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EXHIBIT 4.2
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THIS
WARRANT AND ANY OF SUCH SHARES MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT RELATING TO SUCH TRANSACTION UNDER THE
ACT AND ALL OTHER APPLICABLE SECURITIES LAWS OR PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION PROVISIONS OF THE ACT AND OTHER
APPLICABLE SECURITIES LAWS.
SERIES A
COMMON STOCK WARRANT
WARRANT TO PURCHASE SHARES OF STOCK
OF ONLINE RESOURCES & COMMUNICATIONS CORPORATION
Date of Issuance:
THIS CERTIFIES that, for value received _______________, or registered
assigns, (the "holder") is entitled to purchase, subject to the provisions of
this warrant, from Online Resources & Communications Corporation, a Delaware
corporation (the "Company"), at the price hereinafter set forth, that number of
shares of the one one hundredth cent ($0.0001) par value Common Stock of the
Company as determined in accordance with the provisions of Article VI hereof.
This warrant is hereinafter referred to as the "Warrant" and the shares of
Preferred Stock issuable pursuant to the terms hereof are hereinafter sometimes
referred to as "Warrant Shares."
ARTICLE I
CERTAIN DEFINITIONS
For all purposes of this Warrant, unless the context otherwise
requires, the following terms shall have the following respective meanings:
"Act": the Securities Act of 1933, as amended, or any similar
federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect at the time.
"Common Stock": the Company's authorized shares of Common
Stock, one one hundredth cent ($.0001) par value per share, as such
shares existed on the date of issuance of this Warrant.
"Commission": the Securities and Exchange Commission, or any
other federal agency then administering the Act.
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"Company": Online Resources & Communications Corporation, a
Delaware corporation, located at 0000 Xxxxx Xxxxxx Xxxxx, XxXxxx,
Xxxxxxxx 00000 and any other corporation assuming or required to assume
this Warrant pursuant to Article VIII.
"Person": any individual, corporation, partnership, trust,
unincorporated organization and any government, and any political
subdivision, instrumentality or agency thereof.
"Purchase Price": the purchase price for any Warrant Share
purchasable under this Warrant.
"Warrant Office": see Section 3.1.
"Warrant Shares": the shares of Common Stock purchasable by
the holder of this Warrant upon the exercise of this Warrant.
ARTICLE II
EXERCISE OF WARRANT
2.1 Method of Exercise. To exercise this Warrant in whole or in part at
anytime and from time to time, prior to its expiration as determined in Article
IX hereof, the holder hereof shall deliver to the Company, at the Warrant Office
designated pursuant to Section 3.1: (a) a written notice, in substantially the
form of the Subscription Notice attached hereto as Exhibit 2.1, of such holder's
election to exercise this Warrant, which notice shall specify the number of
shares of Common Stock to be purchased; (b) a check payable to the order of the
Company in an amount equal to the Purchase Price as set forth in Section 5.1
hereof for the number of shares of Common Stock being purchased; and (c) this
Warrant. The Company shall, as promptly as practicable and in any event within
fourteen (14) days thereafter, execute and deliver or cause to be executed and
delivered, in accordance with said notice, a certificate or certificates
representing the aggregate number of shares of Common Stock specified in said
notice. The stock certificate or certificates so delivered shall be in
denominations of shares as may be specified in said notice and shall be issued
in the name of the holder or such other name as shall be designated in said
notice. At the time of delivery of the certificate or certificates, appropriate
notation will be made on this Warrant designating the number of shares purchased
and this Warrant shall then be returned to the holder if this Warrant has been
exercised in part. The Company shall pay all expenses, taxes and other charges
payable in connection with the preparation, issuance and delivery of stock
certificates, except that, in case stock certificates shall be registered in a
name or names other than the name of the holder of this Warrant, funds
sufficient to pay all stock transfer taxes which shall be payable upon the
issuance of stock certificates shall be paid by the holder hereof at the time of
delivering the notice of exercise mentioned above or promptly upon receipt of a
written request of the Company for payment.
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2.2 Shares to be Fully Paid and Nonassessable. All shares of Common
Stock issued upon the exercise of this Warrant shall be validly issued, fully
paid and nonassessable.
2.3 No Fractional Shares to be Issued. The Company shall not be
required upon any exercise of this Warrant to issue a certificate representing
any fraction of a share of Common Stock.
2.4 Legend on Warrant Shares. Each certificate for shares initially
issued upon exercise of this Warrant, unless at the time of exercise such shares
are registered under the Act, shall bear a legend substantially similar to the
following:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or the securities laws of any state. They may not be
sold, transferred, assigned, pledged, hypothecated,
encumbered, or otherwise disposed of except pursuant to an
effective registration statement relating to such transaction
under the Act and all other applicable securities laws or
pursuant to an exemption from the registration provisions of
the Act and other applicable securities laws.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution pursuant to a registration statement under the Act of
the securities represented thereby) shall also bear a legend substantially
similar to the foregoing, unless, in the opinion of counsel to the Company, the
securities represented thereby need no longer be subject to the restrictions on
transferability. The provisions of Article IV shall be binding upon all
subsequent holders of this Warrant.
2.5 Acknowledgment of Continuing Obligation. The Company will, at the
time of any exercise of this Warrant in whole or in part, upon request of the
holder hereof, acknowledge in writing its continuing obligation to such holder
in respect of any rights to which the holder shall continue to be entitled after
exercise in accordance with this Warrant; provided, however, that the failure of
the holder to make any such request shall not affect the continuing obligation
of the Company to the holder in respect of such rights.
ARTICLE III
WARRANT OFFICE; TRANSFER, DIVISION OR COMBINATION OF WARRANTS
3.1 Warrant Office. The Company shall maintain an office for certain
purposes specified herein (the "Warrant Office"), which office shall initially
be the Company's location set forth in Article I, and may subsequently be such
other office of the Company or of any transfer agent of the Common Stock in the
continental United States as to which written notice has previously been given
to all holders of Warrants.
3.2 Ownership of Warrant. The Company may deem and treat the Person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all
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purposes and shall not be affected by any notice to the contrary, until
presentation of this Warrant for registration of transfer as provided in this
Article III.
3.3 Transfer of Warrant. The Company agrees to maintain at the Warrant
Office books for the registration of permitted transfers of this Warrant.
Subject to the provisions of Article IV, this Warrant and all rights hereunder
are transferable, in whole or in part, on the books at that office, upon
surrender of this Warrant at that office, together with a written assignment of
this Warrant duly executed by the holder hereof or his duly authorized agent or
attorney and funds sufficient to pay any transfer taxes payable upon the making
of the transfer. Subject to Article IV, upon surrender and payment, the Company
shall execute and deliver a new Warrant in the name of the assignee, note
thereon the number of Warrant Shares theretofore purchased under this Warrant,
and this Warrant shall promptly be cancelled and a notation of that cancellation
made on the books of the Warrant Office. A Warrant may be exercised by a new
holder for the purchase of shares of Preferred Stock without having a new
warrant issued.
3.4 Division or Combination of Warrants. This Warrant may not be
divided or combined with any other Warrant or warrants.
3.5 Expenses of Delivery of Warrants. The Company shall pay all
expenses, taxes (other than transfer taxes), and other charges payable in
connection with the preparation, issuance and delivery of new Warrants
hereunder.
ARTICLE IV
RESTRICTIONS ON TRANSFER
4.1 Restrictions on Transfer. Notwithstanding any provisions contained
in this Warrant to the contrary, this Warrant shall not be exercisable or
transferable except upon the conditions specified in this Article IV, which
conditions are intended, among other things, to insure compliance with the
provisions of the Act in respect of the exercise or transfer of the Warrant. The
holder of this Warrant, by acceptance hereof, agrees that it will not transfer
this Warrant prior to delivery to the Company of any required opinion of the
holder's counsel (as the opinion and counsel are described in Section 4.2).
4.2 Opinion of Counsel. In connection with any transfer of this
Warrant, the following provisions shall apply:
(a) If, in the opinion of counsel acceptable to the Company, a
proposed transfer of this Warrant may be effected without registration of this
Warrant under the Act, the holder of this Warrant shall be entitled to transfer
this Warrant in accordance with the proposed method of disposition; provided,
however, that if the method of disposition would, in the opinion of such
counsel, require that the Company take any action or execute and file with the
Commission or deliver to the holder or any other person any form or document in
order to establish the entitlement of the holder to take advantage of such
method of disposition, the Company agrees, at the cost of the holder, to
promptly take any necessary action or execute and file or deliver any necessary
form or document. Notwithstanding the foregoing, in no event will the Company be
obligated to effect a registration under the Act
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so as to permit the proposed transfer of this Warrant nor take any action which
will result in more than one transfer of this Warrant within each calendar year.
(b) If, in the opinion of such counsel, the proposed transfer
of this Warrant may not be effected without registration of this Warrant under
the Act, the holder of this Warrant shall not be entitled to transfer this
Warrant until registration is effective.
ARTICLE V
PURCHASE PRICE
5.1 Determination of Purchase Price. The Purchase Price for any Warrant
Share purchasable hereunder shall be equal to $2.50 per share; provided,
however, if the Company shall divide its outstanding shares of Common Stock by
stock split, stock dividend or otherwise, the Purchase Price shall
proportionately decrease and if the Company shall combine its outstanding shares
of Common Stock by stock combination, reverse split or otherwise, the Purchase
Price shall proportionately increase.
5.2 Notice to Holder. Upon request, the Company will provide the holder
hereof with written notice of the current Purchase Price existing under this
Warrant.
ARTICLE VI
NUMBER OF WARRANT SHARES
The initial number of Warrant Shares issuable hereunder shall be______;
provided, however, if the Company shall divide its outstanding shares of Common
Stock by stock split, stock dividend or otherwise, the number of Warrant Shares
then issuable hereunder shall proportionately increase and if the Company shall
combine its outstanding shares of Common Stock by stock combination, reverse
split or otherwise, the number of Warrant Shares then issuable hereunder shall
proportionately decrease.
ARTICLE VII
RECLASSIFICATION, REORGANIZATION OR MERGER
In case of any reclassification, capital reorganization or other change
of outstanding shares of Common Stock of the Company, or in case of any
consolidation or merger of the Company with or into another corporation (other
than a merger with a subsidiary in which merger the Company is the continuing
corporation or which does not result in any reclassification, capital
reorganization or other change of outstanding shares of Common Stock), the
Company shall cause effective provision to be made so that the holder hereof
shall have the right thereafter by exercising this Warrant to purchase the kind
and amount of shares of stock and other securities and property receivable upon
such reclassification, capital reorganization or other change, consolidation or
merger, by a holder of the number of shares of Common Stock which might have
been purchased upon exercise of this Warrant immediately prior to such
reclassification, change, consolidation or merger. Any such provision shall
include provision for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments, herein provided, of the Purchase Price and the
number of Warrant Shares purchasable and receivable upon the exercise of this
Warrant. The foregoing provisions of this Article VII shall similarly apply to
successive reclassification, capital reorganizations and changes of shares of
Common Stock and to successive consolidations and mergers.
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ARTICLE VIII
DISTRIBUTIONS, LIQUIDATION OR DISSOLUTION
8.1 Certain Distributions. In case the Company shall, at any time,
prior to the Expiration Date set forth in Article IX hereof, make any
distribution of its assets to holders of its capital stock as a partial
liquidation distribution or by way of return of capital, other than as a
dividend payable out of earnings or any surplus legally available for dividends
under the laws of the State of Delaware, then the holder, upon the exercise of
this Warrant prior to any such distribution but after the date of record for the
determination of those holders of capital stock entitled to such distribution of
assets, shall be entitled to receive, in addition to the shares of Common Stock
issuable on such exercise, upon such distribution the amount of such assets (or
at the option of the Company a sum equal to the value thereof at the time of
such distribution to holders of capital stock as such value is determined by the
Board of Directors of the Company in good faith), which would have been payable
to the holder had it been the holder of record of such shares of capital stock
on the record date for the determination of those holders of capital stock
entitled to such distribution.
8.2 Dissolution or Liquidation. In case the Company shall, at any time
prior to the Expiration Date set forth in Article IX hereof, dissolve, liquidate
or wind up its affairs, the holder shall be entitled, upon the exercise of this
Warrant and prior to any such distribution in dissolution of liquidation, to
receive on such exercise, in lieu of the shares of Common Stock which the holder
would have been entitled to receive, the same kind and amount of assets as would
have been distributed or paid to the holder upon any such dissolution,
liquidation or winding up, with respect to such shares of Common Stock had the
holder been the holder of record of such shares of Common Stock on the record
date for the determination of those holders of Common Stock entitled to receive
any such liquidation distribution.
ARTICLE IX
EXPIRATION
This Warrant shall terminate at the earliest of (i) 5:00 p.m. Eastern
time on Xxxxx 00, 0000, (xx) the effective date of any merger or consolidation
of the Company in a transaction in which the shares issued and issuable to
stockholders of the Company, including those persons who are entitled to become
stockholders upon conversion and exercise of any securities of the Company,
represent less than fifty percent of the total shares issued and issuable by the
surviving corporation or its ultimate parent corporation in such merger or
consolidation or (iii) the date upon which the Company transfers substantially
all of its assets incidental to sale or reorganization of the Company. The
Company shall give, by first class mail, postage prepaid, addressed to the
holder, at the address of the holder as shown on the books of the Company at
least twenty (20) days prior written notice of (i) the date on which the books
of the Company shall close for determining rights to vote in respect of any
merger, consolidation or transfer of assets which would result in the expiration
of this Warrant and (ii) in reference to a merger, consolidation, or transfer of
assets resulting in expiration of this Warrant, the date on which the holders of
Common Stock shall be entitled to exchange their shares for securities or
property resulting from such merger, consolidation or transfer of assets.
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ARTICLE X
CERTAIN COVENANTS OF THE COMPANY
The Company covenants and agrees that it will reserve and set apart and
have at all times, free from pre-emptive rights, a number of shares of Common
Stock or other securities or property deliverable upon the exercise of this
Warrant sufficient to enable it at any time to fulfill all its obligations
hereunder.
ARTICLE XI
MISCELLANEOUS
11.1 Entire Agreement. This Warrant contains the entire agreement
between the holder hereof and the Company with respect to the purchase of the
Warrant Shares and supersedes all prior arrangements or understandings with
respect thereto.
11.2 Waiver and Amendment. This Warrant is one of several Series A
Common Stock Warrants. Any term or provision of this Warrant may be waived at
any time and any term or provision of this Warrant may be amended or
supplemented at any time by agreement of the holders of those Series A Common
Stock Warrants representing more than fifty percent (50%) of all Warrant Shares
then issuable upon exercise of all outstanding Series A Common Stock Warrants
and the Company, except that any waiver of any term or condition, or any
amendment or supplementation, of this Warrant must be in writing and except that
no change in the number of shares issuable upon exercise, the rights in
liquidation or distribution, the purchase price upon exercise and the provisions
of this Section 11.2 shall be effective without the written consent of each
Warrant holder affected thereby. A waiver of any breach or failure to enforce
any of the terms or conditions of this Warrant shall not in any way affect,
limit or waive a party's rights hereunder at any time to enforce strict
compliance thereafter with any term or condition of this Warrant.
11.3 Illegality. In the event that any one or more of the provisions
contained in this Warrant shall be determined to be invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in any other respect and the remaining
provisions of this Warrant shall not, at the election of the party for whom the
benefit of the provision exists, be in any way impaired.
11.4 Filing of Warrant. A copy of this Warrant shall be filed in the
records of the Company.
11.5 Notice. Any notice or other document required or permitted to be
given or delivered to the holder hereof shall be delivered, including by a
nationally recognized overnight courier service, or sent by certified or
registered mail, to each such holder at the last address shown on the books of
the Company maintained at the Warrant Office for the registration of, and the
registration of transfer of, the Warrant or at any more recent address of which
any holder hereof shall have notified the Company in writing. Any notice or
other document required or permitted to be given or delivered to the Company,
shall be delivered, including by a nationally recognized overnight courier
service, at, or sent by certified or
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registered mail to, the Warrant Office, attention: President, or such other
address within the United States of America as shall have been furnished by the
Company to the holder hereof.
11.6 Limitation of Liability; Not Stockholders. No provision of this
Warrant shall be construed as conferring upon the holder hereof the right to
vote, consent, receive dividends or receive notice other than as herein
expressly provided in respect of meetings of stockholders for the election of
directors of the Company or any other matter whatsoever as a stockholder of the
Company. No provision hereof, in the absence of affirmative action by the holder
hereof to purchase Warrant Shares, and no enumeration herein of the rights or
privileges of the holder hereof, shall give rise to any liability of such holder
for the purchase price of any Warrant Shares or as a stockholder of the Company,
whether such liability is asserted by the Company or by creditors of the
Company.
11.7 Loss, Destruction, Etc. of Warrant. Upon receipt of evidence
satisfactory to the Company of the loss, theft, mutilation or destruction of the
Warrant, and in the case of any such loss, theft or destruction, upon delivery
of a bond of indemnity in such form and amount as shall be reasonably
satisfactory to the Company, or in the event of such mutilation, upon surrender
and cancellation of the Warrant, the Company will make and deliver a new
Warrant, of like tenor, in lieu of such lost, stolen, destroyed or mutilated
Warrant. Any Warrant issued under the provisions of this Section 11.7 in lieu of
any Warrant alleged to be lost, destroyed or stolen, or in lieu of any mutilated
Warrant, shall constitute an original contractual obligation on the part of the
Company.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its name by its Chairman and CEO and its corporate seal to be impressed hereon
and attested by its Secretary.
THE COMPANY:
ONLINE RESOURCES & COMMUNICATIONS
CORPORATION
By:
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, Chairman and CEO
Attest:
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, Secretary
[Corporate Seal]
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EXHIBIT 2.1
WARRANT
SUBSCRIPTION NOTICE
Dated:___________
The undersigned hereby irrevocably elects to exercise its right to
purchase shares of the Common Stock, $.0001 par value per share, of Online
Resources & Communications Corporation, such right being pursuant to a Warrant
October 21, 1998, and as issued to the undersigned by Online Resources &
Communications Corporation, and remits herewith the sum of $_______________ in
payment for same in accordance with the Purchase Price specified in such
Warrant.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name
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(Please typewrite or print in block letters)
Address
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Signature
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Shares Heretofore Purchased
Under Warrant
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