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EXHIBIT 9
EXHIBIT A
TO WARRANT AGREEMENT
[FORM OF FACE OF WARRANT CERTIFICATE]
THE WARRANTS AND THE COMMON STOCK (THE "SECURITIES") HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, REGISTRATION AND SUBJECT TO COMPLIANCE WITH OTHER APPLICABLE LAWS.
THE HOLDER HEREOF, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, UNLESS PREVIOUSLY REGISTERED UNDER
THE SECURITIES ACT, ONLY (A) TO THE COMPANY; (B) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE
144 THEREUNDER (IF AVAILABLE); (C) TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A; (D) PURSUANT TO AN
OFFSHORE TRANSACTION COMPLYING WITH REGULATION S UNDER THE SECURITIES
ACT; OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
No. __ Certificate for ___ Warrants
WARRANTS TO PURCHASE COMMON STOCK OF
GT INTERACTIVE SOFTWARE CORP.
THIS CERTIFIES THAT ____________, or its registered assigns,
is the registered holder of the number of Warrants set forth above (the
"Warrants"). Each Warrant entitles the holder thereof (the "Holder"), at its
option and subject to the provisions contained herein and in the Warrant
Agreement referred to below, to purchase from GT Interactive Software Corp., a
Delaware corporation (the "Company"), one share of Common Stock, $0.01 par
value, of the Company (the "Common Stock") at the per share exercise price of
$0.01 (the "Exercise Price"), or by Cashless Exercise referred to below. This
Warrant Certificate shall terminate and become void as of the close of business
on June 29, 2004 (the "Expiration Date") or upon the exercise hereof as to all
the shares of Common Stock subject hereto. The number of shares purchasable upon
exercise of the Warrants shall be subject to adjustment from time to time as set
forth in the Warrant Agreement.
This Warrant Certificate is issued under and in accordance
with a Warrant Agreement dated as of June 29, 1999 (as amended, restated,
supplemented or otherwise modified from time to time, the "Warrant Agreement"),
among the Company and the Holders referred to therein, and is subject to the
terms and provisions contained in the Warrant Agreement. The Warrant Agreement
is hereby incorporated herein by reference and made a part hereof. Reference is
hereby made to the Warrant Agreement for a full statement of the respective
rights, limitations of rights, duties and obligations of the Company and the
Holders of the Warrants. Capitalized terms used but not defined herein shall
have the meanings ascribed thereto in the Warrant Agreement.
Subject to the terms of the Warrant Agreement, the Warrants
may be exercised in whole or in part (i) by surrender of this Warrant
Certificate with the form of election to purchase Warrant Shares attached hereto
duly executed and with the simultaneous payment of the Exercise Price in cash
(subject to adjustment) to the Company or (ii) by Cashless Exercise. Payment of
the Exercise Price in cash shall be made in cash or by certified or official
bank check payable to the order of the Company or by wire transfer of funds to
an account designated by the Company for
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such purpose. Payment by Cashless Exercise shall be made by the surrender of a
Warrant or Warrants represented by one or more Warrant Certificates and without
payment of the Exercise Price in cash, in exchange for the issuance of such
number of shares of Common Stock equal to the product of (1) the number of
shares of Common Stock for which such Warrant would otherwise then be nominally
exercised if payment of the Exercise Price were being made in cash and (2) the
Cashless Exercise Ratio.
The Warrants shall be exercisable from time to time in the
discretion of the Holder on or after June 29, 1999, provided, that in no event
shall the Warrants be exercisable after the Expiration Date.
Upon the occurrence of each of the events set forth on
Schedule 1 hereto, on the applicable date with respect to such event, the number
of Warrants shall automatically be increased by the number of additional
Warrants set forth opposite such event on Schedule 1.
In the event the Company enters into a Combination, capital
reorganization or reclassification or the spin-off by the Company of another
Person (each, a "Transaction"), each Warrant evidenced by this Warrant
Certificate will be automatically converted into the right to receive (in the
case of a Transaction other than a spin-off) or shall also be exercisable for
(in the case of a Transaction that is a spin-off) the shares of capital stock or
other securities or other property of such surviving entity upon or as the
result of such Transaction that a Holder of such Warrant would have been
entitled to receive had such Warrant been exercised immediately prior to such
Transaction; provided, that in the event that, in connection with such
Transaction, consideration to holders of Common Stock in exchange for their
shares is payable solely in cash or in the event of the dissolution, liquidation
or winding-up of the Company, the Holder hereof will be entitled to receive
distributions on an equal basis with the holders of Common Stock or other
securities issuable upon exercise of the Warrants, as if the Warrants had been
exercised immediately prior to such events, less the Exercise Price.
The Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges in connection with the transfer
or exchange of the Warrant Certificates pursuant to Section 2.4 of the Warrant
Agreement but not for any exchange or original issuance (not involving a
transfer) with respect to temporary Warrant Certificates, the exercise of the
Warrants or the Warrant Shares.
Upon any partial exercise of the Warrants, there shall be
issued to the Holder hereof a new Warrant Certificate in respect of the shares
of Common Stock as to which the Warrants shall not have been exercised. This
Warrant Certificate may be exchanged by presenting this Warrant Certificate to
the Company properly endorsed with a request to exchange this Warrant
Certificate for other Warrant Certificates evidencing an equal number of
Warrants. No fractional Warrant Shares will be issued upon the exercise of the
Warrants, but the Company shall pay an amount in cash equal to the Current
Market Value for one Warrant Share on the date the Warrant is exercised,
multiplied by such fraction, computed to the nearest whole cent.
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The Warrants do not entitle any holder hereof to any of the rights of a
stockholder of the Company. All shares of Common Stock issuable by the Company
upon the exercise of the Warrants shall, upon such issuance, be duly and validly
issued and fully paid and non-assessable.
GT INTERACTIVE SOFTWARE CORP.
By __________________________
Title:
[SEAL]
Attest: ___________________________
Secretary
DATED:
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EXHIBIT B
TO
WARRANT AGREEMENT
FORM OF ELECTION TO PURCHASE WARRANT SHARES
(to be executed only upon exercise of Warrants)
The undersigned hereby irrevocably elects to exercise [ ]
Warrants at an exercise price per Warrant (subject to adjustment) of $.01 to
acquire an equal number of shares of Common Stock of GT Interactive Software
Corp., on the terms and conditions specified in the within Warrant Certificate
and the Warrant Agreement therein referred to, surrenders this Warrant
Certificate and all right, title and interest therein to GT Interactive Software
Corp., and directs that the shares of Common Stock deliverable upon the exercise
of such Warrants be registered or placed in the name and at the address
specified below and delivered thereto.
Date: ________________, ____
__________________________________
(Signature of Owner)
__________________________________
(Xxxxxx Xxxxxxx)
__________________________________
(City) (State) (Zip Code)
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
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EXHIBIT C
TO
WARRANT AGREEMENT
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER OF WARRANTS
Re: Warrants to Purchase Common Stock (the "Warrants") of GT
Interactive Software Corp. (the "Company")
This Certificate relates to __________ Warrants held in
definitive form by _______________ (the "Transferor").
The Transferor has requested the Company by written order to
exchange or register the transfer of a Warrant or Warrants. In connection with
such request and in respect of each such Warrant, the Transferor does hereby
certify that the Transferor is familiar with the Warrant Agreement relating to
the above captioned Warrants and that the transfer of this Warrant does not
require registration under the Securities Act of 1933 (the "Securities Act"),
because(1):
- Such Warrant is being acquired for the Transferor's own account
without transfer.
- Such Warrant is being transferred to the Company.
- Such Warrant is being transferred in a transaction meeting the
requirements of Rule 144 under the Securities Act.
- Such Warrant is being transferred to a qualified institutional buyer
(as defined in Rule 144A under the Securities Act), in reliance on Rule 144A.
- Such Warrant is being transferred pursuant to an offshore transaction
in accordance with Rule 904 under the Securities Act.
- Such Warrant is being transferred pursuant to another available
exemption from the registration requirements under the Securities Act.
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The Company is entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
[INSERT NAME OF TRANSFEROR]
By_________________________
Title:
Date:
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Schedule 1
Upon the occurrence of each of the Events set forth below, the Company
shall issue to each Holder on the applicable Trigger Date additional Warrants in
the numbers set forth opposite such Event:
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Event Trigger Date Number of Additional
Warrants
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A Holder makes any Subordinated Loans pursuant to the July 30, 1999 The product of (a)
Commitment Letter. 1,500,000 multiplied by
(b) a fraction, the
numerator of which is the
amount of the Subordinated
Loans made by such Holder
to the Company pursuant to
the Commitment Letter and
the denominator of which
is the aggregate amount of
all Subordinated Loans
made by all Holders
pursuant to the Commitment
Letter, subject to any
agreement among the
Holders.
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The Company has not executed on or prior to October 31, November 1, 1999 The product of (a)
1999 an agreement relating to a recapitalization, 2,500,000 multiplied by
reorganization, merger, sale (including, without (b) a fraction, the
limitation, a sale of all or substantially all of the numerator of which is the
assets of the Company (which shall include a sale of the amount of the Subordinated
Humongous business)) or other business combination Loans made by such Holder
transaction after the consummation of which the to the Company pursuant to
stockholders of the Company prior to such transaction do the Commitment Letter and
not hold at least a majority of the voting power of the the denominator of which
surviving Person (the foregoing, "a Change of Control is the aggregate amount of
Transaction"). all Subordinated Loans
made by all Holders
pursuant to the Commitment
Letter, subject to any
agreement among the
Holders.
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The Company executes on or prior to October 31, 1999 an date of termination of The product of (a)
agreement relating to a Change of Control Transaction (a Sale Agreement 2,500,000 multiplied by
"Sale Agreement"), but such agreement terminates for any (b) a fraction, the
reason after such date. numerator of which is the
amount of the Subordinated
Loans made by such Holder
to the Company pursuant to
the Commitment Letter and
the denominator of which is
the aggregate amount of all
Subordinated Loans made by
all Holders pursuant to the
Commitment Letter, subject
to any agreement among the
Holders.
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The Company has not closed the transactions contemplated February 29, 2000 The product of (a)
by the Sale Agreement on or prior to February 28, 2000 3,000,000 multiplied by
and repaid in full to the Holders the aggregate amount of (b) a fraction, the
the Subordinated Loans made by the Holders pursuant to numerator of which is the
the Commitment Letter. amount of the Subordinated
Loans made by such Holder
to the Company pursuant to
the Commitment Letter and
the denominator of which is
the aggregate amount of all
Subordinated Loans made by
all Holders pursuant to the
Commitment Letter, subject
to any agreement among the
Holders.
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On the last day of each fiscal quarter of the Company, June 30, 2000 and the The product of (a)
commencing with the fiscal quarter ending June 30, 2000 last day of each fiscal 3,000,000 multiplied by
and ending on the date that the Company repays in full quarter thereafter until (b) a fraction, the
the aggregate amount of the Subordinated Loans, if the the date of repayment of numerator of which is the
Company has not repaid in full to the Holders the the Subordinated Loans amount of the Subordinated
aggregate amount of the Subordinated Loans made by the Loans made by such Holder
Holders pursuant to the Commitment Letter during such to the Company pursuant to
quarter. the Commitment Letter and
the denominator of which is
the aggregate amount of all
Subordinated Loans made by
all Holders pursuant to the
Commitment Letter, subject
to any agreement among the
Holders.
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