EXHIBIT 4.4
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FORM OF WARRANT
to Purchase Common Stock of
InteliData Technologies Corporation
Expiring _____ __, _____
CERTIFICATE NO.: ________
THIS WARRANT AND ANY SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY PORTION HEREOF OR INTEREST
HEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF UNLESS THE SAME IS REGISTERED UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAW, OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE
AND THE COMPANY RECEIVES EVIDENCE OF SUCH EXEMPTION REASONABLY SATISFACTORY TO
IT (WHICH MAY INCLUDE AN OPINION OF COUNSEL).
This Warrant certifies that __________________ or its registered
assigns (the "Holder"), is entitled to subscribe for and purchase from
InteliData Technologies Corporation, a Delaware corporation (the "Company"), all
or any part of duly authorized, validly issued, fully paid and nonassessable
shares of the Company's common stock, par value $.001 per share (the common
stock, including any stock into which it may be changed, reclassified, or
converted, is herein referred to as the "Common Stock"), as comprise
_________Units (as defined below) at an exercise price of $____ per Unit (the
"Exercise Price"). A "Unit" shall consist initially of one share of Common Stock
of the Company as such stock is constituted on the date of this Warrant, subject
to adjustment as set forth herein. The Warrant may be exercised, in whole or in
part, at any time, and from time to time, from the date hereof and ending at
5:00 p.m., Eastern Daylight Time, on _______ __, _____.
This Warrant is subject to the following provisions, terms and
conditions:
Section 1. Exercise of Warrant.
To exercise this Warrant in whole or in part, the Holder shall deliver
to the Company at its principal office in Reston, Virginia, (1) (a) a written
notice, in substantially the form of the Subscription Notice appearing at the
end of this Warrant, of the Holder's election to exercise this Warrant which
notice shall specify the number of shares of Common Stock to be purchased, (b)
cash or a certified check payable to the Company in an amount equal to the
aggregate purchase price of the number of shares of Common Stock being
purchased, and (c) this Warrant or (2) a
written notice that the Holder is exercising the Warrant (or a portion thereof)
by authorizing the Company to withhold from issuance a number of shares of
Common Stock issuable upon such exercise of the Warrant which when multiplied by
the Market Price (as such term is hereinafter defined) of the Common Stock is
equal to the applicable Warrant Price multiplied by the number of Warrants being
exercised (and such withheld shares shall no longer be issuable under this
Warrant). The Company shall as promptly as practicable, and in any event within
15 days thereafter, execute and deliver or cause to be executed and delivered,
in accordance with such notice, a certificate or certificates representing the
aggregate number of shares of Common Stock specified in such notice. The stock
certificate or certificates so delivered shall be issued in the name of the
Holder or such other name as shall be designated in such notice. Such
certificate or certificates shall be deemed to have been issued and the Holder
or any other person so designated to be named therein shall be deemed for all
purposes to have become a holder of record of such shares as of the date such
notice is received by the Company as aforesaid. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of said
certificate or certificates, deliver to the Holder a new Warrant evidencing the
rights of the Holder to purchase the remaining shares of Common Stock called for
by this Warrant, which new Warrant shall in all other respects be identical to
this Warrant, or, at the request of the Holder, appropriate notation may be made
on this Warrant and the same returned to the Holder. The Company shall pay all
expenses, taxes and other charges payable in connection with the preparation,
issue and delivery of such stock certificates, except that, in case such stock
certificates shall be registered in a name or names other than the name of the
Holder, funds sufficient to pay all stock transfer taxes that are payable upon
the issuance of such stock certificate or certificates shall be paid by the
Holder at the time of delivering the notice of exercise mentioned above.
All shares of Common Stock issued upon the exercise of this Warrant
shall be validly issued, fully paid and nonassessable and, if the Common Stock
is then listed on a national securities exchange or quoted on an automated
quotation system, shall be duly listed or quoted thereon.
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, but,
in lieu thereof, shall pay to the Holder cash in an amount equal to a
corresponding fraction (calculated to the nearest 1/100 of a share) of the
purchase price of one share of Common Stock as of the date of receipt by the
Company of notice of exercise of this Warrant.
Section 2. Transfer, Division and Combination.
The Company agrees to maintain at its principal office in Reston,
Virginia, books for the registration and transfer of this Warrant, and, subject
to the provisions of Section 3 hereof, this Warrant and all rights hereunder are
transferable, in whole or in part, on such books at such office, upon surrender
of this Warrant at such office, together with a written assignment of this
Warrant duly executed by the Holder or his agent or attorney and funds
sufficient to pay any stock transfer taxes payable upon the making of such
transfer. Upon such surrender and payment, the Company
shall execute and deliver a new Warrant in the name of the assignee and this
Warrant shall promptly be canceled. If and when this Warrant is assigned in
blank, the Company may (but shall not be obliged to) treat the bearer hereof as
the absolute owner of this Warrant for all purposes, and the Company shall not
be affected by any notice to the contrary. A Warrant may be exercised by a new
holder for the purchase of shares of Common Stock without having a new Warrant
issued.
This Warrant may be divided or combined with other Warrants upon
presentation hereof at such principal office in Reston, Virginia, together with
a written notice specifying the names and denominations in which new Warrants
are to be issued, signed by the Holder or his agent or attorney. Subject to
compliance with the preceding paragraph as to any transfer that may be involved
in such division or combination, the Company shall execute and deliver a new
Warrant or Warrants in exchange for the Warrant or Warrants to be divided or
combined in accordance with such notice.
Section 3. Restrictions on Exercise and Transfer of Warrants and
Common Stock.
This Warrant shall be exercisable (a) only under circumstances such
that the issue of Common Stock issuable upon such exercise is exempt from the
requirements of registration under the Securities Act of 1933, as amended (or
any similar statute then in effect) (the "1933 Act") and any applicable state
securities law or (b) upon registration of such Common Stock in compliance
therewith. This Warrant shall be transferable (a) only under circumstances such
that the transfer is exempt from the requirements of registration under the 1933
Act and any applicable state securities law or (b) upon registration (for resale
or otherwise) of such Warrant in compliance therewith. By acceptance hereof, the
Holder (for resale or otherwise) agrees to comply with such legislation.
As long as this Warrant is not registered under the 1933 Act, before
any transfer or attempted transfer of all of this Warrant or such Common Stock,
the Holder shall give the Company written notice of its intention so to do
describing briefly the manner of any such proposed transfer. Promptly after
receiving such written notice, the Company shall present copies thereof to
Company counsel and to any special counsel designated by the Holder. If, in the
opinion of counsel for the Company and counsel, if any, for the Holder, the
proposed transfer may be effected without registration under the 1933 Act and
any applicable state securities law of any such securities, the Company, as
promptly as practicable, shall notify the Holder of such opinion, whereupon the
securities proposed to be transferred may be transferred in accordance with the
terms of such notice. The Company shall not be required to effect any such
transfer before the receipt of such favorable opinion or opinions or the
effectiveness of registration.
Section 4. Company Registration.
In the event that the Company proposes to register any Common Stock
under the Securities Act in connection with a public offering on any form (other
than Form S-4 or Form S-8) that would legally permit the inclusion of the Common
Stock of the Holder, the Company
shall give each Holder written notice thereof as soon as practicable but in no
event less than 20 days prior to such registration, and shall include in such
registration all Common Stock requested by the Holder in writing to be included
therein, subject to the limitations set forth herein. If in connection with such
proposed registration the managing underwriter for such offering advises the
Company that the Common Stock requested by the Holder to be included therein
exceeds the number of shares that can be sold in such offering without adversely
affecting the marketability thereof, any shares to be sold by the Company in
such offering shall have priority over any Common Stock owned by the Holder, and
the shares of such Holder to be included in such registration shall be reduced
pro rata on the basis of the numbers of shares held by such Holder and all other
holders (other than the Company) exercising similar registration rights.
The Company shall bear the costs of each registration in which Holders
participate pursuant to this Section 4, excluding any underwriting discounts or
commissions on the sale of Common Stock. As a condition to the inclusion of
Common Stock in any registration, the participating Holder and the Company shall
execute an underwriting agreement or similar agreement in a form reasonably
acceptable to the Company and the underwriter(s), if any, for such offering
containing customary indemnification and holdback provisions. Notwithstanding
the foregoing, no Holder shall be required to incur indemnification obligations
(whether several or joint and several) which is in excess of the net proceeds
received by such Holders pursuant to such registration or which relates to
information not supplied by such Holder for inclusion in the registration
statement.
Notwithstanding the foregoing, if the Company shall furnish to Holders
requesting a registration pursuant to this Section 4, a certificate signed by
the President of the Company stating that, in the good faith judgment of the
Board of Directors of the Company, it would be seriously detrimental to the
Company and its shareholders for such registration statement to be filed by
reason of a material pending transaction and it is therefore essential to defer
the filing of such registration statement, the Company shall have the right to
defer such filing for a period of not more than ninety (90) days after receipt
of the request of any such Holder; provided, however, that the Company may not
utilize this right more than once in any twelve (12) month period.
Section 5. Certain Covenants.
The Company covenants and agrees that it will at all times reserve and
set apart and have, free from preemptive rights, a number of shares of
authorized but unissued Common Stock, or other stock or securities deliverable
pursuant to this Warrant, sufficient to enable it at any time to fulfill all its
obligations hereunder.
Section 6. Notices.
In the event that:
(a) the Company proposes to declare, pay or set aside for payment
any dividend or other distribution with respect to the Common Stock or
any other class of securities of the Company or purchase, redeem or
otherwise acquire for value any shares of Common Stock or any other
class of securities of the Company,
(b) the Company proposes to grant to the holders of its Common
Stock generally any rights or options,
(c) the Company proposes to effect any capital reorganization or
reclassification of capital stock of the Company,
(d) the Company proposes to consolidate with, or merge into, any
other corporation or to transfer its property as an entirety or
substantially as an entirety, or
(e) the Company proposes to effect the liquidation, dissolution
or winding up of the Company,
then the Company shall cause notice of any such intended action to be given to
the holder of record of the Warrant not less than 30 days before the date on
which the transfer books of the Company shall close or a record be taken for
such stock dividend, distribution or granting of rights or options, or the date
when such capital reorganization, reclassification, consolidation, merger,
transfer, liquidation, dissolution or winding up shall be effective, as the case
may be.
Any notice or other document required or permitted to be given or
delivered to the holder of record of the Warrant shall be delivered by
facsimile, reliable courier or first-class mail postage prepaid to such holder
at the last address shown on the books of the Company maintained for the
registry and transfer of the Warrant. Any notice or other document required or
permitted to be given or delivered to holders of record of Common Stock issued
pursuant to the Warrant shall be delivered by facsimile, reliable courier or
first-class mail postage prepaid to each such holder at such holder's address as
the same appears on the stock records of the Company. Any notice or other
document required or permitted to be given or delivered to the Company shall be
delivered by facsimile, reliable courier or first-class mail postage prepaid to
the principal office of the Company, at Reston, Virginia, or delivered to the
office of one of the Company's executive officers at such address, or such other
address as shall have been furnished by the Company in writing to the holder of
record of such Warrant and the holders of record of such Common Stock.
Section 7. Limitation of Liability; Not Stockholders.
No provision of this Warrant shall be construed as conferring upon the
Holder the right to vote or to consent or to receive dividends or to receive
notice as a stockholder in respect of meetings of stockholders for the election
of directors of the Company or any other matter whatsoever as stockholders of
the Company. No provision hereof, in the absence of affirmative action by the
Holder to purchase shares of Common Stock, and no mere enumeration herein of the
rights or privileges of the Holder, shall give rise to any liability of Holder
for the purchase price or as a stockholder of the Company, whether such
liability is asserted by the Company, creditors of the Company or others.
Section 8. 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 8 in lieu of any Warrant alleged to be lost, destroyed or stolen, or of
any mutilated Warrant, shall constitute an original contractual obligation on
the part of the Company.
Section 9. Exercise of Warrant.
This Warrant shall be exercisable at any time during the period
commencing on the date hereof and ending on ______ __, _________.
Section 10. Adjustment of Number of Shares Issuable Pursuant to
this Warrant.
The number of shares of Common Stock comprising a Unit shall be subject
to adjustment from time to time as follows:
(a) Effect of "Split-ups" and "Split-downs"; Stock Dividends.
If at any time or from time to time the Company shall subdivide as a
whole, by reclassification, by the issuance of a stock dividend on the
Common Stock payable in Common Stock, or otherwise, the number of
shares of Common Stock outstanding, the number of shares of Common
Stock comprising a Unit that may be purchased hereunder shall be
increased proportionately as of the effective or record date of such
action. The issuance of such a stock dividend shall be treated as a
subdivision of the whole number of shares of Common Stock outstanding
immediately before the record date for such dividend into a number of
shares equal to such whole number of shares so outstanding plus the
number of shares issued as a stock dividend. In case at any time or
from time to time the Company shall
combine as a whole, by reclassification or otherwise, the number of
shares of Common Stock then outstanding into a lesser number of shares
of Common Stock, with or without par value, the number of shares of
Common Stock comprising a Unit that may be purchased hereunder shall
be reduced proportionately as of the effective date of such action.
(b) Effect of Certain Dividends. If on any date the Company
makes a distribution to holders of its Common Stock (including any such
distribution made in connection with a consolidation or merger in which
the Company is the continuing corporation) of evidences of its
indebtedness or assets, the number of shares of Common Stock
theretofore comprising a Unit shall be adjusted as at the close of
business on said date to a number determined by multiplying the number
of shares theretofore comprising a Unit by a fraction, the numerator of
which shall be the Market Price immediately prior to such distribution,
and the denominator of which shall be the Market Price minus the fair
market value (as determined by a single qualified appraiser (which
shall be either a national accounting firm or a national or regional
major investment bank) selected by mutual agreement between the Company
and the Holder) of the portion of the assets or evidences of
indebtedness so to be distributed to one share of Common Stock.
(c) Effect of Merger or Consolidation. If the Company shall,
while this Warrant remains outstanding, enter into any consolidation
with or merge into any other corporation wherein the Company is not the
continuing corporation, or wherein securities of a corporation other
than the Company are distributable to holders of Common Stock of the
Company, or sell or convey its property as an entirety or substantially
as an entirety, and in connection with such consolidation, merger, sale
or conveyance, shares of stock or other securities shall be issuable or
deliverable in exchange for the Common Stock of the Company, the Holder
shall thereafter be entitled to purchase pursuant to this Warrant (in
lieu of the number of shares of Common Stock comprised in the number of
Units that the Holder would have been entitled to purchase or acquire
immediately before the effective date of such consolidation, merger,
sale or conveyance) the shares of stock or other securities to which
such number of shares of Common Stock comprised in such number of Units
would have been entitled at the time of such consolidation, merger,
sale or conveyance, at an aggregate purchase price equal to that which
would have been payable if such number of shares of Common Stock had
been purchased upon exercise of a Warrant immediately prior thereto. In
case of any such consolidation, merger, sale or conveyance, appropriate
provision (as determined by a resolution of the Board of Directors of
the Company) shall be made with respect to the rights and interests
thereafter of the Holder, to the end that all the provisions of this
Warrant (including adjustment provisions) shall thereafter be
applicable as nearly as reasonably practicable, in relation to such
stock or other securities.
(d) Reorganization and Reclassification. In case of any
capital reorganization or any reclassification of the capital stock of
the Company (except as provided in
Section 10(a)) while this Warrant remains outstanding, the Holder
shall thereafter be entitled to purchase pursuant to this Warrant (in
lieu of the number of shares of Common Stock comprised in the number
of Units that the Holder would have been entitled to purchase or
acquire immediately before such reorganization or reclassification)
the shares of stock of any class or classes or other securities or
property to which such number of shares of Common Stock comprised in
such number of Units would have been entitled if such shares of Common
Stock had been purchased immediately before such reorganization or
reclassification. In case of any such reorganization or
reclassification, appropriate provision (as determined by resolution
of the Board of Directors of the Company) shall be made with respect
to the rights and interests thereafter of the Holder, to the end that
all the provisions of this Warrant (including adjustment provisions)
shall thereafter be applicable, as nearly as reasonably practicable,
in relation to such stock or other securities or property.
(e) Statement of Adjustment of Unit. Whenever the number of
shares of Common Stock comprising a Unit is adjusted pursuant to any of
the foregoing provisions of this Section 10, the Company shall promptly
prepare a written statement signed by the chief executive officer of
the Company, setting forth the adjustment in the number of shares
comprising a Unit purchasable hereunder, determined as provided in this
Section, and in reasonable detail the facts requiring such adjustment
and the calculation thereof. Such statement shall be filed among the
permanent records of the Company and a copy thereof shall be furnished
to the Holder without request and shall at all reasonable times during
business hours be open to inspection by the Holder. The Company shall
promptly cause such notice, stating that such an adjustment has been
effected and setting forth the increased or decreased number of shares
purchasable, to be delivered by facsimile, reliable courier or
first-class mail postage prepaid to the Holder.
(f) Determination by the Board of Directors. All
determinations by the Board of Directors of the Company under the
provisions of this Section 10 shall be made in good faith with due
regard to the interests of the Holder and the other holders of
securities of the Company and in accordance with good financial
practice, and all valuations made by the Board of Directors of the
Company under the terms of this Section 10 must be made with due regard
to any market quotations of securities involved in, or related to, the
subject of such valuation.
For all purposes of this Section 10 and this Warrant, unless
the context otherwise requires, the following terms have the following
respective meanings:
"Common Stock": (i) the Company's presently authorized Common
Stock as such class exists on the date of this Warrant; (ii) securities
issued upon exercise of this Warrant; and (iii) stock of the Company of
any class thereafter authorized that ranks, or is entitled to a
participation, as to assets or dividends, substantially on a parity
with Common Stock.
"Company": InteliData Technologies Corporation, a Delaware
corporation, and any other corporation assuming the Company's
obligations with respect to this Warrant pursuant to this Section 10.
"Market Price": per share of Common Stock at any date, 100% of
the average of the daily market prices for 30 consecutive business days
before such date. The Market Price for each such business day shall be
the last bid price on such day as reported on the consolidated
transaction reporting system for the principal securities exchange on
which the Common Stock is then listed or admitted to trading or, if the
Common Stock is not then listed or admitted to trading on any stock
exchange, the Market Price for each such business day shall be the
average of the reported closing bid and asked prices on such day in the
over-the-counter market, as reported by the National Association of
Securities Dealers Automated Quotation Service. If the Common Stock is
not traded in the over-the-counter market, then the Market Price shall
be the fair market value of the Company's Common Stock as determined by
a single qualified appraiser (which shall be either a national
accounting firm or a national or regional major investment bank)
selected by mutual agreement between the Company and the Holder.
Section 11. Remedies.
The Company stipulates that the remedies at law of the Holder of this
Warrant in the event of any default or threatened default by the Company in the
performance of or compliance with any of the terms of this Warrant are not and
will not be adequate and that, without limiting any other remedy available at
law, such terms may be specifically enforced by a decree for the specific
performance of any agreement contained herein or by an injunction against a
violation of any of the terms hereof. The rights and remedies of the Holder are
cumulative and not exclusive of any rights or remedies which the Holder might
otherwise have.
Section 12. Covenants to Bind Successor and Assigns.
The terms of this Warrant shall bind the successors and permitted
assigns of the Holder and the Company.
Section 13. Governing Law.
This Warrant shall be governed by the laws of the State of Delaware
without regard to its conflict of laws principles or rules.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its name by its duly authorized officer.
Effective as of ________ __, _____.
INTELIDATA TECHNOLOGIES
CORPORATION
By: ------------------------
Xxxxxx X. Xxxxxxxx, Xx.
President and
Chief Executive Officer
SUBSCRIPTION NOTICE
The undersigned, the Holder, hereby elects to exercise purchase rights
represented by such Warrant for, and to purchase thereunder, _________ shares of
the Common Stock covered by such Warrant and herewith makes payment in full
therefor of $___________ in cash or certified check and requests that
certificates for such shares (and any securities or property deliverable upon
such exercise) be issued in the name of and delivered to __________________
whose address is ____________
The undersigned agrees that, in the absence of an effective
registration statement with respect to Common Stock issued upon this exercise,
the undersigned is acquiring such Common Stock for investment and not with a
view to distribution thereof and that the certificate or certificates
representing such Common Stock may bear a legend substantially as follows: "The
shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended."
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Dated: Signature guaranteed:
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________________________ the rights represented by the foregoing
Warrant and appoints _________________________ attorney to transfer said rights
on the books of said corporation, with full power of substitution in the
premises.
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Dated: Signature guaranteed:
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatever.
