Exhibit 4.3


 


WARRANT TO PURCHASE STOCK


 


THIS
WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF
ANY STATE AND, EXCEPT AND PURSUANT TO THE PROVISIONS OF ARTICLE 5 BELOW, MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE
OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER
OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS
EXEMPT FROM REGISTRATION.


 


	
  Company:

  	
  GameFly, Inc.

  
	
  Number
  of Shares:

  	
  37,500

  
	
  Class of
  Stock:

  	
  Series A
  Preferred

  
	
  Warrant
  Price:

  	
  $1.00
  per share

  
	
  Issue
  Date:

  	
  January 21,
  2003

  
	
  Expiration
  Date:

  	
  The
  later to occur of (A) January 21, 2013 or (B) five
  (5) years after the closing of the initial public offering of the
  common stock of GameFly, Inc. (the “IPO”) effected pursuant to a
  Registration Statement on Form S-1 (or its successor) filed under
  the Securities Act of 1933, as amended (the “1933 Act”).

  



 


THIS
WARRANT CERTIFIES THAT, for the agreed upon value of $1.00 and for other good
and valuable consideration, SILICON VALLEY BANK (“Holder”) is entitled to
purchase the number of fully paid and nonassessable shares of the class of
securities (the “Shares”) of the company (the “Company”) at the Warrant Price,
all as set forth above and as adjusted pursuant to Article 2 of this
Warrant, subject to the provisions and upon the terms and conditions set forth
in this Warrant.


 


ARTICLE
1. EXERCISE.


 


1.1        Method of Exercise. Holder may
exercise this Warrant by delivering a duly executed Notice of
Exercise in substantially the form attached as Appendix 1 to the principal
office of the Company. Unless Holder
is exercising the conversion right set forth in Article 1.2,
Holder shall also deliver to the Company
a check, wire transfer (to an account designated by the
Company), or other from of payment acceptable to the Company
for the aggregate Warrant Price for the Shares being purchased.


 


1.2        Conversion
Right. In lieu of exercising this Warrant as
specified in Article 1.1, Holder may from time
to time convert this Warrant, in whole or in part, into a number of Shares determined by dividing (a) the aggregate fair market value of the Shares or other
securities otherwise issuable upon exercise of this Warrant minus the
aggregate Warrant Price of such Shares by (b) the fair market value of one
Share. The fair market value of the Shares shall be determined pursuant to Article 1.3.


 


1.3        Fair Market
Value. If the Company’s common stock is traded in a public market and the  shares are common stock, the fair market value
of each Share shall be the closing price of a Share reported for the business day immediately before Holder delivers its Notice of
Exercise to the Company (or in
the instance where the Warrant is exercised immediately prior to the
effectiveness of the Company’s initial public offering, the “price to public”
per share price


 

















 


specified
in the final prospectus relating to such offering). If the Company’s common
stock is traded in a public market and the Shares are preferred stock, the fair
market value of a Share shall be the closing price of a share of the Company’s
common stock reported for the business day immediately before Holder delivers
its Notice of Exercise to the Company (or, in the instance where the Warrant is
exercised immediately prior to the effectiveness of the Company’s initial
public offering, the initial “price to public” per share price specified in the
final prospectus relating to such offering), in both cases, multiplied by the
number of shares of the Company’s common stock into which a Share is
convertible. If the Company’s common stock is not traded in a public market,
the Board of Directors of the Company shall determine fair market value in its
reasonable good faith judgment.


 


1.4        Delivery of
Certificate and New Warrant. Promptly after Holder exercises or converts
this Warrant and, if applicable, the Company receives payment of the aggregate
Warrant Price, the Company shall deliver to Holder certificates for the Shares
acquired and, if this Warrant has not been fully exercised or converted and has
not expired, a new Warrant representing the Shares not so acquired.


 


1.5        Replacement of
Warrants. On 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, on delivery of an indemnity agreement reasonably satisfactory in
form and amount to the Company or, in the case of mutilation, or surrender and
cancellation of this Warrant, the Company shall execute and deliver, in lieu of
this Warrant, a new warrant of like tenor.


 


1.6        Treatment of Warrant
Upon Acquisition of Company.


 


1.6.1           “Acquisition”. For the purpose
of this Warrant, “Acquisition” means any sale, license, or other disposition of
all or substantially all of the assets of the Company, or any reorganization,
consolidation, or merger of the Company where the holders of the Company’s
securities before the transaction beneficially own less than 50% of the
outstanding voting securities of the surviving entity after the transaction.


 


1.6.2           Treatment of Warrant at
Acquisition.


 


A)             Upon the written
request of the Company, Holder agrees that, in the event of an Acquisition in
which the sole consideration is cash, either (a) Holder shall exercise its
conversion or purchase right under this Warrant and such exercise will be
deemed effective immediately prior to the consummation of such Acquisition or (b) if
Holder elects not to exercise the Warrant, this Warrant will expire upon the
consummation of such Acquisition. The Company shall provide the Holder with
written notice of its request relating to the foregoing (together with such
reasonable information as the Holder may request in connection with such
contemplated Acquisition giving rise to such notice), which is to be delivered
to Holder not less than ten (10) days prior to the closing of the proposed
Acquisition.


 


B)              Upon the written request
of the Company, Holder agrees that, in the event of an Acquisition
that is an “arms length” sale of all or substantially all of the Company’s
assets (and only its assets) to a third party that is not an Affiliate (as
defined below) of the Company (a “True Asset Sale”), either (a) Holder
shall exercise its conversion or purchase right under this Warrant and such
exercise will be deemed effective immediately prior to the consummation of such
Acquisition or (b) if Holder elects not to exercise the Warrant, this
Warrant will continue until the Expiration Date if the Company continues as a
going concern following the closing of any such True Asset Sale. The Company
shall provide the Holder with written notice of its request relating to the foregoing
(together with such reasonable information as the Holder may request in
connection with such contemplated Acquisition giving rise to
such notice), which is to


 


2

















 


be
delivered to Holder not less than ten (10) days prior to the closing of
the proposed Acquisition.


 


C)          Upon the closing of
any Acquisition other than those particularly described in subsections (A) and
(B) above, the successor entity shall assume the obligations of this
Warrant, and this Warrant shall be exercisable for the
same securities, cash, and property as would be payable for the Shares issuable
upon exercise of the unexercised portion of this Warrant as if such Shares were
outstanding on the record date for the Acquisition and subsequent closing. The
Warrant Price and/or number of Shares shall be adjusted accordingly.


 


As
used herein “Affiliate” shall mean any person or
entity that owns or controls directly or indirectly ten (10) percent or
more of the stock of Company, any person or entity that
controls or is controlled by or is under common control with such persons or
entities, and each of such person’s or entity’s officers, directors, joint
venturers or partners, as applicable.


 


ARTICLE
2. ADJUSTMENTS TO THE SHARES.


 


2.1        Stock Dividends, Splits, Etc. If the Company
declares or pays a dividend on the Shares payable in common stock, or other
securities, then upon exercise of this Warrant, for each Share acquired, Holder
shall receive, without cost to Holder, the total number and kind of securities
to which Holder would have been entitled had Holder owned the Shares of record as of the date the
dividend occurred. If the Company subdivides the Shares by reclassification or
otherwise into a greater number of shares or takes any other action which increase
the amount of stock into which the Shares are convertible, the number of shares
purchasable hereunder shall be proportionately increased and the Warrant Price
shall be proportionately decreased. If the outstanding shares are combined or
consolidated, by reclassification or otherwise, into
a lesser number of shares, the Warrant Price shall be proportionately increased
and the number of Shares shall be proportionately decreased.


 


2.2        Reclassification,
Exchange, Combinations or Substitution. Upon any reclassification,
exchange, substitution, or other event that results in a change of the number
and/or class of the securities issuable upon exercise or conversion of this
Warrant, Holder shall be entitled to receive, upon exercise or conversion of
this Warrant, the number and kind of securities and property that Holder would
have received for the Shares if this Warrant had been exercised immediately before such
reclassification, exchange, substitution, or other event. Such an event shall
include any automatic conversion of the outstanding or issuable securities of
the Company of the same class or series as the Shares to common stock pursuant
to the terms of the Company’s Certificate of Incorporation upon the closing of
a registered public offering of the Company’s common stock. The Company or its
successor shall promptly issue to Holder an amendment to this Warrant setting
forth the number and kind of such new securities or other property issuable
upon exercise or conversion of this Warrant as a result of such
reclassification, exchange, substitution or other event that results in a
change of the number and/or class of securities issuable upon exercise or
conversion of this Warrant. The amendment to this Warrant shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 2 including, without limitation, adjustments
to the Warrant Price and to the number of securities or
property issuable upon exercise of the new Warrant. The provisions of this Article 2.2
shall similarly apply to successive reclassifications,
exchanges, substitutions, or other events.


 


2.3        Adjustments for Diluting Issuances. The Warrant
Price and the number of Shares issuable upon exercise of this Warrant
or, if the Shares are Preferred Stock, the number of shares of common stock
issuable upon conversion of the Shares, shall be subject to adjustment,
from time to time in the manner set forth in the Company’s Certificate of


 


3

















 


Incorporation
as if the Shares were issued and outstanding on and as of the date of any such
required adjustment. The provisions set forth for the Shares in the Company’s
Certificate of Incorporation relating to the above in effect as of the Issue
Date may not be amended, modified or waived, without the prior written consent
of Holder unless such amendment, modification or waiver affects the rights
associated with the Shares in the same manner as such amendment, modification
or waiver affects the rights associated with all other shares of the same
series and class as the Shares granted to the Holder.


 


2.4        No Impairment.
The Company shall not, by amendment of its Certificate of Incorporation or
through a reorganization, transfer of assets, consolidation, merger,
dissolution, issue, or sale of securities or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms to be
observed or performed under this Warrant by the Company, but shall at all times
in good faith assist in carrying out of all the provisions of this Article 2
and in taking all such action as may be necessary or appropriate to protect
Holder’s rights under this Article against impairment.


 


2.5        Fractional Shares.
No fractional Shares shall be issuable upon exercise or conversion of the
Warrant and the number of Shares to be issued shall be rounded down to the
nearest whole Share. If a fractional share interest arises upon any exercise or
conversion of the Warrant, the Company shall eliminate such fractional share
interest by paying Holder the amount computed by multiplying the fractional
interest by the fair market value of a full Share.


 


2.6        Certificate as to
Adjustments. Upon each adjustment of the Warrant Price, the Company shall
promptly notify Holder in writing, and, at the Company’s expense, promptly
compute such adjustment, and furnish Holder with a certificate of its Chief
Financial Officer setting forth such adjustment and the facts upon which such
adjustment is based. The Company shall, upon written request, furnish Holder a
certificate setting forth the Warrant Price in effect upon the date thereof and
the series of adjustments leading to such Warrant Price.


 


ARTICLE
3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.


 


3.1         Representations and
Warranties. The Company represents and warrants to the Holder as follows:


 


(a)           The initial Warrant
Price referenced on the first page of this Warrant is not greater than (i) the
price per share at which the Shares were last issued  in an arms- length
transaction in which at least $500,000 of the Shares were sold and (ii) the
fair market value of the Shares as of the date of this Warrant, as determined
by the Company’s Board of Directors.


 


(b)           All Shares which may
be issued upon the exercise of the purchase right represented by this Warrant,
and all securities, if any, issuable upon conversion of the Shares, shall, upon
issuance, be duly authorized, validly issued, fully paid and nonassessable, and
free of any liens and encumbrances except for restrictions on transfer provided
for herein or under applicable federal and state securities laws.


 


(c)           The Capitalization
Table dated 12/31/02,  previously provided to Holder, remains true and complete as of the Issue Date.


 


3.2        Notice of Certain
Events. If the Company proposes at any time (a) to declare any
dividend or distribution upon any of its stock, whether in cash, property,
stock, or other securities and whether or not a regular cash dividend;
(b) to offer for sale additional shares of any class or series of the Company’s
stock; (c) to effect any reclassification or recapitalization


 


4

















 


of
any of its stock; (d) to merge or consolidate with or into any other
corporation, or sell, lease, license, or convey all or substantially all of its
assets, or to liquidate, dissolve or wind up; or (e) offer holders of
registration rights the opportunity to participate in an underwritten public
offering of the company’s securities for cash, then, in connection with each
such event, the Company shall give Holder: (l) at least 10 days prior
written notice of the date on which a record will be taken for such dividend,
distribution, or subscription rights (and specifying the date on which the
holders of common stock will be entitled thereto) or the consummation date of
the matters referred to in (c) and (d) above; (2) in the case of
the matters referred to in (c) and (d) above at least 10 days prior
written notice of the date when the same will take place (and specifying the date
on which the holders of common stock
will be entitled to exchange their common stock for securities or other
property deliverable upon the occurrence of such event); and (3) in the
case of the matter referred to in (e) above, the same notice as is given
to the holders of such registration rights.


 


3.3        Registration Under Securities
Act of 1933, as amended. The Company agrees that the Shares or, if the
Shares are convertible into common stock of the Company, such common stock,
shall have certain incidental, or “Piggyback,” registration rights pursuant to
and as set forth in the Company’s Investor Rights Agreement dated
July 25, 2002. The provisions set forth therein relating to the above in
effect as of the Issue Date may not be amended,
modified or waived without the prior written consent of Holder
unless such amendment, modification or waiver affects the rights
associated with the Shares in the same manner as such amendment,
modification, or waiver affects the rights associated with all other shares of
the same series and class as the Shares granted to the Holder.


 


3.4        No Shareholder Rights. Except as
provided in this Warrant, the Holder will not have any rights as a
shareholder of the Company until the exercise of this Warrant.


 


ARTICLE
4. REPRESENTATIONS, WARRANTIES OF THE HOLDER. The Holder
represents and warrants to the Company as follows:


 


4.1        Purchase for
Own Account. This Warrant and the securities to be acquired
upon exercise of this Warrant by the Holder will be acquired for investment for
the Holder’s account, not as a nominee or agent, and not with a view to the
public resale or distribution within the meaning of the Act. Holder also represents
that the Holder has not been formed for the specific purpose of
acquiring this Warrant or the Shares.


 


4.2        Disclosure of
Information. The Holder has received or has had full
access to all the information it considers necessary or appropriate to make an
informed investment decision with respect to the acquisition of this Warrant
and its underlying securities. The Holder further has had an opportunity to ask questions and
receive answers from the Company regarding the terms and conditions of the
offering of this Warrant and its underlying securities and to obtain
additional information (to the extent the Company possessed such information or
could acquire it without unreasonable effort or expense) necessary to
verify any information furnished to the Holder or to which the Holder has
access.


 


4.3        Investment
Experience. The Holder understands that the purchase of
this Warrant and its underlying securities involves substantial
risk. The Holder has experience as an investor in securities of companies in
the development stage and acknowledges that the Holder can bear the economic risk
of such Holder’s investment in this Warrant and its underlying securities and
has such knowledge and experience in financial or business matters that the
Holder is capable of evaluating the merits and
risks of its investment in this Warrant and its underlying securities and/or has a
preexisting personal or business relationship with the
Company and certain of its officers, directors or controlling
persons of a nature and duration that enables the


 


5

















 


Holder
to be aware of the character, business acumen and financial circumstances of
such persons.


 


4.4        Accredited
Investor Status. The Holder is an “accredited investor”
within the meaning of Regulation D promulgated under the Act.


 


4.5        The Act. The Holder
understands that this Warrant and the Shares issuable upon exercise or
conversion hereof have not been registered under the Act in reliance upon a
specific exemption therefrom, which exemption depends upon, among other things,
the bona fide nature of the Holder’s investment intent as expressed herein. The
Holder understands that this Warrant and the Shares issued upon any exercise or
conversion hereof must be held indefinitely unless subsequently registered
under the 1933 Act and qualified under
applicable state securities laws, or unless exemption from such registration
and qualification are otherwise available.


 


ARTICLE
5. MISCELLANEOUS.


 


5.1        Term: This Warrant
is exercisable in whole or in part at any time and from time to time on or
before the Expiration Date.


 


5.2        Legends.   This Warrant and the Shares (and the securities
issuable, directly or indirectly, upon conversion of the Shares, if any) shall
be imprinted with a legend in substantially the following form:


 


THIS
WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE
ACT, OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AND PURSUANT TO THE
PROVISIONS OF ARTICLE 5 BELOW, MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT
AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR
TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.


 


5.3        Compliance with
Securities Laws on Transfer. This Warrant and the
Shares issuable upon exercise of this Warrant (and the securities issuable,
directly or indirectly, upon conversion of the Shares, if any) may not be
transferred or assigned in whole or in part without compliance with applicable
federal and state securities laws by the transferor and the transferee
(including, without limitation, the delivery of investment representation
letters and legal opinions reasonably satisfactory to the Company, as
reasonably requested by the Company). The Company shall not require Holder to
provide an opinion of counsel if the transfer is to Silicon Valley Bancshares
(Holder’s parent company) or any other affiliate of Holder. Additionally, the
Company shall also not require an opinion of counsel if there is no material
question as to the availability of current information as referenced in Rule 144(c),
Holder represents that it has complied with Rule 144(d) and (e) in
reasonable detail, the selling broker represents that it has complied
with Rule 144(f), and the Company is provided with a copy of Holder’s
notice of proposed sale.


 


5.4        Transfer
Procedure. Upon receipt by Holder of the executed
Warrant, Holder will transfer all of this Warrant to Silicon Valley
Bancshares, Holder’s parent company, by execution of an
Assignment substantially in the form of Appendix 2. Subject to the


 


6

















 


provisions
of Article 5.3 and upon providing Company with written notice, Silicon
Valley Bancshares and any subsequent Holder may transfer all or part of this
Warrant or the Shares issuable upon exercise of this Warrant (or the Shares
issuable directly or indirectly, upon conversion of the Shares, if any) to any
transferee, provided, however, in connection with any such transfer, Silicon
Valley Bancshares or any subsequent Holder will give the Company notice of the
portion of the Warrant being transferred with the name, address and taxpayer
identification number of the transferee and Holder will
surrender this Warrant to the Company for reissuance to the transferee(s) (and
Holder if applicable). The Company may refuse to transfer this Warrant or the
Shares to any person who directly competes with the Company, unless, in either
case, the stock of the Company is publicly traded.


 


5.5        Notices. All notices
and other communications from the Company to the Holder,
or vice versa, shall be deemed delivered and effective when given personally or
mailed by first-class registered or certified mail, postage prepaid, at such
address as may have been furnished to the Company or the Holder, as the case
may (or on the first business day after transmission by facsimile)
be, in writing by the Company or such holder from time to
time. Effective upon receipt of the fully executed Warrant and the initial
transfer described in Article 5.4 above, all notices to the Holder shall
be addressed as follows until the Company receives notice of a change of
address in connection with a transfer or otherwise:


 


Silicon
Valley Bancshares 

Attn: Treasury Department


3003
Tasman Drive, HA 200


Santa
Clara, CA 95054


Telephone:
408-654-7400


Facsimile:
408-496-2405


 


Notice
to the Company shall be addressed as follows until the Holder receives notice
of a change in address:


 


GameFly, Inc.


Attn: Jordan Posell


3000 Ocean Park Blvd., Suite 2014


Santa Monica, California 90405


Telephone: 310-664-6400


Facsimile: 310-664-6788


 


5.6        Waiver.
This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in
writing signed by the party against which enforcement of such change, waiver,
discharge or termination is sought.


 


5.7        Attorney’s Fees. In the event
of any dispute between the parties concerning the terms and provisions of this Warrant, the party
prevailing in such dispute shall be entitled to collect from the other party
all costs incurred in such dispute, including reasonable attorney’s
fees.


 


5.8        Automatic
Conversion upon Expiration. In the event that, upon the
Expiration Date, the fair market value of one Share (or other security
issuable upon the exercise hereof) as determined in accordance with
Section 1.3 above is greater than the Exercise Price in effect on
such date, then this Warrant shall automatically be deemed on
and as of such date to be converted pursuant to Section 1.2 above
as to all Shares (or such other securities) for which it shall
not previously have been exercised or converted, and the Company
shall promptly deliver a certificate representing the Shares (or
such other securities) issued upon such conversion to the Holder.


 


7

















 


5.9        Counterparts. This Warrant
may be executed in counterparts, all of which together shall constitute one and
the same agreement.


 


5.10      Governing Law. This Warrant
shall be governed by and construed in accordance with the laws of the State of
California, without giving effect to its principles regarding conflicts of law.


 


	
  “COMPANY”

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  GAMEFLY,
  INC.

  	
   

  	
  GAMEFLY,
  INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Edward Lenk

  	
   

  	
  By:

  	
  /s/
  Jordan Posell

  
	
  Name:

  	
  Edward
  Lenk

  	
   

  	
  Name:

  	
  Jordan
  Posell

  
	
   

  	
  (Print)

  	
   

  	
   

  	
  (Print)

  
	
  Title:

  	
  Chairman
  of the Board, President or

  	
   

  	
  Title:

  	
  Chief
  Financial Officer, Secretary,

  
	
   

  	
  Vice
  President

  	
   

  	
   

  	
  Assistant
  Treasurer or Assistant

  
	
   

  	
   

  	
   

  	
   

  	
  Secretary

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  “HOLDER”

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SILICON
  VALLEY BANK

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Troy V. Erickson

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Troy
  V. Erickson

  	
   

  	
   

  	
   

  
	
   

  	
  (Print)

  	
   

  	
   

  	
   

  
	
  Title:
  

  	
  V.P.

  	
   

  	
   

  	
   

  



 


8














 


APPENDIX
1


 


NOTICE OF EXERCISE


 


1.                                       Holder elects to purchase                   shares
of the Common/Series                    Preferred [strike one] Stock of GameFly, Inc. pursuant to the terms
of the attached Warrant, and tenders payment of the purchase price of the
shares in full.


 


[or]


 


1.                                       Holder elects to convert the attached Warrant into Shares/cash [strike one] in the manner specified in the Warrant. This conversion is exercised for                         of
the Shares covered by the Warrant.


 


[Strike paragraph that does
not apply.]


 


2.                                       Please issue a certificate or certificates
representing the shares in the name specified below:


 


	
   

  	
   

  	
   

  
	
   

  	
  Holders
  Name

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Address)

  	
   

  



 


3.                                       By its execution below and for the benefit of the Company, Holder hereby restates each of the representations and warranties in Article 4 of the Warrant as the date hereof.


 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Date):

  	
   

  



 


9

















 


ASSIGNMENT


 


For value
received, Silicon Valley Bank hereby sells, assigns and transfers unto:


 


Name: Silicon Valley Bancshares


Address: 3003 Tasman Drive (HA-200)


Santa Clara, CA 95054


 


TaxID: 91-1962278


 


that certain Warrant to Purchase Stock issued by GameFly, Inc.  (the “Company”), on January 21, 2003 (the “Warrant”)
together with all rights, title and interest therein.


 


 


	
   

  	
  SILICON VALLEY BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy V. Erickson

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Troy V. Erickson

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
  January 21, 2003

  	
   

  	
   

  
					



 


 


By
its execution below, and for the benefit of the Company, Silicon Valley
Bancshares makes each of the representations and warranties set forth in Article 4 of the Warrant as of the date hereof.


 


 


	
   

  	
  SILICON VALLEY BANCSHARES

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paulette
  Mehas

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Paulette Mehas

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Treasurer