<PAGE>
As filed with the Securities and Exchange Commission on September 26, 1997
Registration No. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
TRUEVISION, INC.
(Exact name of registrant as specified in its charter)
---------------------
DELAWARE 77-0161747
(State of Incorporation) (I.R.S. Employer Identification No.)
---------------------
2500 WALSH AVENUE
SANTA CLARA, CA 95051
(408) 562-4200
(Address and telephone number of principal executive offices)
---------------------
COMPENSATORY WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
(Full title of the plan)
R. John Curson
Senior Vice President, Chief Financial Officer and Secretary
Truevision, Inc.
2500 Walsh Avenue
Santa Clara, CA 95051
(408) 562-4000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------
Copy to:
Lee F. Benton, Esq.
Julia L. Davidson, Esq.
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
(650) 843-5000
---------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
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- --------------------------------------------------------------------------------
-------------------------------------------------------------------------
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PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES OFFERING AGGREGATE AMOUNT OF
TO BE AMOUNT TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED SHARE (1) PRICE (1) FEE
------------------------------------------------------------------------
Warrant and
Common Stock
(par value
$.001) 400,000 $3.1250 $1,250,000 $378.79
------------------------------------------------------------------------
------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h)(1). The price per share
and aggregate offering price are based upon the average of the high and low
sales price of the Registrant's Common Stock as reported on the Nasdaq
National Market on September 23, 1997, in accordance with Rule 457(c) under
the Securities Act of 1933, as amended.
Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
ii
<PAGE>
PART II
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Truevision, Inc. (the "Registrant") with
the Securities and Exchange Commission (the "Commission") are incorporated by
reference into this Registration Statement:
a. The Registrant's annual report on Form 10-K for the fiscal year ended
June 29, 1997 filed pursuant to Sections 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
b. The Registrant's Proxy Statement for the Annual Meeting of
Shareholders held on October 24, 1996.
c. The description of the Registrant's Common Stock which is contained in
the Registration Statement on Form 8-A filed under the Exchange Act by the
Registrant with the Commission on March 26, 1990.
All reports and other 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 herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law the Registrant
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act. The Registrant's Bylaws require the Registrant to indemnify its directors
and executive officers, and permit the Registrant to indemnify its other
officers, employees and other agents, to the extent permitted by Delaware law.
The Bylaws also require the Registrant to advance litigation expenses in the
case of stockholder derivative actions or other actions, against an undertaking
by the indemnified party to repay such advances if it is ultimately determined
that the indemnified party is not entitled to indemnification.
1
<PAGE>
UNDERTAKINGS
a. The undersigned registrant hereby undertakes:
i. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(1) To include any prospectus required by section 10(a)(3) of
the Securities Act;
(2) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) (Section 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement.
(3) 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;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
ii. 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
iii. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
b. 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
c. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
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 the
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, the 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.
2
<PAGE>
EXHIBITS
EXHIBIT
NUMBER
- ------
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature pages
99.1 Compensatory Warrant for the Purchase of Shares of Common Stock
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Santa Clara, County of Santa Clara, State of
California, on September 24, 1997.
TRUEVISION, INC.
By: /s/ Louis J. Doctor
---------------------------------------
Louis J. Doctor
President and Chief Executive Officer
4
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Louis J. Doctor and R. John Curson, and
each of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully 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/ Walter W. Bregman Chairman of the Board September 24, 1997
---------------------------
Walter W. Bregman
/s/ Louis J. Doctor President, Chief September 24, 1997
--------------------------- Executive Officer
Louis J. Doctor and Director
(PRINCIPAL EXECUTIVE
OFFICER)
/s/ R. John Curson Senior Vice President, September 24, 1997
--------------------------- Chief Financial Officer
R. John Curson and Secretary
(PRINCIPAL FINANCIAL
OFFICER)
/s/ Harvey Chesler Controller September 24, 1997
--------------------------- (PRINCIPAL ACCOUNTING
Harvey Chesler OFFICER)
/s/ Kieth E. Sorenson Director September 24, 1997
---------------------------
Kieth E. Sorenson
Director September __, 1997
---------------------------
Conrad J. Wredberg
/s/ William H. McAleer Director September 24, 1997
---------------------------
William H. McAleer
5
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION SEQUENTIAL PAGE NUMBER
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Cooley Godward LLP is
contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on
the signature pages
99.1 Compensatory Warrant for the Purchase
of Shares of Common Stock
6
<PAGE>
EXHIBIT 5.1
LEE F. BENTON
DIRECT: (650) 843-5017
INTERNET: [email protected]
September 24, 1997
Truevision, Inc.
2500 Walsh Avenue
Santa Clara, CA 95051
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Truevision, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of 400,000 shares of the Company's
common stock, $.001 par value (the "Common Stock"), pursuant to a
compensatory warrant issued to Louis J. Doctor, the Company's Chief Executive
Officer (the "Warrant").
In connection with this opinion, we have examined the Registration Statement,
your Certificate of Incorporation and Bylaws and such other documents, records,
certificates, memoranda and other instruments as we deem necessary as a basis
for this opinion. We have assumed the genuineness and authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as copies thereof, and the due execution and delivery
of all documents where due execution and delivery are a prerequisite to the
effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the shares of Common Stock, when sold and issued in accordance with the
Warrant, the Registration Statement and the related Prospectus, will be
validly issued, fully paid, and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
By: /s/ Lee F. Benton
-------------------
Lee F. Benton
<PAGE>
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 August 12, 1997 which appears in
the Annual Report of Truevision, Inc. on Form 10-K for the year ended June
28, 1997.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
San Jose, California
September 22, 1997
<PAGE>
Exhibit 99.1
TRUEVISION, INC.
COMPENSATORY WARRANT FOR THE
PURCHASE OF SHARES OF COMMON STOCK
No. CW-1 November 10, 1994
TRUEVISION, INC., a Delaware corporation (the "COMPANY"), hereby certifies
that, for value received, LOUIS J. DOCTOR (the "HOLDER"), is entitled, on the
terms set forth below, to purchase from the Company, on or before the Expiration
Time (as defined in Section 14 below) four hundred thousand (400,000) shares of
Common Stock of the Company at a price of Two Dollars and Seventy-Five Cents
($2.75) per share, subject to adjustment as provided below (the "EXERCISE
PRICE"). This warrant is part of the compensation paid by the Company to the
Holder in consideration for his services as President and Chief Executive
Officer of the Company and is intended to comply with the requirements for
registration under the Securities Act of 1933, as amended, on a Form S-8
Registration Statement.
1. EXERCISE OF WARRANT.
1.1 GENERAL. On January 1, 1995, one hundred thousand (100,000) of
the shares subject to this Warrant shall become exercisable. The remaining
three hundred thousand (300,000) shares subject to this Warrant shall become
exercisable at the rate of 6,666.67 per month. In addition, upon a Change of
Control (as defined below) of the Company all shares subject to this Warrant
shall become exercisable. "Change of Control" means the occurrence of any of
the following events: (a) any "person" (as such term is used in Section 13(d)
and 14(d) of the Securities and Exchange Act of 1934, as amended (the "Exchange
Act")), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) directly or indirectly, of securities of the Company representing
thirty-five percent (35%) or more of the total voting power represented by the
Company's then outstanding voting securities; or (b) a change in the composition
of the Board of Directors of the Company occurring within a two-year period, as
a result of which fewer than a majority of the directors are Incumbent Directors
(as defined below); or (c) a merger or consolidation of the Company with any
other corporation, other than a merger or consolidation which would result in
the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least fifty percent (50%) of
the total voting power represented by the voting securities of the Company or
such surviving entity outstanding immediately after such a merger or
consolidation; or (d) a complete liquidation of the Company; or (e) an agreement
by the Company for the sale or disposition by the Company of all or
substantially all of the Company's assets. "Incumbent Directors" shall mean
directors who are either (i) directors of the Company as of the date hereof, or
(ii) elected, or nominated for election, to the Board of Directors of the
Company with the affirmative votes of at least a majority of the Incumbent
Directors at the time of such election or nomination (but shall not include an
individual not previously a director whose election or nomination is in
connection with an actual or threatened proxy contest to the election of
directors to the Company). All shares subject to this Warrant must be exercised
prior to the Expiration Time (as defined in Section 14 below). The Holder may
exercise any shares then exercisable by surrendering this Warrant to the Company
at its principal office, with a duly executed Subscription Form (in
substantially the form attached hereto), together with payment of the sum
obtained by multiplying the number of shares of Common Stock to be purchased by
<PAGE>
the Exercise Price then in effect. Promptly after such exercise, the Company
shall issue and deliver to or upon the order of the Holder a certificate or
certificates for the number of shares of Common Stock issuable upon such
exercise, and the Company will pay all issue or transfer taxes in connection
with the issue thereof. To the extent permitted by law, this Warrant shall be
deemed to have been exercised immediately prior to the close of business on the
date of its surrender for exercise as provided herein, even if the Company's
stock transfer books are at that time closed, and the Holder shall be treated
for all purposes as the holder of record of the Common Stock to be issued upon
such exercise as of the close of business on such date. Upon any partial
exercise, the Company will issue to or upon the order of the Holder a new
Warrant for the number of shares of Common Stock as to which this Warrant has
not been exercised.
1.2 NET ISSUE EXERCISE. Notwithstanding any provisions herein to the
contrary, if the fair market value of one share of the Common Stock subject to
this Warrant is greater than the Purchase Price (at the date of calculation as
set forth below), in lieu of exercising this Warrant for cash, the Holder may
elect to receive shares equal to the value (as determined below) of this Warrant
(or the portion thereof being canceled) by surrender of this Warrant at the
principal office of the Company together with the properly endorsed Form of
Subscription and notice of such election in which event the Company shall issue
to the Holder a number of shares of Common Stock computed using the following
formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Common Stock to be issued to the
Holder
Y = the number of shares of Common Stock purchasable under
the Warrant or, if only a portion of the Warrant is
being exercised, the portion of the Warrant being
canceled (at the date of such calculation)
A = the fair market value of one share of the Common Stock
(at the date of such calculation)
B = Purchase Price (as adjusted to the date of such
calculation)
For purposes of the above calculation, fair market value of one share of Common
Stock shall be the current market price of the Company's Common Stock. The
"CURRENT MARKET PRICE" per share of Common Stock on any date is the Quoted Price
of the Common Stock on the last trading day prior to the exercise date. The
"QUOTED PRICE" of the Common Stock is the last reported sales price of the
Common Stock as reported on the Nasdaq National Market ("NMS"), or the primary
national securities exchange on which the Common Stock is then quoted; PROVIDED,
HOWEVER, that if the Common Stock is neither traded on the NMS nor on a national
securities exchange, the price referred to above shall be the price reflected on
Nasdaq, or if the Common Stock is not then traded on Nasdaq, the price reflected
in the over-the counter market as reported by the National Quotation Bureau,
Inc. or any organization performing a similar function.
2. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. The
Exercise Price and the number of shares of Common Stock subject to this Warrant
shall be subject to adjustment from time to time as follows:
<PAGE>
2.1 ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. If at any time the
Company:
a. pays a dividend or makes a distribution on its Common Stock
in shares of its Common Stock;
b. subdivides its outstanding shares of Common Stock into a
greater number of shares;
c. combines its outstanding shares of Common Stock into a
smaller number of shares;
d. makes a distribution on its Common Stock in shares of its
capital stock other than Common Stock; or
e. issues by reclassification of its Common Stock any shares of
its capital stock;
then the Exercise Price in effect immediately prior to such action shall be
adjusted so that the Holder may receive upon exercise of the Warrant and payment
of the same aggregate consideration the number of shares of capital stock of the
Company which the Holder would have owned immediately following such action if
the Holder had exercised the Warrant immediately prior to such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
2.2 RECLASSIFICATION, REORGANIZATION, CONSOLIDATION OR MERGER. In
the event of any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the Company (other than a
reclassification, subdivision or combination of the outstanding Common Stock and
other than a change in the par value of the Common Stock) or in the event of any
consolidation or merger of the Company with or into another corporation (other
than a merger in which the Company is the continuing corporation and that does
not result in any reclassification, capital reorganization or other change of
outstanding shares of Common Stock issuable upon exercise of this Warrant) or in
the event of any sale, lease, transfer or conveyance to another corporation of
the property and assets of the Company as an entirety or substantially as an
entirety, the Company shall cause effective provisions to be made so that the
Holder shall have the right thereafter, by exercising this Warrant, to purchase
the kind and amount of shares of stock and other securities and property
(including cash) receivable upon such reclassification, capital reorganization
and other change, consolidation, merger, sale, lease, transfer or conveyance by
a holder of the number of shares of Common Stock that might have been received
upon exercise of this Warrant immediately prior to such reclassification,
capital reorganization, change, consolidation, merger, sale, lease, transfer or
conveyance. Any such provision shall include provisions for adjustments in
respect of such shares of stock and other securities and property that shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Warrant. The foregoing provisions of this Section 2.2 shall similarly
apply to successive reclassifications, capital reorganizations and changes of
shares of Common Stock and to successive consolidations, mergers, sales, leases,
transfers or conveyances. In the event that in connection with any such capital
reorganization, or reclassification, change, consolidation, merger, sale, lease,
transfer or conveyance, additional shares of Common Stock shall be issued in
exchange, conversion, substitution or payment, in whole or in part, for, or of,
a security of the Company other than Common Stock, any such issue shall be
treated as an issue of Common Stock
<PAGE>
covered by the provisions of Section 2.1 above.
2.3 MINIMAL ADJUSTMENTS. No adjustment in the Exercise Price and/or
the number of shares of Common Stock subject to this Warrant need be made if
such adjustment would result in a change in the Exercise Price of less than One-
Tenth of One Cent ($.001) (the "ADJUSTMENT THRESHOLD AMOUNT") or a change in the
number of subject shares of less than one (1) share. Any adjustment which is
less than the Adjustment Threshold Amount and not made shall be carried forward
and shall be made, together with any subsequent adjustments, at the time when
(a) the aggregate amount of all such adjustments is equal to at least the
Adjustment Threshold Amount or (b) the Warrant is exercised.
2.4 DEFERRAL OF ISSUANCE OR PAYMENT. In any case in which an event
covered by this Section 2 shall require that an adjustment in the Exercise Price
be made effective as of a record date, the Company may elect to defer until the
occurrence of such event (i) issuing to the Holder, if this Warrant is exercised
after such record date, the shares of Common Stock and other capital stock of
the Company, if any, issuable upon such exercise over and above the shares of
Common Stock or other capital stock of the Company, if any, issuable upon such
exercise on the basis of the Exercise Price in effect prior to such adjustment,
and (ii) paying to the Holder by check any amount in lieu of the issuance of
fractional shares pursuant to Section 5.
2.5 WHEN NO ADJUSTMENT REQUIRED. No adjustment need be made for a
change in the par value or no par value of the Common Stock. To the extent the
Warrants become exercisable into cash, no adjustment need be made thereafter as
to the cash, and interest will not accrue on the cash.
2.6 CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of each
adjustment or readjustment of the Exercise Price pursuant to this Section 2, the
Company, at its expense, shall promptly compute such adjustment or readjustment
in accordance with the terms hereof and prepare and furnish to the Holder a
certificate setting forth such adjustment or readjustment and showing the facts
upon which such adjustment or readjustment is based. The Company shall, upon
written request at any time of the Holder, furnish or cause to be furnished to
the Holder a like certificate setting forth (a) such adjustments and
readjustments, (b) the then effective Exercise Price and number of shares of
Common Stock subject to the Warrant, and (c) the then effective amount of
securities (other than Common Stock) and other property, if any, which would be
received upon exercise of the Warrant.
3. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in this Warrant.
Nothing contained in this Warrant shall be construed as conferring upon the
Holder hereof the right to vote or to consent or to receive notice as a
stockholder of the Company on any matters or with respect to any rights
whatsoever as a stockholder of the Company. No dividends or interest shall be
payable or accrued in respect of this Warrant or the interest represented hereby
or the shares of Common Stock purchasable hereunder until, and only to the
extent that, this Warrant shall have been exercised in accordance with its
terms.
4. NO IMPAIRMENT. The Company will not, by any voluntary action, avoid
or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder against dilution or
other impairment.
5. NO FRACTIONAL SHARES. No fractional share shall be issued upon
exercise of this Warrant. The Company shall, in lieu of issuing any fractional
share, pay the Holder entitled to such
<PAGE>
fraction a sum in cash equal to the current market value of the fractional
share. The current market value of a fraction of a share is determined by
multiplying the current market price of a full share by the fraction of a share,
rounded to the nearest cent.
6. RESERVATION OF STOCK ISSUABLE ON EXERCISE OF WARRANT. The Company
will at all times reserve and keep available, solely for issuance and delivery
upon the exercise of this Warrant, all such shares of Common Stock or other
shares of capital stock, from time to time issuable upon the exercise of this
Warrant. If at any time the number of authorized but unissued shares of Common
Stock shall not be sufficient to effect the exercise of this Warrant, the
Company will use its best efforts to take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such
purposes. All shares that may be issued upon exercise of the rights represented
by this Warrant and payment of the Exercise Price, all as set forth herein, will
be free from all taxes, liens and charges in respect of the issue of such shares
(other than taxes in respect of any transfer occurring contemporaneously with
such exercise and payment or otherwise specified herein). All such shares shall
be duly authorized and when issued, sold and delivered in accordance with the
terms of the Warrant for the consideration expressed herein, will be duly and
validly issued, fully paid and nonassessable, and will be free of restrictions
on transfer other than restrictions on transfer set forth in this Warrant and
applicable state and federal securities laws.
7. NOTICES OF RECORD DATE. Upon (a) any taking by the Company of a
record of the holders of any class of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend or other
distribution or (b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company, any
merger or consolidation of the Company with or into any other corporation, or
any transfer of all or substantially all the assets of the Company to any other
person, or any voluntary or involuntary dissolution, liquidation or winding up
of the Company, the Company shall mail to the Holder at least ten (10) days, or
such longer period as is required by law, prior to the record date, a notice
specifying (i) the date on which any such record is to be taken for the purpose
of such dividend or distribution and a description of such dividend or
distribution, (ii) the date on which any such reorganization, reclassification,
transfer, consolidation, merger, dissolution, liquidation or winding up is
expected to become effective, and (iii) the date, if any, that is to be fixed as
to when the holders of record of Common Stock (or other capital stock at that
time receivable upon exercise of the Warrant) shall be entitled to exchange
their shares of Common Stock (or such other stock or securities) for securities
or other property deliverable upon such reorganization, reclassification,
transfer, consolidation, merger, dissolution, liquidation or winding up.
8. TERMINATION, DISABILITY OR DEATH OF HOLDER.
8.1 TERMINATION OF STATUS AS AN EMPLOYEE. In the event of
termination of the Holder's Continuous Status as an Employee (as defined below),
the Holder may, but only within thirty (30) days (or such other period of time
as is determined by the Company's Board of Directors) after the date of such
termination (but in no event later than the Expiration Time), exercise the
Warrant to the extent that the Holder was entitled to exercise it at the date of
such termination. To the extent that the Holder was not entitled to exercise
the Warrant at the date of such termination, or if the Holder does not exercise
the Warrant (which the Holder was entitled to exercise) within the time
specified herein, the Warrant shall terminate. "Continuous Status as an
Employee" shall mean the absence of any interruption or termination of service
as an employee of the Company. Continuous Status as an Employee shall not be
considered interrupted in the case of sick leave, military leave, or any other
leave of absence approved by the Company's Board of Directors; provided that
such leave is for a period of not more than 90 days or reemployment upon the
expiration of such leave is guaranteed by contract or statute.
<PAGE>
8.2 DISABILITY OF THE HOLDER. Notwithstanding the provisions of
Section 8.1 above, in the event of termination of the Holder's Continuous Status
as an Employee as a result of the Holder's total and permanent disability (as
defined in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended),
the Holder may, but only within six (6) months (or such other period of time not
exceeding twelve (12) months as is determined by the Company's Board of
Directors) from the date of such termination (but in no event later than the
Expiration Time), exercise the Warrant to the extent the Holder was entitled to
exercise it at the date of such termination. To the extent that the Holder was
not entitled to exercise the Warrant at the date of termination, or if the
Holder does not exercise the Warrant (which the Holder was entitled to exercise)
within the time specified herein, the Warrant shall terminate.
8.3 DEATH OF THE HOLDER. In the event of the death of the Holder:
(a) during the term of the Warrant who is at the time of his
death an employee of the Company and who shall have been in Continuous
Status as an Employee since the date of issuance of the Warrant, the
Warrant may be exercised, at any time within six (6) months (or such other
period of time as is determined by the Company's Board of Directors)
following the date of death (but in no event later than the Expiration
Time), by the Holder's estate or by a person who acquired the right to
exercise the Warrant by bequest or inheritance, but only to the extent of
the right to exercise that would have accrued had the Holder continued
living and remained in Continuous Status as an Employee six (6) months (or
such other period of time as is determined by the Company's Board of
Directors) after the date of death; or
(b) within thirty (30) days (or such other period of time not
exceeding three (3) months as is determined by the Company's Board of
Directors) after the termination of the Holder's Continuous Status as an
Employee, the Warrant may be exercised, at any time within six (6) months
(or such other period of time as is determined by the Company's Board of
Directors) following the date of death (but in no event later than the
Expiration Time), by the Holder's estate or by a person who acquired the
right to exercise the Warrant by bequest or inheritance, but only to the
extent of the right to exercise that had accrued at the date of
termination.
9. EXCHANGES OF WARRANT. Upon surrender for exchange of this Warrant (in
negotiable form, if not surrendered by the Holder named on the face hereof) to
the Company at its principal office, the Company, at its expense, will issue and
deliver a new Warrant or Warrants calling in the aggregate for the same number
of shares of Common Stock, in the denomination or denominations requested, to or
on the order of such Holder upon payment by such Holder of any applicable
transfer taxes.
10. REPLACEMENT OF WARRANT. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) upon delivery of
an indemnity agreement in such reasonable amount as the Company may determine,
or (in the case of mutilation) upon surrender and cancellation hereof, the
Company, at its expense, shall issue a replacement.
11. NOTICES. All notices and other communications from the Company to the
Holder shall be mailed by overnight courier or by first-class, registered or
certified mail, postage prepaid, to the address furnished to the Company in
writing by the last Holder who has furnished an address to the Company in
writing. Notice shall be deemed given one (1) day after deposit with an
overnight courier service, three (3) days after deposit in the mails as
aforesaid or upon delivery if personally delivered.
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12. MODIFICATION; WAIVER. Neither this Warrant nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
13. HEADINGS. The headings in this Warrant are for purposes of
convenience of reference only, and shall not be deemed to constitute a part
hereof.
14. GOVERNING LAW. This Warrant shall be construed in accordance with and
governed by the laws of the State of California as applied to contracts entered
into between California residents and to be performed entirely in the State of
California.
15. EXPIRATION TIME. This Warrant will be wholly void and of no effect
after 5:00 p.m. (San Francisco time) November 9, 2004 (the "EXPIRATION TIME").
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
and delivered on the date first set forth above.
TRUEVISION, INC.
By: /s/ R. John Curson
---------------------------------------------
R. John Curson
Senior Vice President,
Chief Financial Officer and
Secretary
