AMENDMENT
---------
Amendment dated as of the 17th day of December, 1997 by and among Xxxx
Xxxxxxx, c/o East-West Capital Associates, 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx
000, Xxx Xxxxxxx, XX 00000 ("Xxxxxxx"), and Faroudja, Inc. ("FI"), a Delaware
corporation, and its wholly-owned subsidiary, Faroudja Laboratories, Inc.
("FLI"), a California corporation, with offices at 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 (FI and FLI referred to hereinafter collectively as the
"Company").
WITNESSETH:
WHEREAS, the parties have entered into an agreement dated as of December
31, 1996 pursuant to which Xxxxxxx serves as a consultant to the Company for
the analysis and implementation of potential strategic alliances (the
"Agreement");
WHEREAS, the parties wish to modify certain provisions of the
Agreement relating to the timing of Xxxxxxx'x compensation;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises contained herein and in the Agreement, the parties hereto hereby
agree to amend the Agreement as follows:
Defined terms in this Amendment shall have the meanings ascribed to them
in the Agreement unless otherwise indicated.
The first paragraph of Section 2 of the Agreement shall be deleted and
replaced with the following:
"COMPENSATION. As compensation for the services to be rendered by
Xx. Xxxxxxx, FI shall immediately grant to Xxxxxxx Investors, LLC,
a warrant to purchase from FI, at a price of $.15 per share, up to
65,152 shares of Common Stock of FI. The warrant shall be in the
form of Exhibit A attached hereto. The actual number of shares
for which the warrant may be exercised shall be determined from
time to time by the Board of Directors of FI, based upon the
Consideration (as defined below) received by FLI as a result of
Xx. Xxxxxxx'x services. If FLI receives Consideration of
$5,000,000 or more as a result of Xx. Xxxxxxx'x services, the
Board of Directors of FI shall declare the warrant exercisable
with respect to all 65,152 shares. If FLI receives Consideration
of less than $5,000,000 for such services, the Board of Directors
may, from time to time, in its sole discretion, declare the
warrant exercisable with respect to a number of shares not greater
than the product of multiplying 65,152
1
by the fraction created by dividing the Consideration received by
FLI, by $5,000,000."
3. The form of warrant attached to this Amendment as Exhibit A, shall
replace Exhibit A to the Agreement.
4. The Agreement shall in all other respects remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the
Agreement to be executed as of the date first set forth above.
XXXX XXXXXXX FAROUDJA, INC.
/s/ Xxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxx
------------------------------ ------------------------------
Name: XXXXXXX XXXXX
----------------------------
Title: PRESIDENT, CEO
---------------------------
FAROUDJA LABORATORIES, INC.
By: /s/ Xxxxxxx Xxxxx
------------------------------
Name: XXXXXXX XXXXX
----------------------------
Title: PRESIDENT, CEO
---------------------------
2
EXHIBIT A
[FORM OF WARRANT]
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT OR
THE RULES AND REGULATIONS THEREUNDER.
WARRANT TO PURCHASE
SHARES OF
FAROUDJA, INC.
COMMON STOCK
Faroudja, Inc., a Delaware corporation (the "Company") hereby issues to
Xxxxxxx Investors, LLC (the "Holder") this warrant to purchase from the
Company, at any time or from time to time on or before the third anniversary
of the date of this warrant (or any earlier date specified by the Company in
a written notice given by the Company to the Holder), for a price per share
equal to $.15, up to 65,152 shares of common stock of the Company.
This warrant is subject to the following terms and conditions:
1. EXERCISE. The rights represented by this warrant may be exercised,
at any time or from time to time in whole or in part, by (a) the surrender of
this warrant, along with the purchase form attached as exhibit A-1 (the
"Purchase Form"), properly executed, at the address of the Company set forth
in section 8.2 (or such other address as the Company may designate by notice
in writing to the Holder at its address set forth in section 8.2) and (b) the
payment to the Company of the exercise price by check, payable to the order
of the Company, for the number of shares specified in the Purchase Form,
together with any applicable stock transfer taxes. A certificate
representing the shares so purchased and, in the event of an exercise of
fewer than all the rights represented by this warrant, a new warrant in the
form of this warrant issued in the name of the Holder or its designee(s) and
representing a new warrant to purchase a number of shares equal to the number
of shares as to which this warrant was theretofore exercisable less the
number of shares as to which this warrant shall theretofore have been
exercised, shall be delivered to the Holder or such designee(s) as promptly
as practicable, but in no event later than three business days, after this
warrant shall have been so exercised.
2. ADJUSTMENT OF THE NUMBER OF SHARES. If the Company shall (a) pay a
dividend in common stock or make a distribution in common stock, (b)
subdivide its outstanding common stock, (c) combine its outstanding common
stock into a smaller number of shares of common stock or (d) issue by
reclassification of its common stock, spin-off, split-up, recapitalization,
merger, consolidation or any similar corporate event or arrangement other
securities of the Company, the kind and number of shares of common stock
purchasable upon exercise of this warrant shall be adjusted immediately prior
to the exercise of this warrant so that the Holder shall be entitled to
receive the kind and number of shares or other securities of the Company to
which the Holder would have been entitled to receive after the happening of
any of the events described above had this warrant been exercised immediately
prior to the happening of such event or the record date with respect to such
event.
3. RESERVATION OF SHARES. From and after the date of this warrant, the
Company shall at all times reserve and keep available for issuance upon the
exercise of this warrant a number of its authorized but unissued shares of
common stock sufficient to permit the exercise in full of this warrant.
4. TRANSFER. Subject to applicable law, this warrant may be
transferred at any time, in whole or in part, to any entity, entities, person
or persons. Any transfer shall be effected by the surrender of this warrant,
along with the form of assignment attached as exhibit A-2, properly executed,
at the address of the Company set forth in section 7.2 (or such other address
as the Company may designate by notice in writing to the Holder at its
address set forth in section 7.2). Thereupon, the Company shall issue in the
name or names specified by the Holder a new warrant or warrants of like tenor
and representing a warrant or warrants to purchase in the aggregate a number
of shares equal to the number of shares to which this warrant was theretofore
exercisable less the number of shares as to which this warrant shall
theretofore have been exercised.
5. PAYMENT OF TAXES. The Company shall cause all shares of common
stock issued upon the exercise of this warrant to be validly issued, fully
paid and nonassessable and not subject to preemptive rights. The Company
shall pay all expenses in connection with, and all taxes and other
governmental charges that may be imposed with respect to, the issuance or
delivery of the shares of common stock upon exercise of this warrant, unless
such tax or charge is imposed by law upon the Holder.
6. PIGGYBACK REGISTRATION.
6.1 INCLUSION IN REGISTRATION. If at any time after the date of
this warrant until the expiration of this warrant, the Company proposes to
register any of its shares of common stock under the Securities Act of 1933
(other than in connection with a merger or pursuant to Form S-8 or S-4 or a
comparable registration statement) it will promptly give notice to the Holder
of its intention to do so. If the Holder notifies the Company within twenty
(20) days after receipt of any such notice of its desire to include any
Warrant Shares (as defined in section 6.3) in such proposed registration, the
Company shall afford the
2
Holder the opportunity to have such Warrant Shares registered under such
registration statement.
Notwithstanding anything in this section 6 to the contrary, the Company
shall have the right at any time after it shall have given any notice
pursuant to this section 6 (irrespective of whether a written request for
inclusion of any Warrant Shares shall have been made), to elect to postpone
or not to file such proposed registration statement or to withdraw the same
after filing but prior to the effective date thereof.
6.2 UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares being sold by the Company, the Company
shall not be required under this section 6 to include any Warrant Shares in
such underwriting unless the Holder accepts the terms of the underwriting as
agreed upon between the Company and the underwriters selected by it, and then
only in such quantity as will not, in the opinion of the underwriters,
jeopardize the success of the offering by the Company. If the total number
of shares, including the Warrant Shares, requested by shareholders, including
the Holder, to be included in the offering exceeds the number of shares sold
other than by the Company that the underwriters reasonably believe compatible
with the success of the offering, then the number of selling shareholders'
shares that may be included in the offering shall be apportioned pro rata
among the selling shareholders according to the total number of shares
entitled to be included in the offering owned by each selling shareholder or
in such other proportions as shall mutually be agreed to by the selling
shareholders.
6.3 DEFINITION. As used in this section 6, the term "Warrant
Shares" means shares of common stock of Faroudja issued or issuable upon the
exercise of this warrant.
7. MISCELLANEOUS.
7.1 SECURITIES ACT RESTRICTIONS. The Holder acknowledges that this
warrant may not be sold, transferred or otherwise disposed of without
registration under the Securities Act of 1933 (the "Act") or an applicable
exemption from the registration requirements of the Act and, accordingly,
this warrant and all certificates representing the common stock and any other
securities issuable upon the exercise of this warrant shall bear a legend in
the form set forth on the top of page one of this warrant.
7.2 NOTICES. All notices and other communications under this
agreement shall be in writing and may be given by any of the following
methods: (a) personal delivery; (b) facsimile transmission; (c) registered or
certified mail, postage prepaid, return receipt requested; or (d) overnight
delivery service. Notices shall be sent to the appropriate party at its, his
or her address or facsimile number given below (or at such other address or
facsimile number for that party as shall be specified by notice given under
this section 7.2):
3
if to the Holder, to it at:
Xxxxxxx Investors, LLC
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Fax: (000) 000-0000
with a copy to:
East-West Capital Associates
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Fax: (000) 000-0000
if to the Company, to it at:
Faroudja, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, CFO
Fax: (000) 000-0000
with a copy to:
Buchalter, Nemer, Fields & Younger
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
All such notices and communications shall be deemed received upon (a) actual
receipt by the addressee, (b) actual delivery to the appropriate address or
(c) in the case of a facsimile transmission, upon transmission by the sender
and issuance by the transmitting machine of a confirmation slip confirming
that the number of pages constituting the notice have been transmitted
without error. In the case of notices sent by facsimile transmission, the
sender shall contemporaneously mail a copy of the notice to the addressee at
the address provided for above. However, such mailing shall in no way alter
the time at which the facsimile notice is deemed received.
7.3 AMENDMENT. This warrant may be modified or amended or the
provisions of this warrant may be waived only with the written consent of the
Company and the Holder.
4
7.4 GOVERNING LAW. This warrant shall be governed by the law of
the state of Delaware, without regard to the provisions thereof relating to
conflicts of laws.
8. VESTING. This warrant shall be currently exercisable with respect
to that number of shares of Common Stock of the Company as the Company shall
from time to time advise the Holder in writing. The warrant is currently
exercisable with respect to 21,178 shares of Common Stock of the Company.
December 17, 1997
FAROUDJA, INC.
By:____________________________________
Xxxxxxx Xxxxx,
President and CEO
5
EXHIBIT A-1
PURCHASE FORM
[To be executed only upon exercise of warrant]
The undersigned registered owner of this warrant irrevocably exercises
this warrant for the purchase of _____________________ shares of common stock
of Faroudja, Inc. and herewith makes payment therefor, all at the price and
on the terms and conditions specified in this warrant and requests that
certificates for the shares of common stock hereby purchased be issued in the
name of and delivered to _________________________________ whose address is
_______________________________________________ and, if such shares of common
stock shall not include all of the shares of common stock issuable as
provided in this warrant, that a new warrant of like tenor and date for the
balance of the shares of common stock issuable hereunder be delivered to the
undersigned.
Dated:______________________
______________________________________
(Name of Registered Owner)
______________________________________
(Signature of Registered Owner)
______________________________________
(Street Address)
______________________________________
(City) (State) (Zip Code)
Exhibit X-0
-0-
XXXXXXX X-0
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this warrant
hereby sells, assigns and transfers to the assignee named below all of the
rights of the undersigned under this warrant with respect to the number of
shares of common stock set forth below:
No. of shares
Name and Address of Assignee Common Stock
---------------------------- -------------
and does hereby irrevocably constitute and appoint ___________________________
attorney-in-fact to register such transfer on the books of Faroudja, Inc.
maintained for the purpose, with full power of substitution in the premises.
Dated:______________________ Print Name:______________________________
Signature: ______________________________
Witness:_________________________________
Exhibit A-2
-1-
