without cause.
(c) The following limitations shall apply to grants of
Options to Employees:
(i) No Employee shall be granted, in any fiscal year of
the Company, Options to purchase more than 150,000 (post-split) Shares.
(ii) In connection with his or her initial employment,
an Employee may be granted Options to purchase up to an additional 250,000
(post-split) Shares which shall not count against the limit set forth in
subsection (i) above.
(iii) The foregoing limitations shall be adjusted
proportionately in connection with any change in the Company's
capitalization as described in Section 11.
(iv) If an Option is cancelled in the same fiscal year
of the Company in which it was granted (other than in connection with a
transaction described in Section 11), the cancelled Option will be counted
against the limits set forth in subsections (i) and (ii) above. For this
purpose, if the exercise price of an Option is reduced, the transaction
will be treated as a cancellation of the Option and the grant of a new
Option.
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) Shareholder Approval. The Company shall obtain
shareholder approval of any Plan amendment to the extent necessary and
desirable to comply with Applicable Laws.
(c) 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. 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 pursuant thereto shall comply
with all Applicable Laws, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
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. 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.
17. 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.
18. Shareholder Approval. Continuance of the Plan shall be subject
to approval by the shareholders of the Company within twelve (12) months
before or after the date the Plan is adopted. Such shareholder approval
shall be obtained in the degree and manner required under applicable state
and federal law.
3DFX INTERACTIVE, INC.
EMPLOYEE STOCK PLAN
NOTICE OF STOCK OPTION GRANT
[Optionee's Name and Address]
_________________________________
_________________________________
You have been granted an option, consisting of the Stock Option
Agreement attached hereto as Exhibit A and this Notice of Stock Option
Grant (together, the "Option") to purchase Common Stock of 3DFX
INTERACTIVE, INC. (the "Company") as follows:
Date of Grant
Vesting Date
Option Price Per Share $
Total Number of Shares Granted
Total Price of Shares Granted
Type of Option ___ Incentive Stock Option
___ Nonqualified Stock Option
Term/Expiration Date 10 years/
Exercise Schedule:
This Option may be exercised, in whole or in part, in accordance with
the Vesting Schedule set out below;
Vesting Schedule:
Date of Vesting
Number of Shares
First Annual Anniversary of
Vesting Date
25%
Each Monthly Anniversary of
Vesting Date After First Annual
Anniversary of Vesting Date
1/148th of the total
Shares until fully
vested
Termination Period:
Option may be exercised for 90 days after termination of employment
or consulting relationship except as set out in Sections 7 and 8 of the
Stock Option Agreement (but in no event later than the Expiration Date).
Additional Forms of Consideration:
In addition to the forms of consideration set out in Section 3 of the
Stock Option Agreement, this Option may be exercised using the following
forms of consideration:
___ No Additional Forms
___ Additional Forms as noted: Promissory Note at the discretion of
the Company.
Exercise of this Option shall be on a form of Exercise Notice
provided by the Company.
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT
TO THIS OPTION IS EARNED ONLY BY CONTINUING CONSULTANCY OR EMPLOYMENT AT
THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED
THIS OPTION OR ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES
AND AGREES THAT NOTHING IN THIS AGREEMENT, NOR IN THE COMPANY'S EMPLOYEE
STOCK PLAN WHICH IS INCORPORATED HEREIN BY REFERENCE, SHALL CONFER UPON
OPTIONEE ANY RIGHT WITH RESPECT TO CONTINUATION OF EMPLOYMENT OR
CONSULTANCY BY THE COMPANY, NOR SHALL IT INTERFERE IN ANY WAY WITH HIS
RIGHT OR THE COMPANY'S RIGHT TO TERMINATE HIS EMPLOYMENT OR CONSULTANCY AT
ANY TIME, WITH OR WITHOUT CAUSE.
Optionee acknowledges receipt of a copy of the Plan and certain
information related to it and represents that he or she is familiar with
the terms and provisions of the Plan and this Option. Optionee accepts
this Option subject to all such terms and provisions. Optionee has
reviewed the Plan and this Option in their entirety, has had an opportunity
to obtain the advice of counsel prior to executing this Option and fully
understands all provisions of the Option.
By your signature and the signature of the Company's representative
below, you and the Company agree that this Option is granted under and
governed by the terms and conditions of the Employee Stock Plan and the
[Incentive/Nonstatutory] Stock Option Agreement, all of which are attached
and made a part of this document.
OPTIONEE: 3DFX INTERACTIVE, INC.,
a California corporation
_____________________________ By __________________________
Signature
_____________________________ Title _______________________
Print Name
CONSENT OF SPOUSE
The undersigned spouse of Optionee has read and hereby approves the
terms and conditions of the Plan and this Stock Option. In consideration
of the Company's granting his or her spouse the right to purchase Shares as
set forth in the Plan and this Stock Option, the undersigned hereby agrees
to be irrevocably bound by the terms and conditions of the Plan and this
Stock Option and further agrees that any community property interest shall
be similarly bound. The undersigned hereby appoints the undersigned's
spouse as attorney-in-fact for the undersigned with respect to any
amendment or exercise of rights under the Plan or this Stock Option.
Spouse of Purchaser
3DFX INTERACTIVE, INC.
EMPLOYEE STOCK PLAN
EXHIBIT A TO NOTICE OF GRANT
STOCK OPTION AGREEMENT
1. Grant of Option. 3DFX INTERACTIVE, INC., a California
corporation (the "Company"), hereby grants to the Optionee (the "Optionee")
named in the Notice of Grant, an option (the "Option") to purchase a 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, conditions and definitions of the Employee Stock Plan (the
"Plan") adopted by the Company, which is incorporated herein by reference.
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. Unless otherwise defined herein, the terms
defined in the Plan shall have the same defined meanings in this Option
Agreement.
If designated in the Notice of Grant as an Incentive Stock Option,
this Option is intended to qualify as an Incentive Stock Option under
Section 422 of the Code.
2. Exercise of Option.
(a) 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. In
the event of Optionee's death, Disability or other termination of
Optionee's employment or consulting relationship, the exercisability of the
Option is governed by the applicable provisions of the Plan and this Option
Agreement.
(b) Method of Exercise. This Option is exercisable by
delivery of an exercise notice, in the form provided by the Company (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 to
the holder's investment intent with respect to the Exercised Shares as may
be required by the Company pursuant to the provisions of the Plan. The
Exercise Notice shall be signed by the Optionee and, if the Optionee is
married, by the Optionee's spouse, and shall be delivered in person or by
certified mail to the Secretary 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 all relevant
provisions of law and the requirements of any stock exchange upon which the
Shares are then listed. 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.
3. 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:
(a) cash;
(b) check; or
(c) such other consideration as is indicated on the Notice of
Grant.
4. Restrictions on Exercise. This Option may not be exercised
until such time as the Plan has been approved by the shareholders of the
Company, or if the issuance of such Shares upon such exercise or the method
of payment of consideration for such shares would constitute a violation of
any applicable federal or state securities or other law or regulation,
including any rule under Part 207 of Title 12 of the Code of Federal
Regulations ("Regulation G") as promulgated by the Federal Reserve Board.
As a condition to the exercise of this Option, the Company may require
Optionee to make any representation and warranty to the Company as may be
required by any applicable law or regulation.
5. Termination of Relationship. In the event of termination of
Optionee's consulting relationship or Continuous Status as an Employee,
Optionee may, to the extent otherwise so entitled at the date of such
termination (the "Termination Date"), exercise this Option during the
Termination Period set out in the Notice of Grant. To the extent that
Optionee is not entitled to exercise this Option at the date of such
termination, or if Optionee does not exercise this Option within the time
specified herein, the Option shall terminate.
6. Disability of Optionee. Notwithstanding the provisions of
Section 5 above, in the event of termination of Optionee's Continuous
Status as an Employee as a result of his or her total and permanent
disability (as defined in Section 22(e)(3) of the Code), Optionee may, but
only within twelve (12) months from the date of termination of employment
(but in no event later than the date of expiration of the term of this
Option as set forth in Section 10 below), exercise the Option to the extent
otherwise so entitled at the date of such termination. To the extent that
Optionee is not entitled to exercise the Option at the date of termination,
or if Optionee does not exercise such Option (to the extent otherwise so
entitled) within the time specified herein, the Option shall terminate.
7. Death of Optionee. In the event of the death of Optionee, the
Option may be exercised at any time within twelve (12) months following the
date of death (but in no event later than the date of expiration of the
term of this Option as set forth in Section 10 below), by Optionee's estate
or by a person who acquired the right to exercise the Option by bequest or
inheritance, but only to the extent the Optionee could exercise the Option
at the date of death.
8. 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 him. The terms of this Option shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
9. 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. The
limitations set out in Section 7 of the Plan regarding Option terms and
Options granted to more than ten percent (10%) shareholders shall apply to
this Option.
10. Tax Consequences. Some of the federal and state 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.
(a) Exercising the Option.
(i) Nonqualified Stock Option ("NSO"). If this Option
does not qualify as an ISO, the Optionee may incur regular federal income
tax and state income tax liability upon exercise. 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, 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 equal to a percentage of this
compensation income at the time of exercise.
(ii) Incentive Stock Option ("ISO"). If this Option
qualifies as an ISO, the Optionee will have no regular federal income tax
or state income tax liability upon its exercise, although the excess, if
any, of the fair market value of the Exercised Shares on the date of
exercise over their aggregate Exercise Price will be treated as an
adjustment to the alternative minimum tax for federal tax purposes and may
subject the Optionee to alternative minimum tax in the year of exercise.
(b) Disposition of Shares.
(i) NSO. 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.
(ii) ISO. If the Optionee holds ISO Shares for at least
one year after exercise and two years after the grant date, any gain
realized on disposition of the Shares will be treated as long-term capital
gain for federal income tax purposes. If the Optionee disposes of ISO
Shares within one year after exercise or two years after the grant date,
any gain realized on such disposition will be treated as compensation
income (taxable at ordinary income rates) to the extent of the excess, if
any, of the lesser of the difference between the fair market value of the
Shares acquired on the date of exercise and the aggregate Exercise Price,
or the difference between the sale price of such Shares and the aggregate
Exercise Price.
(c) Notice of Disqualifying Disposition of ISO Shares. If
the Optionee sells or otherwise disposes of any of the Shares acquired
pursuant to an ISO on or before the later of the date two years after the
grant date, or the date one year after the exercise date, the Optionee
shall immediately notify the Company in writing of such disposition. The
Optionee agrees that he or she may be subject to income tax withholding by
the Company on the compensation income recognized from such early
disposition of ISO Shares by payment in cash or out of the current earnings
paid to the Optionee.
3DFX INTERACTIVE, INC.
EMPLOYEE STOCK PLAN
EXERCISE NOTICE FOR VESTED SHARES
3Dfx Interactive, Inc.
Attention: Secretary
1. Exercise of Option. Effective as of today, ___________, 19__,
the undersigned ("Optionee") hereby elects to exercise Optionee's option to
purchase _________ shares of the Common Stock (the "Shares") of 3DFX
INTERACTIVE, INC. (the "Company") under and pursuant to the Company's
Employee Stock Plan, as amended (the "Plan"), and the Notice of Grant and [
] Incentive [ ] Nonqualified Stock Option Agreement dated ________
(together, the "Option").
2. Representations of Optionee. Optionee acknowledges that
Optionee has received, read and understood the Plan and the Option
Agreement and agrees to abide by and be bound by their terms and
conditions. Optionee represents that Optionee is purchasing the Shares for
Optionee's own account for investment and not with a view to, or for sale
in connection with, a distribution of any of such Shares.
3. Rights as Shareholder. Subject to the terms and conditions of
this Agreement, Optionee shall have all of the rights of a shareholder of
the Company with respect to the Shares from and after the date that
Optionee delivers full payment of the Exercise Price until such time as
Optionee disposes of the Shares. Upon such disposition, Purchaser shall
have no further rights as a holder of the Shares.
4. Tax Consultation. Optionee understands that Optionee may
suffer adverse tax consequences as a result of Optionee's purchase or
disposition of the Shares. Optionee represents that Optionee has consulted
with any tax consultants Optionee deems advisable in connection with the
purchase or disposition of the Shares and that Optionee is not relying on
the Company for any tax advice.
5. Market Standoff Agreement. Optionee hereby agrees that if so
requested by the Company or any representative of the underwriters in
connection with any registration of the offering of any securities of the
Company under the 1933 Act, Optionee shall not sell or otherwise transfer
any Shares or other securities of the Company during the 180-day period
following the effective date of a registration statement of the Company
filed under the 1933 Act; provided, however, that such restriction shall
only apply to the first two registration statements of the Company to
become effective under the 1933 Act which include securities to be sold on
behalf of the Company to the public in an underwritten public offering
under the 1933 Act. The Company may impose stop-transfer instructions with
respect to securities subject to the foregoing restrictions until the end
of such 180-day period.
6. Successors and Assigns. The Company may assign any of its
rights under this Agreement to single or multiple assignees, and this
Agreement shall inure to the benefit of the successors and assigns of the
Company. Subject to the restrictions on transfer herein set forth, this
Agreement shall be binding upon Optionee and his or her heirs, executors,
administrators, successors and assigns.
7. Interpretation. Any dispute regarding the interpretation of
this Agreement shall be submitted by Optionee or by the Company forthwith
to the Company's Board of Directors or the committee thereof that
administers the Plan, which shall review such dispute at its next regular
meeting. The resolution of such a dispute by the Board or committee shall
be final and binding on the Company and on Optionee.
8. Governing Law; Severability. This Agreement shall be governed
by and construed in accordance with the laws of the State of California
excluding that body of law pertaining to conflicts of law. Should any
provision of this Agreement be determined by a court of law to be illegal
or unenforceable, the other provisions shall nevertheless remain effective
and shall remain enforceable.
9. Notices. Any notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given upon personal
delivery or upon deposit in the United States mail by certified mail, with
postage and fees prepaid, addressed to the other party at its address as
shown below beneath its signature, or to such other address as such party
may designate in writing from time to time to the other party.
10. Further Instruments. The parties agree to execute such further
instruments and to take such further action as may be reasonably necessary
to carry out the purposes and intent of this Agreement.
11. Delivery of Payment. Optionee herewith delivers to the Company
the full Exercise Price for the Shares.
12. Entire Agreement. The Plan and Notice of Grant/Option
Agreement are incorporated herein by reference. This Agreement, the Plan
and the Notice of Grant/Option Agreement constitute the entire agreement of
the parties and supersede in their entirety all prior undertakings and
agreements of the Company and Optionee with respect to the subject matter
hereof, and is governed by California law.
Submitted by: Accepted by:
PURCHASER: 3DFX INTERACTIVE, INC.
a California corporation
_____________________________ By
__________________________________
(Signature)
Its
__________________________________
Address _____________________ Address
______________________________
3DFX INTERACTIVE, INC.
EMPLOYEE STOCK PLAN
EXERCISE NOTICE FOR UNVESTED SHARES
AND RESTRICTED STOCK AGREEMENT
3DFX INTERACTIVE, INC.
Attention: Secretary
1. Exercise of Option. Effective as of today, ___________, 19__,
the undersigned ("Optionee") hereby elects to exercise Optionee's option to
purchase _________ shares of the Common Stock (the "Shares") of 3DFX
INTERACTIVE, INC. (the "Company") under and pursuant to the Company's
Employee Stock Plan, as amended (the "Plan") and the Notice of Grant and
[ ] Incentive [ ] Nonqualified Stock Option Agreement dated __________,
19__ (together, the "Option"). Of these Shares, Optionee has elected to
purchase __________ of those Shares which have become vested under the
Vesting Schedule set out in the Notice of Grant (the "Vested Shares") and
__________ Shares which have not yet vested under such schedule (the
"Unvested Shares"). The Purchase Price for the Shares shall be $_________,
as set out in the Notice of Grant, for an aggregate Purchase Price of
$_________.
2. Representations of Optionee. Optionee acknowledges that
Optionee has received, read and understood the Plan and the Option
Agreement and agrees to abide by and be bound by their terms and
conditions. Optionee represents that Optionee is purchasing the Shares for
Optionee's own account for investment and not with a view to, or for sale
in connection with, a distribution of any of such Shares.
3. Company's Repurchase Option. The Company or its assignee(s)
shall have the option to repurchase all of the Unvested Shares on the terms
and conditions set forth in this section (the "Repurchase Option") if the
Optionee should cease to be employed by the Company for any reason or no
reason, including without limitation death, disability, voluntary
resignation or termination by the Company with or without cause.
(a) Right of Termination Unaffected. Nothing in this
Agreement shall be construed to limit or otherwise affect in any manner
whatsoever the right or power of the Company to terminate Optionee's
employment at any time for any reason or no reason, with or without cause.
Optionee shall be considered to be employed by the Company if Optionee is
an officer, director or full-time employee of the Company or any Parent or
Subsidiary of the Company (as defined in the Plan) or if the Board of
Directors determines that Optionee is rendering substantial services as a
part-time employee, consultant or independent contractor to the Company or
any Parent or Subsidiary of the Company (as defined in the Plan). In case
of any dispute, the Board of Directors of the Company shall have discretion
to determine whether Optionee has ceased to be employed by the Company and
the date on which the employment relationship ceases (the "Termination
Date").
(b) Exercise of Repurchase Option. At any time within sixty
(60) days after Optionee's Termination Date, the Company or its assignee(s)
may elect to repurchase the Unvested Shares purchased pursuant to the
Option Agreement by giving Optionee (or Optionee's personal representative
as the case may be) written notice of exercise of the Repurchase Option.
(i) Repurchase Price. The Company or its
assignee(s) shall have the option to repurchase from Optionee
all of the Unvested Shares (or from Optionee's personal
representative as the case may be) at the Exercise Price (as
defined in the Option Agreement), as such price may be
adjusted from time to time to reflect any subsequent stock
dividend, stock split, reverse stock split or
recapitalization of the Company (the "Repurchase Price").
(ii) Payment of Repurchase Price. The
Repurchase Price shall be payable, at the option of the
Company or its assignee(s), by check or by cancellation of
all or a portion of any outstanding indebtedness of Optionee
to the Company (or, in the case of repurchase by an assignee,
to the assignee) or any combination thereof. The Repurchase
Price shall be paid without interest within 60 days after the
Termination Date.
(iii) Lapse of Repurchase Option. All Unvested
Shares held by the Optionee shall be released from the
Company's Repurchase Option and cease to be Unvested Shares
according to the Vesting Schedule set out in the Notice of
Grant.
4. Escrow. As security for the faithful performance of this
Agreement, Optionee agrees, immediately upon receipt of the certificate(s)
evidencing the Shares, to deliver such certificate(s), together with a
stock power in the form of Attachment 1 attached hereto, executed by
Optionee and by Optionee's spouse, if any (with the date and number of
Shares left blank), to the Secretary of the Company or its designee
("Escrow Holder"), who is hereby appointed to hold such certificate(s) and
stock power in escrow and to take all such actions and to effectuate all
such transfers and/or releases of such Shares as are in accordance with the
terms of this Agreement. Such appointment shall be evidenced by an
executed form of Joint Escrow Instructions, attached hereto as
Attachment 2. Optionee and the Company agree that Escrow Holder shall not
be liable to any party to this Agreement (or to any other party) for any
actions or omissions unless Escrow Holder is grossly negligent relative
thereto. The Escrow Holder may rely upon any letter, notice or other
document executed by any signature purported to be genuine and may rely on
advice of counsel and obey any order of any court with respect to the
transactions contemplated herein. The Shares shall be released from escrow
upon termination of both the Repurchase Option and the Right of First
Refusal; provided, however, that such release shall not affect the rights
of the Company with respect to any pledge of Shares to the Company.
5. Rights as Shareholder. Subject to the terms and conditions of
this Agreement, Optionee shall have all of the rights of a shareholder of
the Company with respect to the Shares from and after the date that
Optionee delivers full payment of the Exercise Price until such time as
Optionee disposes of the Shares or the Company and/or its assignee(s)
exercises the Repurchase Option or Right of First Refusal hereunder. Upon
such exercise, Optionee shall have no further rights as a holder of the
Shares so purchased except the right to receive payment for the Shares so
purchased in accordance with the provisions of this Agreement, and Optionee
shall forthwith cause the certificate(s) evidencing the Shares so purchased
to be surrendered to the Company for transfer or cancellation.
6. Tax Consequences.
(a) Tax Consultation. Optionee understands that Optionee may
suffer adverse tax consequences as a result of Optionee's purchase or
disposition of the Shares. Optionee represents that Optionee has consulted
with any tax consultants Optionee deems advisable in connection with the
purchase or disposition of the Shares and that Optionee is not relying on
the Company for any tax advice.
(b) Section 83(b) Election For Nonqualified Stock Options.
Optionee hereby acknowledges that Optionee has been informed that, with
respect to the exercise of any nonqualified stock option, unless an
election is filed by the Optionee with the Internal Revenue Service and, if
necessary, the proper state taxing authorities, within thirty (30) days of
the purchase of the Shares, electing pursuant to Section 83(b) of the
Internal Revenue Code of 1986, as amended (and similar state tax provisions
if applicable) to be taxed currently on any difference between the purchase
price of the Shares and their fair market value on the date of purchase,
there will be a recognition of taxable income to the Optionee, measured by
the excess, if any, of the fair market value of the Shares, at the time the
Company's Repurchase Option lapses over the purchase price for such Shares.
Optionee represents that Optionee has consulted any tax consultant(s)
Optionee deems advisable in connection with the purchase of the Shares or
the filing of the Election under Section 83(b) and similar tax provisions.
A form of Election Under Section 83(b) is attached hereto as Attachment 3
for reference. OPTIONEE HEREBY ASSUMES ALL RESPONSIBILITY FOR FILING SUCH
ELECTION AND PAYING ANY TAXES RESULTING FROM SUCH ELECTION OR THE LAPSE OF
THE REPURCHASE RESTRICTIONS ON THE SHARES.
(c) Section 83(b) Election For Alternative Minimum Tax for
Incentive Stock Options. Optionee hereby acknowledges that Optionee has
been informed that, with respect to the exercise of any incentive stock
option, unless an election is filed by the Optionee with the Internal
Revenue Service within thirty (30) days of the purchase of the Shares,
electing pursuant to Section 83(b) of the Internal Revenue Code of 1986, as
amended (and similar state tax provisions if applicable) to be taxed
currently for alternative minimum tax purposes on any difference between
the purchase price of the Shares and their fair market value on the date of
purchase, the Optionee will be required to include (for alternative minimum
tax purposes only) an amount equal to the excess, if any, of the fair
market value of the Shares, at the time the Company's Repurchase Option
lapses over the purchase price for such Shares. Optionee represents that
Optionee has consulted any tax consultant(s) Optionee deems advisable in
connection with the purchase of the Shares or the filing of the Election
for alternative minimum tax purposes under Section 83(b) and similar tax
provisions. A form of Election Under Section 83(b) is attached hereto as
Attachment 3A for reference. OPTIONEE HEREBY ASSUMES ALL RESPONSIBILITY
FOR FILING SUCH ELECTION AND PAYING ANY TAXES RESULTING FROM SUCH ELECTION
OR THE LAPSE OF THE REPURCHASE RESTRICTIONS ON THE SHARES.
7. Restrictive Legends and Stop-Transfer Orders.
(a) Legends. Optionee understands and agrees that the
Company shall cause the legends set forth below or legends substantially
equivalent thereto, to be placed upon any certificate(s) evidencing
ownership of the Shares together with any other legends that may be
required by state or federal securities laws:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN RIGHTS OF REPURCHASE HELD BY THE ISSUER OR ITS
ASSIGNEE(S) AS SET FORTH IN THE EXERCISE NOTICE AND
RESTRICTED STOCK AGREEMENT BETWEEN THE ISSUER AND THE
ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE
OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH RIGHTS
OF REPURCHASE ARE BINDING ON TRANSFEREES OF THESE SHARES.
8. Market Standoff Agreement. Optionee hereby agrees that if so
requested by the Company or any representative of the underwriters in
connection with any registration of the offering of any securities of the
Company under the 1933 Act, Optionee shall not sell or otherwise transfer
any Shares or other securities of the Company during the one hundred eighty
(180) day period following the effective date of a registration statement
of the Company filed under the 1933 Act; provided, however, that such
restriction shall only apply to the first two registration statements of
the Company to become effective under the 1933 Act which include securities
to be sold on behalf of the Company to the public in an underwritten public
offering under the 1933 Act. The Company may impose stop-transfer
instructions with respect to securities subject to the foregoing
restrictions until the end of such one hundred eighty (180) day period.
9. Successors and Assigns. The Company may assign any of its
rights under this Agreement to single or multiple assignees, and this
Agreement shall inure to the benefit of the successors and assigns of the
Company. Subject to the restrictions on transfer herein set forth, this
Agreement shall be binding upon Optionee and his or her heirs, executors,
administrators, successors and assigns.
10. Interpretation. Any dispute regarding the interpretation of
this Agreement shall be submitted by Optionee or by the Company forthwith
to the Company's Board of Directors or the committee thereof that
administers the Plan, which shall review such dispute at its next regular
meeting. The resolution of such a dispute by the Board or committee shall
be final and binding on the Company and on Optionee.
11. Governing Law; Severability. This Agreement shall be governed
by and construed in accordance with the laws of the State of California,
excluding that body of law pertaining to conflicts of law. Should any
provision of this Agreement be determined by a court of law to be illegal
or unenforceable, the other provisions shall nevertheless remain effective
and shall remain enforceable.
12. Notices. Any notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given upon personal
delivery or upon deposit in the United States mail by certified mail, with
postage and fees prepaid, addressed to the other party at its address as
shown below beneath its signature, or to such other address as such party
may designate in writing from time to time to the other party.
13. Further Instruments. The parties agree to execute such further
instruments and to take such further action as may be reasonably necessary
to carry out the purposes and intent of this Agreement.
14. Delivery of Payment. Optionee herewith delivers to the Company
the full Exercise Price for the Shares.
15. Entire Agreement. The Plan and Notice of Grant/Option
Agreement are incorporated herein by reference. This Agreement, the Plan
and the Notice of Grant/Option Agreement constitute the entire agreement of
the parties and supersede in their entirety all prior undertakings and
agreements of the Company and Optionee with respect to the subject matter
hereof, and is governed by California law except for that body of law
pertaining to conflict of laws.
Submitted by: Accepted by:
PURCHASER: 3DFX INTERACTIVE, INC.
By
(Signature)
Its
Address Address
3DFX INTERACTIVE, INC.
EMPLOYEE STOCK PLAN
ATTACHMENT 1 TO EXERCISE NOTICE
STOCK POWER AND ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Exercise Notice and
Restricted Stock Agreement dated as of __________, 19__, the undersigned
hereby sells, assigns and transfers unto
___________________________________________, _______________ shares of the
Common Stock of 3DFX INTERACTIVE, INC., a California corporation, standing
in the undersigned's name on the books of said corporation represented by
Certificate No. __________ delivered herewith, and does hereby irrevocably
constitute the Secretary of said corporation as attorney-in-fact, with full
power of substitution, to transfer said stock on the books of said
corporation.
Dated: __________, 19__
(Signature)
(Please Print Name)
(Spouse's Signature, if any)
(Please Print Name)
3DFX INTERACTIVE, INC.
EMPLOYEE STOCK PLAN
ATTACHMENT 2 TO EXERCISE NOTICE
JOINT ESCROW INSTRUCTIONS
___________, 199__
Secretary
3DFX INTERACTIVE, INC.
Dear Sir:
As Escrow Agent for both 3DFX INTERACTIVE, INC., a California
corporation ("Corporation"), and the undersigned purchaser of stock of the
Corporation ("Purchaser"), you are hereby authorized and directed to hold
the documents delivered to you pursuant to the terms of that certain
Restricted Stock Agreement ("Agreement"), dated as of __________, 19__, to
which a copy of these Joint Escrow Instructions is attached, in accordance
with the following instructions:
1. In the event the Corporation and/or any assignee of the
Corporation (referred to collectively for convenience herein as the
"Corporation") exercises the Repurchase Option set forth in the Agreement,
the Corporation shall give to Purchaser and you a written notice specifying
the number of shares of stock to be purchased, the purchase price, and the
time for a closing hereunder at the principal office of the Corporation.
Purchaser and the Corporation hereby irrevocably authorize and direct you
to close the transaction contemplated by such notice in accordance with the
terms of said notice.
2. At the closing, you are directed to date the stock assignments
necessary for the transfer in question, to fill in the number of shares
being transferred, and to deliver same, together with the certificate
evidencing the shares of stock to be transferred, to the Corporation
against the simultaneous delivery to you of the purchase price (by check or
by cancellation of any debt owed by Purchaser to the Corporation) for the
number of shares of stock being purchased pursuant to the exercise of the
Repurchase Option.
3. Purchaser irrevocably authorizes the Corporation to deposit
with you any certificates evidencing shares of stock to be held by you
hereunder and any additions and substitutions to said shares as defined in
the Agreement. Purchaser does hereby irrevocably constitute and appoint
you as his attorney-in-fact and agent for the term of this escrow to
execute with respect to such securities all documents necessary or
appropriate to make such securities negotiable and to complete any
transaction herein contemplated. Subject to the provisions of this
paragraph 3, Purchaser shall exercise all rights and privileges of a
stockholder of the Corporation while the stock is held by you.
4. Upon written request of the Purchaser after each successive
one-year period from the date of the Agreement, unless the Repurchase
Option has been exercised, you will deliver to Purchaser a certificate or
certificates representing so many shares of stock as are not then subject
to the Repurchase Option. Ninety days after cessation of Purchaser's
service to the Company, you will deliver to Purchaser a certificate or
certificates representing the aggregate number of shares sold and issued
pursuant to the Agreement and not purchased by the Corporation or its
assignees pursuant to exercise of the Repurchase Option.
Notwithstanding the foregoing, none of the certificates representing
the shares of stock deposited under these escrow instructions shall be
released to the Purchaser if the Purchaser's Note given in payment for such
shares has not been paid in full. So long as any Note is outstanding, the
shares shall be held by you as collateral for the obligation under the
Note. Subject to the provisions of this paragraph 4, upon payment of the
Note in full the certificates representing the shares may be released and
delivered to the Purchaser. In the event Purchaser defaults in payment of
the Note when due, you shall, upon written request of the Corporation,
deliver the certificate evidencing the shares of stock and the stock
assignments to the Corporation to enable the Corporation to exercise its
rights as a secured party under the Commercial Code of the State of
California.
5. If at the time of termination of this escrow you should have in
your possession any documents, securities, or other property belonging to
Purchaser, you shall deliver all of same to Purchaser and shall be
discharged of all further obligations hereunder.
6. Your duties hereunder may be altered, amended, modified or
revoked only by a writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties
as are specifically set forth herein and may rely and shall be protected in
relying or refraining from acting on any instrument reasonably believed by
you to be genuine and to have been signed or presented by the proper party
or parties. You shall not be personally liable for any act you may do or
omit to do hereunder as Escrow Agent or as attorney-in-fact for Purchaser
while acting in good faith and in the exercise of your own good judgment,
and any act done or omitted by you pursuant to the advice of your own
attorneys shall be conclusive evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all
warnings given by any of the parties hereto or by any other person or
corporation, excepting only orders or process of courts of law, and are
hereby expressly authorized to comply with and obey orders, judgments or
decrees of any court. In case you obey or comply with any such order,
judgment or decree, you shall not be liable to any of the parties hereto or
to any other person, firm or corporation by reason of such compliance,
notwithstanding any such order, judgment or decree being subsequently
reversed, modified, annulled, set aside, vacated or found to have been
entered without jurisdiction.
9. You shall not be liable in any respect on account of the
identity, authorities or rights of the parties executing or delivering or
purporting to execute or deliver the Agreement or any documents or papers
deposited or called for hereunder.
10. You shall not be liable for the outlawing of any rights under
the Statute of Limitations with respect to these Joint Escrow Instructions
or any documents deposited with you.
11. You shall be entitled to employ such legal counsel and other
experts as you may deem necessary properly to advise you in connection with
your obligations hereunder, may rely upon the advice of such counsel, and
may pay such counsel reasonable compensation therefor.
12. Your responsibilities as Escrow Agent hereunder shall terminate
if you shall cease to be Secretary of the Corporation or if you shall
resign by written notice to each party. In the event of any such
termination, the Corporation shall appoint a successor Escrow Agent.
13. If you reasonably require other or further instruments in
connection with these Joint Escrow Instructions or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such
instruments.
14. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the
securities held by you hereunder, you are authorized and directed to retain
in your possession without liability to anyone all or any part of said
securities until such disputes shall have been settled either by mutual
written agreement of the parties concerned or by a final order, decree or
judgment of a court of competent jurisdiction after the time for appeal has
expired and no appeal has been perfected, but you shall be under no duty
whatsoever to institute or defend any such proceedings.
15. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or
upon deposit in the United States Post Office, by registered or certified
mail with postage and fees prepaid, addressed to each of the other parties
thereunto entitled at the following addresses, or at such other addresses
as a party may designate by ten (10) days' advance written notice to each
of the other parties hereto.
CORPORATION: 3DFX INTERACTIVE, INC.
PURCHASER: ______________________________
______________________________
______________________________
______________________________
ESCROW AGENT: Secretary
3DFX INTERACTIVE, INC.
16. By signing these Joint Escrow Instructions, you become a party
hereto only for the purpose of said Joint Escrow Instructions; you do not
become a party to the Agreement.
17. This instrument shall be binding upon and inure to the benefit
of the parties hereto, and their respective successors and permitted
assigns.
Very truly yours,
3DFX INTERACTIVE, INC.,
a California corporation
By
Title
PURCHASER
ESCROW AGENT
Secretary
3DFX INTERACTIVE, INC.
EMPLOYEE STOCK PLAN
ATTACHMENT 3 TO EXERCISE NOTICE
ELECTION UNDER SECTION 83(b) OF
THE INTERNAL REVENUE CODE OF 1986
The undersigned Taxpayer hereby elects, pursuant to the provisions of
the federal income tax law noted above, to include in gross income for the
Taxpayer's current taxable year, as compensation for services, the excess,
if any, of the fair market value of the property described below at the
time of transfer over the amount paid for such property.
1. Taxpayer's Name:
Taxpayer's Address:
Social Security Number:
2. The property with respect to which the election is made is described
as follows: ___________ shares of Common Stock of 3DFX INTERACTIVE,
INC., a California corporation (the "Company"), which is Taxpayer's
employer or the corporation for whom the Taxpayer has performed
services.
3. The date on which the shares were transferred was ___________, 19__,
and this election is made for calendar year 19__.
4. The shares are subject to the following restrictions:
___ The Company may repurchase all or a portion of the shares at
the Taxpayer's original purchase price under certain conditions
at the time of Taxpayer's termination of employment or
services.
___ A right of first refusal in the Company for vested shares at
fair market value upon termination of employment with the
Company.
5. The fair market value of the shares (without regard to restrictions
other than restrictions which by their terms will never lapse) was
$_________ per share at the time of transfer.
6. The amount paid for such shares was $________ per share.
7. The Taxpayer has submitted a copy of this statement to the Company as
the Taxpayer's employer or the corporation for whom the Taxpayer has
performed services.
THIS ELECTION MUST BE FILED WITH THE INTERNAL REVENUE SERVICE ("IRS") (AT
THE OFFICE WHERE THE TAXPAYER FILES ANNUAL INCOME TAX RETURNS) WITHIN 30
DAYS AFTER THE DATE OF TRANSFER OF THE PROPERTY, AND MUST ALSO BE FILED
WITH THE TAXPAYER'S INCOME TAX RETURNS FOR THE CALENDAR YEAR ABOVE STATED.
THE ELECTION CANNOT BE REVOKED WITHOUT THE CONSENT OF THE IRS.
Dated: __________, 19__
_________________________________
Taxpayer's Signature
_________________________________
Spouse's Signature (if any)
3DFX INTERACTIVE, INC.
EMPLOYEE STOCK PLAN
ATTACHMENT 3A TO EXERCISE NOTICE
ALTERNATIVE MINIMUM TAX
ELECTION UNDER SECTION 83(b) OF
THE INTERNAL REVENUE CODE OF 1986
The undersigned Taxpayer hereby elects, pursuant to the provisions of
Sections 55-56 and 83(b) of the Internal Revenue Code of 1986. as amended,
to include in alternative minimum taxable income for the Taxpayer's current
taxable year, as compensation for services, the excess, if any, of the fair
market value of the property described below at the time of transfer over
the amount paid for such property.
1. Taxpayer's Name:
Taxpayer's Address:
Social Security Number:
2. The property with respect to which the election is made is described
as follows: ___________ shares of Common Stock of 3DFX INTERACTIVE,
INC., a California corporation (the "Company"), which is Taxpayer's
employer or the corporation for whom the Taxpayer has performed
services.
3. The date on which the shares were transferred was ___________, 19__,
and this election is made for calendar year 19__.
4. The shares are subject to the following restrictions:
___ The Company may repurchase all or a portion of the shares at
the Taxpayer's original purchase price under certain conditions
at the time of Taxpayer's termination of employment or
services.
___ A right of first refusal in the Company for vested shares at
fair market value upon termination of employment with the
Company.
5. The fair market value of the shares (without regard to restrictions
other than restrictions which by their terms will never lapse) was
$_________ per share at the time of transfer.
6. The amount paid for such shares was $________ per share.
7. The Taxpayer has submitted a copy of this statement to the Company as
the Taxpayer's employer or the corporation for whom the Taxpayer has
performed services.
THIS ELECTION MUST BE FILED WITH THE INTERNAL REVENUE SERVICE ("IRS") (AT
THE OFFICE WHERE THE TAXPAYER FILES ANNUAL INCOME TAX RETURNS) WITHIN 30
DAYS AFTER THE DATE OF TRANSFER OF THE PROPERTY, AND MUST ALSO BE FILED
WITH THE TAXPAYER'S INCOME TAX RETURNS FOR THE CALENDAR YEAR ABOVE STATED.
THE ELECTION CANNOT BE REVOKED WITHOUT THE CONSENT OF THE IRS.
Dated: __________, 19__
_________________________________
Taxpayer's Signature
_________________________________
Spouse's Signature (if any)
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
May 21, 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 May 21, 1999
(the "Registration Statement") in connection with the registration under
the Securities Act of 1933, as amended, for an aggregate of
2,000,000 shares of your Common Stock under the 1995 Employee Stock Plan.
Such shares of Common Stock are referred to herein as the "Shares", and
such plan and compensation agreements are 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 3Dfx Interactive, Inc.'s Annual
Report on Form 10-K 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.
PricewaterhouseCoopers LLP
San Jose, California
May 19, 1999
