THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE
SOLD, OFFERED FOR SALE OR TRANSFERRED UNLESS SUCH SALE OR TRANSFER IS IN
ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS
IS AVAILABLE WITH RESPECT THERETO.
WARRANT TO PURCHASE
SHARES OF COMMON STOCK OF
THE 3DO COMPANY
Issue Date: December 27, 2002
Warrant No. CW-11 2,000,000 Shares of Common Stock
1. Issuance. This Warrant is issued to Xxxxxxx X. Xxxxxxx, III (the
"Holder"), by The 3DO Company, a Delaware corporation (hereinafter with its
successors called the "Company") pursuant to the Note and Warrant Purchase
Agreement of even date herewith (the "Purchase Agreement"). Capitalized terms
used but not otherwise defined herein shall have the meanings ascribed to them
in the Purchase Agreement.
2. Purchase Price; Number of Shares. Subject to the exercise
restriction provided for in Section 6 hereof, this Warrant certifies that, for
value received, the Holder of this Warrant is entitled upon surrender of this
Warrant with the subscription form annexed hereto as Appendix 1 duly executed,
at the principal office of the Company, to purchase from the Company 2,000,000
fully paid and nonassessable shares of Common Stock of the Company (the "Common
Stock") at a price per share (the "Purchase Price") of $2.52, subject to
adjustment pursuant to Sections 8 and 9 below.
3. Payment of Purchase Price. The Purchase Price may be paid (i) in
cash or by certified check or wire transfer, (ii) by the cancellation, surrender
or forgiveness by the Holder to the Company of any promissory notes or other
obligations issued by the Company, with all such notes and obligations so
surrendered being credited against the Purchase Price in an amount equal to the
principal amount thereof plus accrued interest to the date of surrender, or
(iii) by any combination of the foregoing.
4. Net Issue Election. Notwithstanding any provisions herein to the
contrary, the Holder may elect to receive, without the payment by the Holder of
any additional consideration, shares of Common Stock equal to the value (as
determined below) of this Warrant by the surrender of this Warrant to the
Company, with the net issue election notice set forth in Appendix 1 annexed
hereto duly executed, at the principal office of the Company. Thereupon, the
Company shall issue to
the Holder such number of fully paid and nonassessable shares of Common Stock as
is 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 pursuant to this Section 4.
Y = the number of shares of Common Stock covered by this
Warrant or, if only a portion of the Warrant is being exercised, the
portion of the Warrant being exercised at the time the net issue
election is made pursuant to this Section 4.
A = the fair market value of one share of Common Stock,
determined as follows: (i) if at such time the Common Stock is listed
on a national securities exchange or on the over-the-counter market,
then the closing price of the Common Stock on the business day
immediately prior to the date of exercise or, if no sale of the Common
Stock was made on such day, the first business day immediately
preceding such day upon which a sale was made, or (ii) if at such time
the Common Stock is not listed on a national securities exchange or on
the over-the-counter market, then as determined in good faith by the
Board and agreed to by Holder at the time the net issue election is
made pursuant to this Section 4.
B = the Purchase Price in effect under this Warrant at the
time the net issue election is made pursuant to this Section 4.
5. Fractional Shares. No fractional shares shall be issued upon
exercise of this Warrant. The Company shall, in lieu of issuing any fractional
share, pay the holder entitled to such fraction a sum in cash equal to such
fraction multiplied by the then effective Purchase Price.
6. Exercise.
(a) Expiration Date. Holder's rights under this Warrant expire
at 5:00 p.m. Pacific Time on the fourth anniversary of the date of this Warrant
(the "Expiration Date") and shall be void thereafter.
(b) Delivery. Upon the exercise of the rights represented by
this Warrant, the Company shall use good faith efforts to issue and deliver to
the Holder a certificate or certificates for the shares of Common Stock issuable
upon exercise of this Warrant so purchased, in the name of the Holder within a
reasonable time after the rights represented by this Warrant shall have been so
exercised and in any event within twenty (20) days after receipt of the Notice
of Exercise and, unless the Warrant has been fully exercised or expired, a new
warrant representing the remaining portion of the Warrant and the underlying
Common Stock, if any, with respect to which this Warrant shall not have been
exercised shall also be issued to the Holder as soon as possible and in any
event within such twenty (20) day period.
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7. Reserved Shares; Valid Issuance. The Company covenants that it will
at all times from and after the date hereof reserve and keep available such
number of its authorized shares of Common Stock of the Company, free from all
preemptive or similar rights therein, as will be sufficient to permit the
exercise of this Warrant in full. If at any time between the date hereof and the
Expiration Date, the number of authorized but unissued shares of Common Stock
shall not be sufficient to permit exercise of this Warrant, the Company will
take such corporate action as may be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient
for such purposes. The Company further covenants that such shares as may be
issued pursuant to such exercise will, upon issuance, be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and charges
with respect to the issuance thereof.
8. Stock Splits and Dividends. If after the date hereof the Company
shall subdivide the Common Stock, by stock split or otherwise, or combine the
Common Stock, or issue additional shares of Common Stock in payment of a stock
dividend on the Common Stock, the number of shares of Common Stock issuable on
the exercise of this Warrant shall forthwith be proportionately increased in the
case of a subdivision or stock dividend, or proportionately decreased in the
case of a combination, and the Purchase Price shall forthwith be proportionately
decreased in the case of a subdivision or stock dividend, or proportionately
increased in the case of a combination.
9. Mergers and Reclassifications. If after the date hereof the Company
shall enter into any Reorganization (as hereinafter defined), then, as a
condition of such Reorganization, lawful provisions shall be made, and duly
executed documents evidencing the same from the Company or its successor shall
be delivered to the Holder, so that the Holder shall thereafter have the right
to purchase, at a total price not to exceed that payable upon the exercise of
this Warrant in full, the kind and amount of shares of stock and other
securities and property receivable upon such Reorganization by a holder of the
number of shares of Common Stock which might have been purchased by the Holder
immediately prior to such Reorganization, and in any such case appropriate
provisions shall be made with respect to the rights and interest of the Holder
to the end that the provisions hereof (including without limitation, provisions
for the adjustment of the Purchase Price and the number of shares issuable
hereunder) shall thereafter be applicable in relation to any shares of stock or
other securities and property thereafter deliverable upon exercise hereof. For
the purposes of this Section 9, the term "Reorganization" shall include without
limitation any reclassification, capital reorganization or change of the Common
Stock (other than as a result of a subdivision, combination or stock dividend
provided for in Section 8 hereof), or any consolidation of the Company with, or
merger of the Company into, another corporation or other business organization
(other than a merger in which the Company is the surviving corporation and which
does not result in any reclassification or change of the outstanding Common
Stock), or any sale or conveyance to another corporation or other business
organization of all or substantially all of the assets of the Company.
10. No Voting or Dividend Rights. 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 shareholder of the Company or any other
matters or any rights whatsoever as a shareholder of the Company prior to the
exercise of the Holder's rights to purchase shares of Common Stock as provided
for herein. No dividends or interest shall be payable or accrued in respect of
this Warrant or the interest represented hereby or the shares purchasable
hereunder until, and only to the extent that, this Warrant shall have been
exercised.
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11. Amendment. The terms of this Warrant may be amended, modified or
waived only with the written consent of the Holder.
12. Notices, Etc. Any notice, request or other communication required
or permitted hereunder shall be in writing and shall be deemed to have been duly
given (i) upon receipt if personally delivered, (ii) three (3) days after being
mailed by registered or certified mail, postage prepaid, or (iii) one day after
being sent by recognized overnight courier or by facsimile, if to Holder, at c/o
Company at 000 Xxxxxxxx Xxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000, or at such other
address or number as Holder shall have furnished to Company in writing, or if to
Company, at 000 Xxxxxxxx Xxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 or at such other
address or number as Company shall have furnished to Holder in writing.
13. Descriptive Headings and Governing Law. The descriptive headings of
the several sections and paragraphs of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant. This Warrant and all actions
arising out of or in connection with this Warrant shall be governed by and
construed in accordance with the laws of the State of California, without regard
to the conflicts of law provisions of the State of California, or of any other
state.
14. Successors and Assigns. Holder may not sell, transfer or otherwise
dispose of the Securities except in accordance with the restrictions set out in
the Purchase Agreement. The rights and obligations of Company and Holder shall
be binding upon and benefit the successors, assigns, heirs, administrators and
transferees of the parties.
15. Limitation on Number of Warrant Shares. The Company shall not be
obligated to issue any shares of Common Stock upon exercise of this Warrant if
the issuance of such shares of Common Stock would cause the Company to exceed
that number of shares of Common Stock which the Company may issue upon exercise
of this Warrant (the "Exchange Cap") without breaching the Company's
obligations, if applicable, under the rules or regulations of the Nasdaq
National Market, except that such limitation shall not apply in the event that
the Company (a) obtains the approval of its stockholders as required by the
Nasdaq National Market (or any successor rule or regulation) for issuances of
Common Stock in excess of such amount or (b) obtains a written opinion from
outside counsel to the Company that such approval is not required, which opinion
shall be reasonably satisfactory to the holder of the Warrant. If stockholder
approval is necessary prior to the exercise of this Warrant, then the Company
shall, as soon as practicable, use its best efforts to solicit such approval and
to cause the Board of Directors to recommend to the stockholders that they
approve such proposal.
Dated December 27, 2002 The 3DO Company
/s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
---------------------------
Title: Executive Vice President
--------------------------
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APPENDIX 1
SUBSCRIPTION FORM
Date: _____________
The 3DO Company
000 Xxxxxxxx Xxx
Xxxxxxx Xxxx, XX 00000
Ladies and Gentlemen:
The undersigned hereby elects:
____ to exercise the warrant issued to it by The 3DO Company (the
"Company") and dated December ____, 2002 (the "Warrant") and to
purchase ____________ shares of the Common Stock of the Company (the
"Shares") purchasable thereunder at a purchase price of _______________
($____) per Share (the "Purchase Price") pursuant to the terms of the
Warrant and the undersigned delivers the Purchase Price herewith in
full in cash or by certified check or wire transfer or as otherwise
permitted pursuant to Section 3 of the Warrant.
____ to purchase _______ shares of the Common Stock of the Company
pursuant to the terms of the net exercise provisions set forth in
Section 4 of the Warrant.
The undersigned also makes the representations set forth on Appendix 2
attached to the Warrant.
The certificate(s) for such shares shall be issued in the name of the
undersigned or as otherwise indicated below:
Very truly yours,
XXXXXXX X. XXXXXXX, III
---------------------------------
APPENDIX 2
WARRANT CERTIFICATE
THIS AGREEMENT MUST BE COMPLETED, SIGNED AND RETURNED TO THE 3DO COMPANY ALONG
WITH THE SUBSCRIPTION FORM BEFORE THE SHARES ISSUABLE UPON EXERCISE OF THE
WARRANT CERTIFICATE WILL BE ISSUED.
Date: _____________
The 3DO Company
000 Xxxxxxxx Xxx
Xxxxxxx Xxxx, XX 00000
The undersigned, _____________________________ ("Purchaser"), intends
to acquire _______ shares of the Common Stock (the "Shares") of The 3DO Company
(the "Company") from the Company pursuant to the exercise of a certain Warrant
to purchase Shares held by Purchaser. The Shares will be issued to Purchaser in
a transaction not involving a public offering and pursuant to an exemption from
registration under the Securities Act of 1933, as amended (the "1933 Act") and
applicable state securities laws. In connection with such purchase and in order
to comply with the exemptions from registration relied upon by the Company,
Purchaser represents, warrants and agrees as follows:
1. Purchaser is acquiring the Shares for its own account, to hold for
investment, and Purchaser shall not make any sale, transfer or other disposition
of the Shares in violation of the 1933 Act or the General Rules and Regulations
promulgated thereunder by the Securities and Exchange Commission (the "SEC") or
in violation of any applicable state securities law;
2. Purchaser has been advised that the Shares have not been registered
under the 1933 Act or state securities laws on the ground that this transaction
is exempt from registration, and that reliance by the Company on such exemptions
is predicated in part on Purchaser's representations set forth in this letter;
3. Purchaser has been informed that under the 1933 Act, the Shares must
be held indefinitely unless it is subsequently registered under the 1933 Act or
unless an exemption from such registration (such as Rule 144) is available with
respect to any proposed transfer or disposition by Purchaser of the Shares;
4. The Company may refuse to permit Purchaser to sell, transfer or
dispose of the Shares (except as permitted under Rule 144) unless there is in
effect a registration statement under the 1933 Act and any applicable state
securities laws covering such transfer, or unless Purchaser furnishes an opinion
of counsel reasonably satisfactory to counsel for the Company, to the effect
that such registration is not required;
5. Purchaser has invested in securities of companies in the development
stage and acknowledges that it is able to fend for itself, can bear the economic
risk of its investment, and has such knowledge and experience in financial or
business matters that it is capable of evaluating the
merits and risks of the investment in the Shares. Purchaser represents and
warrants that it is an "accredited investor" within the meaning of Rule 501 of
Regulation D of the 1933 Act.
Purchaser also understands and agrees that there will be placed on the
certificate(s) for the Shares, or any substitutions therefor, legends stating in
substance:
"These securities have not been registered under the Securities Act of
1933, as amended (the "Act"), or any applicable state securities laws,
and may not be sold, offered for sale or transferred unless such sale
or transfer is in accordance with the registration requirements of such
Act and applicable laws or an exemption from the registration
requirements of such Act and applicable laws is available with respect
thereto."
Any legend required pursuant to applicable state securities laws.
Purchaser has carefully read this letter and has discussed its
requirements and other applicable limitations upon Purchaser's resale of the
Shares with Purchaser's counsel.
Very truly yours,
XXXXXXX X. XXXXXXX, III
------------------------------------
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