1
EXHIBIT 4.2
Warrant No. 98-2
WARRANT AND WARRANT AGREEMENT
Dated as of November 6, 1998
2
THIS WARRANT AND THE SHARES OBTAINABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL SUCH
WARRANT OR SHARES ARE REGISTERED UNDER SUCH ACT OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH
REGISTRATION IS NOT REQUIRED.
CYBERCASH, INC.
WARRANT AND WARRANT AGREEMENT
This certifies that in consideration of the covenants and agreements of the
parties contained in the Operating Agreement dated October 15, 1998, the
adequacy of which consideration is hereby acknowledged, First USA Bank, or its
registered permitted assigns (the "Holder") is entitled to subscribe for and
purchase up to 600,000 shares (subject to adjustment as described herein) of
fully paid and nonassessable Common Stock (the "Warrant Shares") of CyberCash,
Inc., a Delaware corporation (the "Company"), upon exercise of this Warrant and
subject to the provisions and upon the terms and conditions hereinafter set
forth.
SECTION 1. Term; Exercise of Warrant. Subject to the terms of this
Warrant, the Holder shall have the right to receive from the Company the number
of fully paid and nonassessable Warrant Shares which the Holder may at the time
be entitled to receive on exercise of such Warrant and payment to the Company of
the Exercise Price (as defined below) then in effect for such Warrant Shares;
provided, however, that such Warrant shall be exercised in minimum increments of
100,000 shares (as proportionately adjusted for any stock splits, stock
dividends or the like). This Warrant is exercisable commencing at the opening of
business on January 1, 1999 until 5:00 p.m., Eastern time on September 30, 2003.
If not exercised prior to 5:00 p.m., Eastern time on September 30, 2003, this
Warrant shall become void and all rights thereunder and all rights in respect
thereof shall cease as of such time.
This Warrant may be exercised upon surrender to the Company at its
office designated for such purpose (the address of which is set forth in Section
10 hereof) during normal business hours (9:00 a.m. to 5:00 p.m. Eastern Time)
this Warrant with the form of election to purchase duly filled in and signed,
which signature shall be guaranteed by a bank or trust company having an office
or correspondent in the United States or a broker or dealer which is a member of
a registered securities exchange or the National Association of Securities
Dealers, Inc., and upon payment to the Company of the Exercise Price (as defined
in Section 3), subject to adjustment pursuant to Section 7, for the number of
Warrant Shares in respect of which the Warrant is then exercised. Payment of the
aggregate Exercise Price shall be made in cash or by certified or official bank
check payable to the order of the Company or pursuant to the cashless exercise
provisions set forth in Section 3.
Subject to the provisions of Section 2 hereof, upon such surrender
of this Warrant and payment of the Exercise Price the Company shall issue and
cause to be delivered with all reasonable dispatch to or upon the written order
of the Holder and in such name or names as the Holder may designate, a
certificate or certificates for the number of full Warrant Shares issuable upon
the exercise of such Warrant together with cash as provided in Section 8;
3
provided, however, that if any reclassification, consolidation, merger or lease
or sale of assets is proposed to be effected by the Company as described in
subsection (f) of Section 7 hereof, or a tender offer or an exchange offer for
shares of Common Stock of the Company shall be made, upon such surrender of
Warrant and payment of the Exercise Price as aforesaid, the Company shall, as
soon as possible, but in any event not later than two business days thereafter,
issue and cause to be delivered the full number of Warrant Shares issuable upon
the exercise of such Warrant in the manner described in this sentence together
with cash as provided in Section 8. Such certificate or certificates shall be
deemed to have been issued and any person so designated to be named therein
shall be deemed to have become a holder of record of such Warrant Shares as of
the date of the surrender of such Warrant and payment of the Exercise Price.
The Warrant may be exercised, at the election of the Holder, either
in full or from time to time in part (in minimum increments of 100,000). In the
event that the Warrant is exercised in respect of fewer than all of the Warrant
Shares issuable on such exercise at any time prior to the date of expiration of
the Warrant, a new Warrant will be issued and delivered pursuant to the
provisions of this Section.
All Warrants surrendered upon exercise of Warrants shall be canceled
and disposed of by the Company.
So long as First USA or any assignee or transferee of the Warrant is
a bank holding company or a subsidiary of a bank holding company (a "Bank
Affiliate") as defined in the Bank Holding Company Act of 1956, as amended, or
other applicable banking laws of the United States and the rules and regulations
promulgated thereunder (the "Bank Holding Company Act"), no such Bank Affiliate
shall acquire Common Stock of the Company by exercise of the Warrant or
otherwise, without prior notice to or approval of the Federal Reserve Board, if
after giving effect to such exercise, the Bank Affiliate would own more than
five percent (5%) of the outstanding voting securities of the Company, or if
such exercise or conversion would otherwise violate the Bank Holding Company
Act. Shares of Common Stock may otherwise be acquired in the event that:
(i) the Company shall vote to merger or consolidate with or into any
other person, and after giving effect to such merger or consolidation, the Bank
Affiliate would not own more than 5% of the outstanding voting securities of the
surviving corporation;
(ii) Holder desires to sell shares of Common Stock in connection
with any proposed purchase of Common Stock by one or more other persons (other
than a Bank Affiliate) in which no such person acquires more than two percent
(2%) of the Company's Common Stock; or
(iii) Holder exercises registration rights pursuant to this Warrant
and Warrant Agreement and agrees to sell the Common Stock pursuant to the
registration statement resulting therefrom in a widely dispersed public
offering.
SECTION 2. Payment of Taxes. The Company will pay all documentary
stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon
the exercise of Warrants.
-2-
4
SECTION 3. Exercise Price. (a) The purchase price for each share of
Common Stock deliverable upon exercise of this Warrant (the "Exercise Price")
shall be determined as follows:
Beginning (9:00 am) Ending (5:00 pm) Exercise Price
January 1, 1999 December 31, 1999 $17.00
January 1, 2000 September 20, 2003 $32.00
(b) In lieu of delivering the Exercise Price as set forth in
subparagraph (a), the Holder may exercise this Warrant by conversion, in whole
or in part (but in increments of not less than 100,000 shares), into shares of
Common Stock, by instructing the Company in writing ("Notice of Conversion") to
deliver to the Holder (without payment by the Holder of any Exercise Price or of
any other cash or consideration) that number of shares of Common Stock equal to
the quotient obtained by dividing:
(i) the value of this Warrant at the time the conversion
right is exercised (determined by subtracting the
aggregate Exercise Price in effect immediately prior to
the exercise of the conversion right from the aggregate
fair market value (as determined in accordance with
Section 7 hereof) of the shares of Common Stock issuable
upon exercise of this Warrant immediately prior to the
exercise of the conversion right) by
(ii) the current fair market value (as determined in
accordance with Section 7 hereof) of one share of Common
Stock immediately prior to the exercise of the
conversion right,
and multiplying the quotient so obtained by a fraction equal to the portion of
this Warrant which the Holder desires to exercise.
The Notice of Conversion may be given by circling the appropriate
option in the Notice of Exercise attached hereto.
SECTION 4. Mutilated or Missing Warrant Certificates. In case the
Warrant shall be mutilated, lost, stolen or destroyed, the Company shall issue,
in exchange and substitution for and upon cancellation of the mutilated Warrant,
or in lieu of and substitution for the Warrant lost, stolen or destroyed, a new
Warrant of like tenor and representing an equivalent number of Warrant Shares,
but only upon receipt of evidence reasonably satisfactory to the Company of such
loss, theft or destruction of such Warrant and indemnity, if requested, also
reasonably satisfactory to it.
-3-
5
SECTION 5. Valid Issuance of Warrant; Reservation of Warrant Shares.
The execution and delivery of this Warrant and Warrant Agreement and
the issuance and sale of the Common Stock upon exercise of the Warrant pursuant
to its terms (i) are within the corporate power and authority of the Company and
(ii) have been duly authorized by all requisite corporate proceedings on the
part of the Company. This Warrant and Warrant Agreement has been duly executed
and delivered by the Company and constitutes a valid and binding agreement of
the Company, enforceable in accordance with its terms, except that (i) such
enforcement maybe subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
and (ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought. The
capitalization of the Company as of June 30, 1998 is as set forth in the
Company's quarterly report on Form 10-Q filed with the Securities and Exchange
Commission on August 14, 1998.
The Company will at all times reserve and keep available, free from
preemptive rights, out of the aggregate of its authorized but unissued Common
Stock or its authorized and issued Common Stock held in its treasury, for the
purpose of enabling it to satisfy any obligation to issue Warrant Shares upon
exercise of the Warrant, the maximum number of shares of Common Stock which may
then be deliverable upon the exercise of the outstanding Warrant.
The Company or, if appointed, the transfer agent for the Common
Stock (the "Transfer Agent") and every subsequent transfer agent for any shares
of the Company's capital stock issuable upon the exercise of any of the rights
of purchase aforesaid will be irrevocably authorized and directed at all times
to reserve such number of authorized shares as shall be required for such
purpose.
Before taking any action which would cause an adjustment pursuant to
Section 7 hereof to reduce the Exercise Price below the then par value (if any)
of the Warrant Shares, the Company will take any corporate action which may, in
the opinion of its counsel, be necessary in order that the Company may validly
and legally issue fully paid and nonassessable Warrant Shares at the Exercise
Price as so adjusted.
The Company covenants that all Warrant Shares which may be issued
upon exercise of this Warrant will, upon issue, be fully paid, nonassessable,
free of preemptive rights and free from all documentary stamp taxes, and liens,
charges and security interests with respect to the issue thereof.
-4-
6
SECTION 6. Delivery of Information; Obtaining Stock Exchange
Listings.
(a) The Company will from time to time take all
action which may be necessary so that the Warrant Shares, immediately upon their
issuance upon the exercise of this Warrant, will be listed on the principal
securities exchanges and automated quotation systems within the United States of
America, if any, on which other shares of Common Stock are then listed.
(b) During the term of this Warrant and Warrant
Agreement, the Company agrees to provide to First USA (so long as it is a
Holder): (i) copies of any of the following reports filed with the SEC: Annual
Report on Form 10-K, its Quarterly Reports on Form 10-Q and any Current Reports
on Form 8-K; (ii) copies of all press releases issued by the Company or any of
its Subsidiaries; and (iii) copies of any notices or other information the
Company generally makes available or provides to stockholders. The Company's
obligation to provide any such information to First USA shall be satisfied by
the electronic delivery of information to Xxxxxxx Xxxxxx at
xxxxxxxxxxxxx@xxxxxxxx.xxx and/or by facsimile to Xxxxxxx Xxxxxx at (302)
000-0000 (fax) and (000) 000-0000 (phone) or such other electronic address or
telephone number as shall be provided in writing to the Company.
SECTION 7. Adjustment of Exercise Price and Number of Warrant Shares
Issuable. The Exercise Price and the number of Warrant Shares issuable upon the
exercise of the Warrant are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 7. For purposes of this
Section 7, "Common Stock" means shares now or hereafter authorized of any class
of common stock of the Company and any other stock of the Company, however
designated, that has the right (subject to any prior rights of any class or
series of preferred stock) to participate in any distribution of the assets or
earnings of the Company without limit as to per share amount.
-5-
7
(a) Adjustment for Change in Common Stock.
If the Company: (i) pays a dividend or makes a distribution on its
Common Stock in shares of its Common Stock; (ii) subdivides its outstanding
shares of Common Stock into a greater number of shares; or (iii) combines its
outstanding shares of Common Stock into a smaller number of shares; then the
Exercise Price in effect immediately prior to such action (and each Exercise
Price provided for in Section 3 hereof) shall then be adjusted in accordance
with the formula:
E* = E x O
---
A
Where:
E*= the adjusted Exercise Price
E = the current Exercise Price
O = the number of shares of Common Stock outstanding prior to such
action
A = the number of shares of Common Stock outstanding immediately after
such action
In the case of a dividend or distribution the adjustment shall
become effective immediately after the payment date for such dividend or
distribution, or the effective date of such other corporate action including,
but not limited to, a subdivision or combination.
If after an adjustment the Holder upon exercise of the Warrant may
receive shares of two or more classes of capital stock of the Company, the
Company shall determine the allocation of the adjusted Exercise Price between
the classes of capital stock. After such allocation, the exercise privilege, the
number of shares issuable upon such exercise, and the Exercise Price of each
class of capital stock shall thereafter be subject to adjustment on terms
comparable to those applicable to Common Stock in this Section 7.
Such adjustment shall be made successively whenever any event listed
above shall occur.
-6-
8
(b) Adjustment for Rights Issue.
If the Company distributes any rights, options or warrants to all
holders of its Common Stock entitling them at any time after the record date
mentioned below to purchase shares of Common Stock at a price per share less
than the Fair Market Value (as defined in Section 7(c)) per share on such record
date relating to such distribution, the Exercise Price in effect immediately
prior to such action (and each Exercise Price provided in Section 3 hereof)
shall be adjusted in accordance with the formula:
O +N x P
-----
E* = E x M
--------
O + N
where:
E*= the adjusted Exercise Price.
E = the current Exercise Price.
O = the number of shares of Common Stock outstanding on the record date.
N = the number of additional shares of Common Stock issuable upon exercise
of the rights, options or warrants offered.
P = the exercise price per share of the additional shares issuable upon
exercise of the rights, options or warrants.
M = the Fair Market Value per share of Common Stock on the record date.
The adjustment shall be made successively whenever any such rights,
options or warrants are issued and shall become effective immediately after the
record date for the determination of stockholders entitled to receive the
rights, options or warrants. If at the end of the period during which such
rights, options or warrants are exercisable, not all rights, options or warrants
shall have been exercised, the Exercise Price shall be immediately readjusted to
what it would have been if "N" in the above formula had been the number of
shares actually issued.
Notwithstanding the foregoing, if the Company distributes or issues
rights to all holders of its Common Stock pursuant to a shareholder rights plan,
then no adjustment shall be made pursuant to this Section 7(b) upon such
distribution or issuance if, upon exercise of the Warrant, the Holder receives
the same type and number of unexpired rights it would have received (as adjusted
for any event described in Sections 7(a) or (f)) had it exercised the Warrant,
and been a holder of the shares of Common Stock issuable upon exercise thereof,
prior to the record date for such distribution or issuance.
-7-
9
(c) Fair Market Value.
"Fair Market Value" per share of Common Stock or any other security
(herein collectively referred to as a "Security") or for any other asset at any
date shall be:
(1) if the Security is registered under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), the average of the daily Market Prices
for each business day during the period commencing 30 business days before such
date and ending on the date one day prior to such date or, if the Security has
been registered under the Exchange Act for less than 30 consecutive business
days before such date, then the average of the daily Market Prices for all of
the business days before such date for which daily Market Prices are available.
If the Market Price is not determinable for at least 15 business days in such
period, the Fair Market Value of the Security shall be determined as if the
Security was not registered under the Exchange Act; or
(2) if the asset or Security is not registered under the Exchange
Act, (i) the value of the asset or Security determined in good faith by the
Board of Directors of the Company and certified in a board resolution, based on
the most recently completed arm's length transaction between the Company and a
person other than an affiliate of the Company in which such determination is
necessary and the closing of which occurs on such date or shall have occurred
within the six months preceding such date, or (ii) if no such transaction shall
have occurred on such date or within such six-month period, the value of the
asset or Security determined pursuant to the procedures set forth in Section
7(h).
The "Market Price" for any Security on any business day means: (i)
if such Security is listed or admitted to trading on any securities exchange,
the closing price, regular way, on such day on the principal exchange on which
such Security is traded, or if no sale takes place on such day, the average of
the closing bid and asked prices on such day, (ii) if such Security is not then
listed or admitted to trading on any securities exchange, the last reported sale
price on such day, or if there is no such last reported sale price on such day,
the average of the closing bid and the asked prices on such day, as reported by
a reputable quotation source designated by the Company, or (iii) if neither
clause (i) nor (ii) is applicable, the average of the reported high bid and low
asked prices on such day, as reported by a reputable quotation service, or a
newspaper of general circulation in the Borough of Manhattan, City of New York,
customarily published on each business day, designated by the Company. If there
are no such prices on a business day, then the Market Price shall not be
determinable for such business day.
(d) When De Minimis Adjustment May Be Deferred.
No adjustment in the Exercise Price need be made unless the
adjustment would require an increase or decrease of at least 1% in the Exercise
Price. Any adjustments that are not made shall be carried forward and taken into
account in any subsequent adjustment.
-8-
10
All calculations under this Section shall be made to the nearest
cent or to the nearest 1/20th of a share, as the case may be.
(e) When No Adjustment Required.
No adjustment shall be made for a transaction referred to in
subsections (a) or (b) of this Section 7 if Holder is to participate in the
transaction on a basis and with notice that is fair and appropriate in light of
the basis and notice on which holders of Common Stock participate in the
transaction.
No adjustment shall be made for rights to purchase Common Stock
pursuant to a Company plan for reinvestment of dividends or interest.
No adjustment shall be made for a change in the par value of the
Common Stock.
To the extent this Warrant becomes convertible into cash, no
adjustment need be made thereafter as to the cash. Interest will not accrue on
the cash.
(f) Reorganization of Company.
If any reclassification of the Common Stock of the Company or any
consolidation or merger of the Company with another entity, or the sale or lease
of all or substantially all of the Company's assets to another entity shall be
effected in such a way that holders of the Common Stock of the Company shall be
entitled to receive stock, securities or assets with respect to or in exchange
for such Common Stock, then, as a condition precedent to such reclassification,
consolidation, merger, sale or lease, lawful and adequate provisions shall be
made whereby the Holder shall thereafter have the right to purchase and receive
upon the basis and the terms and conditions specified in this Warrant,
including, without limitation, the requirements set forth in Section 6(b), and
in lieu of the shares of Common Stock immediately theretofore purchasable and
receivable upon the exercise of the rights represented hereby, such shares of
stock, securities or assets as may be issued or payable in such
reclassification, consolidation, merger, sale or lease with respect to or in
exchange for the number of shares of Common Stock purchasable and receivable
upon the exercise of the rights represented hereby had such rights been
exercised immediately prior thereto, and in any such case appropriate provision
shall be made with respect to the rights and interests of the Holder to the end
that the provisions hereof (including, without limitation, provisions for
adjustments of the Exercise Price and of the number of shares of Common Stock
purchasable and receivable upon the exercise of the Warrant) shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock, securities
or assets thereafter deliverable upon the exercise hereof. The successor
corporation (if other than the Company) resulting from such reclassification,
consolidation or merger or the corporation purchasing or leasing such assets
shall assume by a supplemental Warrant, executed and mailed or delivered to the
Holder, the obligation to deliver to the Holder such shares of stock, securities
or assets as, in accordance with the foregoing provisions, Holder may be
entitled to purchase.
-9-
11
If the issuer of securities deliverable upon exercise of the
supplemental Warrant is an affiliate of the formed, surviving, transferee or
lessee corporation, that issuer shall join in the supplemental Warrant.
If this subsection (f) applies, subsections (a) and (b) of this
Section 7 do not apply.
(g) Adjustment in Number of Shares of Common Stock.
Upon each adjustment of the Exercise Price pursuant to this Section
7, the Warrant outstanding prior to the making of the adjustment in the Exercise
Price shall thereafter evidence the right to receive upon payment of the
adjusted Exercise Price that number of shares of Common Stock (calculated to the
nearest 1/20th of a share) obtained from the following formula:
E*
---
N* = N x E
where:
N* = the adjusted number of Warrant Shares issuable upon exercise of the
Warrant by payment of the adjusted Exercise Price.
N = the number of Warrant Shares previously issuable upon exercise of the
Warrant by payment of the Exercise Price prior to adjustment.
E* = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
(h) Disputes; Fair Market Value Determination.
If a dispute shall at any time arise between the Company and the
Holder with respect to any matters hereunder including adjustments to the number
of shares of Common Stock, the Exercise Price, or a determination as to Fair
Market Value provided for herein, such dispute shall be conclusively determined
by either the Holder and the Company agreeing on a single independent investment
bank of recognized national standing to resolve the dispute or, if the Holder
and the Company cannot agree on a single investment bank after an additional
seven days, each of the Holder and the Company shall appoint an independent
investment bank of recognized national standing with appropriate experience
involving companies comparable to the Company and the dispute shall be mutually
resolved by the two investment banks. If the two investment banks are not able
to reach agreement within 20 days, then they shall within five days appoint a
third independent investment bank of recognized national standing with
appropriate experience involving companies comparable to the Company and the
dispute shall be definitively resolved by such third investment bank within 20
days. Each party shall pay the costs, fees and expenses of its respective
investment bankers and the parties shall split the costs of the third investment
bank.
-10-
12
SECTION 8. Fractional Interests. The Company shall not be required
to issue fractional Warrant Shares on the exercise of the Warrant. The number of
full Warrant Shares which shall be issuable upon the exercise thereof shall be
computed on the basis of the aggregate number of Warrant Shares purchasable on
exercise of the Warrants so presented. If any fraction of a Warrant Share would,
except for the provisions of this Section 8, be issuable on the exercise of
Warrant (or specified portion thereof), the Company shall pay an amount in cash
equal to the Fair Market Value on the day immediately preceding the date the
Warrant is presented for exercise, multiplied by such fraction.
SECTION 9. Notices to the Holder. Upon any adjustment of the
Exercise Price pursuant to Section 7, the Company shall promptly thereafter (i)
cause to be filed with the Secretary of the Company a certificate setting forth
the Exercise Price after such adjustment and setting forth in reasonable detail
the method of calculation and the facts upon which such calculations are based
and setting forth the number of Warrant Shares (or portion thereof) issuable
after such adjustment in the Exercise Price, upon exercise of this Warrant and
payment of the adjusted Exercise Price, and (ii) cause to be given to the Holder
written notice of such adjustments by first-class mail, postage prepaid. Where
appropriate, such notice may be given in advance and included as a part of the
notice required to be mailed under the other provisions of this Section 9.
In case:
(a) the Company shall authorize the issuance to all holders of
shares of Common Stock of rights, options or warrants to subscribe for or
purchase shares of Common Stock or of any other subscription rights or
warrants; or
(b) the Company shall authorize the distribution to all holders of
shares of Common Stock of evidences of its indebtedness or assets (other
than cash dividends or cash distributions payable out of earnings or
earned surplus or dividends or distributions payable in shares of Common
Stock); or
(c) of any consolidation or merger to which the Company is a party
and for which approval of any shareholders of the Company is required, or
of the conveyance or transfer of all or substantially all of the
properties and assets of the Company, or of any reclassification or change
of Common Stock issuable upon exercise of the Warrant (other than a change
in par value, or from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination), or a tender
offer or exchange offer for shares of Common Stock; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) the Company proposes to take any action that would require an
adjustment in the Exercise Price pursuant to subsections (a), (b) or (c)
of Section 7 and if the Company does not arrange for the Holder to
participate pursuant to subsection (f)
-11-
13
of Section 7, or if the Company takes any action that would require a
supplemental Warrant pursuant to subsection (f) of Section 7;
then the Company shall cause to be given to the Holder, prior to the applicable
record date hereinafter specified, or promptly in the case of events for which
there is no record date, by first-class mail, postage prepaid, a written notice
stating (i) the date as of which the holders of record of shares of Common Stock
to be entitled to receive any such rights, options, warrants or distribution are
to be determined, or (ii) the initial expiration date set forth in any tender
offer or exchange offer for shares of Common Stock, or (iii) the date on which
any such consolidation, merger, conveyance, transfer, dissolution, liquidation
or winding up is expected to become effective or consummated, and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange such shares for securities or other property, if any,
deliverable upon such reclassification, consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding up; provided, however, that the
Holder shall not be entitled to receive notice prior to any public announcement
thereof by the Company. The failure to give the notice required by this Section
9 or any defect therein shall not affect the legality or validity of any
distribution, right, option, warrant, consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding up, or the vote upon any action.
Nothing contained in this Warrant shall be construed as conferring
upon the Holder the right to vote or to consent or to receive notice as
shareholders in respect of the meetings of shareholders or the election of
Directors of the Company or any other matter, or any rights whatsoever as
shareholders of the Company.
SECTION 10. Notices to Company and the Holder. Unless otherwise
provided herein, any notice, request, instruction or other document to be given
hereunder by any party to the others shall be in writing and delivered in person
or by courier or by facsimile transmission (with receipt confirmed), or mailed
by certified mail, postage prepaid, return receipt requested (such mailed notice
to be effective on the date such receipt is acknowledged), as follows:
If to the Company:
CyberCash, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
-12-
14
With a copy to:
Xxxxx & Xxxxxxx, L.L.P.
000 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxxx Xxxxx, Esquire
Telecopy No.: (000) 000-0000
If to the Holder:
First USA Bank
000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Telecopy No.: (000)-000-0000
With a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others.
SECTION 11. Supplements and Amendments. The Company may not
supplement or amend this Warrant without the prior written approval of the
Holder.
SECTION 12. Successors and Assignment. All the covenants and
provisions of this Warrant by or for the benefit of the Company shall bind and
inure to the benefit of its respective successors and assigns hereunder. This
Warrant is not assignable or transferable by the Holder except in increments of
100,000 Warrant Shares or by operation of law.
SECTION 13. Governing Law. This Warrant shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes shall
be construed in accordance with the internal laws of said State, excluding
choice of law provisions.
SECTION 14. Benefits of This Warrant. Nothing in this Warrant shall
be construed to give to any person or corporation other than the Company and the
Holder any legal or equitable right, remedy or claim under this Warrant; but
this Warrant shall be for the sole and exclusive benefit of the Company and the
Holder.
-13-
15
SECTION 15. Demand and Piggy Back Registrations.
(a) Subject to the provisions of this Section 15, one or more
Holders of at least 51% of the Common Stock issuable upon exercise of all
Warrants 98-1, 98-2 and 98-3 (the "Registrable Securities") may make one request
(the "Demand Request") registration for sale under the Securities Act of the
Registrable Securities, provided that such Holders request registration for sale
of a number of shares which represents at least 51% of the total number of
shares of Common Stock held by all Holders on the date of such Demand Request.
The Company shall thereafter, as expeditiously as practicable, use its best
efforts to file with the SEC under the Securities Act of 1933 (the "Securities
Act") a registration statement on the appropriate form covering all Registrable
Securities specified in the Demand Request (the "Registration Statement"). The
Demand Request shall specify the intended methods of disposition thereof and the
information required by Item 507 of Regulation S-K under the Securities Act.
Upon such Demand Request, subject to this Section 15, the Company shall use its
best efforts to promptly effect the registration of such Registrable Securities
under (i) the Securities Act, and (ii) if applicable, the blue sky laws of such
jurisdictions as any Holder of such Registrable Securities requesting such
registration or any underwriter, if any, may reasonably request. The Company
shall be deemed to have effected a Demand Registration if the Registration
Statement relating to such Demand Request is filed with the SEC but the
requesting Holders inform the Company that they desire that the Registration
Statement be withdrawn or abandoned; provided, however, that such withdrawal
does not result from action or inaction on the part of the Company that has
materially and adversely affected the value of such registration to the
participating Holders, or if the Registration Statement is declared effective by
the SEC and remains effective until the earlier of the date on which (i) all the
Registrable Securities subject to such Registration Statement have been disposed
of, (ii) nine months have elapsed from the date of such effectiveness or (iii)
the Registrable Securities are eligible for resale under Securities Act Rule
144(k). If at any time or from time to time during the time period applicable to
the Demand Registration any of the Holders of the Registrable Securities covered
by a Registration Statement desire to sell Registrable Securities in an
underwritten offering, the investment banker or investment bankers that will
manage the offering will be selected by the Holders of at least 51% of the
Registrable Securities included in such offering; provided that the selection of
any such investment banker or investment bankers is subject to the approval and
consent by the Company. The Company shall not be required to file any
Registration Statement pursuant to this Section 15(a) for a deferral period of
up to 120 days if the Board of Directors of the Company in good faith determines
that such registration would interfere with any proposed offering of shares of
the Company's capital stock, pending financing transaction, or acquisition,
corporate reorganization or other significant transaction involving the Company.
(b) If the Company proposes to make a registered public offering of
any of its Common Stock under the Securities Act (except for offerings on Forms
X-0, X-0 or any successor forms), the Company agrees on each such occasion
during the term of this Warrant, subject to the provisions of this Section 15,
to give written notice of the proposed registration to Holder, not less than 15
days prior to the proposed filing date of the registration statement, and at the
written request of Holder delivered in writing to the Company within 10 days
after the receipt of said notice, the Company agrees, subject to the provisions
of this Section 15, to
-14-
16
include in the registration statement and offering, and in any underwriting of
the offering, all Warrant Shares as may have been designated in the Holder's
request.
(c) Underwriter Discretion. If a registration in which the Holder
has the right to participate pursuant to this Section 15 is an underwritten
registration on behalf of the Company, and the managing underwriters advise the
Company, that, in their opinion, the number of securities requested to be
included in the registration exceeds the number which can be sold in the
offering, the Company shall allocate the number of shares to be included in the
registration statement as follows: (i) first, all of the securities of the
Company proposed to be sold by the Company, (ii) second, stockholders,
optionholders or warrantholders with registration rights in existence as of
January 1, 1999; and (iii) third, the Common Stock requested to be sold by
Holder and all other requesting Holders of Warrants issued on January 1, 1999,
reduced, pro rata, in accordance with the percentage interests in the Company
held by each of them.
(d) Information Required. The Company shall have no obligation to
include shares of Common Stock owned by Holder in a registration statement
pursuant to this Section 15, unless and until the Holder shall have furnished
the Company with all information and statements about or pertaining to Holder in
the reasonable detail and on a timely basis as is reasonably deemed by the
Company to be necessary or appropriate with respect to the preparation of the
registration statement.
(e) Hold-back. In the event that the Company effects an underwritten
public offering of any security, the Holder agrees, if requested by the managing
underwriters, not to effect any public sale or distribution, including any sale
pursuant to Rule 144 under the Securities Act, of any Common Stock (except as
part of the underwritten offering) during the 90-day period commencing with the
effective date of the registration statement for the offering.
(f) Expenses. If, pursuant to Section 15 hereof, shares of Common
Stock owned by any Holder are included in a registration statement, the Holder
shall pay all transfer taxes, if any, relating to the sale of its shares, the
fees and expenses of its own counsel, and its pro rata portion of any
underwriting discounts or commissions or the equivalent thereof. The Company
agrees to pay all expenses incident to the registration including all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws, underwriting discounts, fees and expenses (other than the
Holder's pro rata portion of any underwriting discounts or commissions or the
equivalent thereof), printing expenses, messenger and delivery expenses, and
fees and expenses of counsel for the Company and all independent certified
public accountants and other persons retained by the Company.
(g) Indemnification. In the event that any shares of Common Stock
owned by a Holder are sold by means of a registration statement pursuant to this
Section 15, the Company agrees to indemnify and hold harmless the Holder, each
of its officers and directors, and each person, if any, who controls or may
control the Holder within the meaning of the Securities Act (the Holder, its
officers and directors., and any other persons being hereinafter referred to
individually as an "Indemnified Person" and collectively as "Indemnified
Persons") from and against all demands, claims, actions or causes of action,
assessments, losses,
-15-
17
damages, liabilities, costs, and expenses, including, without limitation,
interest, penalties, and reasonable attorneys' fees and disbursements, asserted
against, resulting to, imposed upon or incurred by the Indemnified Person,
directly or indirectly (hereinafter referred to in this Section 15 or, the
singular as a "claim" and in the plural as "claims"), based upon, arising out of
or resulting from any untrue statement of a material fact obtained in the
registration statement or any omission to state therein a material fact
necessary to make the statement made therein, in the light of the circumstances
under which they were made, not misleading, except insofar as the claim is based
upon, rises out of or results from information furnished to the Company in
writing by the Holder for use in connection with the registration statement. The
Holder agrees to indemnify and hold harmless the Company, its officers and
directors, and each person, if any, who controls or may control the Company
within the meaning of the Securities Act (the Company, it's officers and
directors, and any other persons also being hereinafter referred to individually
as an "Indemnified Person" and collectively as "Indemnified Persons") from and
against all claims based upon, arising out of or resulting from any untrue
statement of a material fact contained in the registration statement or any
omission to state therein a material fact necessary in order to make the
statement made therein, in the light of the circumstances under which they were
made, not misleading, to the extent that the claim is based upon, arises out of
or results from information furnished to the Company in writing by the Holder
for use in connection with the registration statement. Promptly after actually
receiving definitive notice of any claim in respect of which an Indemnified
Person may seek indemnification under this Section 15, the Indemnified Person
shall submit written notice thereof to either the Company or the Holder, as the
case may be (sometimes being hereinafter referred to as an "Indemnifying
Person"). The omission of the Indemnified Person to so notify the Indemnifying
Person of any claim shall not relieve the Indemnifying Person from any liability
it may have hereunder except to the extent that (a) the liability was caused or
increased by the omission, or (b) the ability of the Indemnifying Person to
reduce the liability was materially adversely affected by the omission. In
addition, the omission of the Indemnified Person so to notify the Indemnifying
Person of any claim shall not relieve the Indemnifying Person from any liability
it may have otherwise than hereunder. The Indemnifying Person shall have the
right to undertake, by counsel or representatives of its own choosing, the
defense, compromise or settlement (without admitting liability of the
Indemnified Person) of and the claim asserted, the defense, compromise or
settlement to be undertaken at the expense and risk of the Indemnifying Person,
and the Indemnified Person shall have the right to engage separate counsel, at
its own expense, whom counsel for the Indemnifying Person shall keep informed
and consult with in a reasonable manner. In the event the Indemnifying Person
shall elect not to undertake the defense by its own representatives, the
Indemnifying Person shall give prompt written notice of the election to the
Indemnified Person, and the Indemnified Person shall undertake the defense,
compromise or settlement (without admitting liability of the Indemnified Person)
thereof on behalf of and for the account and risk of the Indemnifying Person by
counsel or other representatives designated by the Indemnified Person. In the
event that any claim shall arise out of a transaction or cover any period or
periods wherein the Company and the Holder shall each be liable hereunder for
part of the liability or obligation arising therefrom, then the parties shall,
each choosing its own counsel and bearing its own expenses, defend the claim,
and no settlement or compromise of the claim may be made without the joint
consent or approval of the Company and the Holder. Notwithstanding the
foregoing, no Indemnifying Person shall be obligated hereunder with respect to
amounts paid in settlement of any claim if the settlement is effected without
the consent of the Indemnifying Person (which consent shall not be unreasonably
withheld).
-16-
18
(h) Termination of Registration Rights. The Company's obligations
and the Holder's rights under this Section 15 shall terminate if, in the
reasonable opinion of the Company, the shares of Common Stock issuable upon
exercise of the Warrant pursuant to Section 3(b) hereof would be eligible for
resale by the Holder under Securities Act Rule 144(k).
SECTION 16. Counterparts. This Warrant and Warrant Agreement may be
executed in any number of counterparts and each of such counterparts shall for
all purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
[Signature Page To Follow]
-17-
19
Date: November 6, 1998 CyberCash, Inc.
By: /s/ XXXXX X. XXXXXX
------------------------ -----------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------
Title: Chief Financial Officer
--------------------------------
RECEIVED BY:
First USA Bank
By:
--------------------------- ----------------------------------
Name:
---------------------------------
Title:
--------------------------------
-18-
20
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to receive _________ shares of Common Stock and
herewith tenders (a) payment for such shares to the order of CyberCash, Inc. in
the amount of $_____ in accordance with the terms hereof or (b) elects to
exercise its right of conversion set forth in Section 3(b) of the attached
warrant. The undersigned requests that a certificate for such shares be
registered in the name of _______________________________________, whose address
is _______________________________ and that such shares be delivered to
________________ whose address is _________________________________. If said
number of shares is less than all of the shares of Common Stock purchasable
hereunder, the undersigned requests that a new Warrant representing the
remaining balance of such shares be registered in the name of ______________,
whose address is _________________________, and that such Warrant be delivered
to _________________, whose address is __________________.
The undersigned represents that the aforesaid shares of Common Stock
are being acquired for the account of the undersigned for investment and not
with a view to, or for resale in connection with, the distribution thereof and
that the undersigned has no present intention of distributing or reselling such
shares.
The undersigned is an "accredited investor" as defined in Securities
and Exchange Commission Rule 501(a) pursuant to the Securities Act, as amended.
Signature:______________________________
Date:___________________
Signature Guaranteed:___________________
19
