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EXHIBIT 10.27
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT
AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM SUCH
REGISTRATION REQUIREMENTS FOR SUCH LAWS AS MAY THEN BE IN EFFECT, OR AN OPINION
OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED.
WARRANT TO PURCHASE SHARES
OF COMMON STOCK
Company: First Virtual Corporation (the "Company"), and any
corporation that shall succeed to the obligations
of the Company under this Warrant.
Number of Shares: 125,000
Class of Stock: Common Stock
Initial Warrant Price: $8.00 per share
Expiration Date: March 1, 2003
Date of Grant: March 12, 1998
THIS CERTIFIES THAT, for value received, Xxxxxxxxx & Xxxxx Guaranty
Finance, LLC, a California limited liability company, or nominees, is entitled
to purchase the above number (as adjusted pursuant to Section 5 hereof) of fully
paid and nonassessable shares of the above Class of Stock of the Company at the
Initial Warrant Price above (as adjusted pursuant to Section 5 hereof), subject
to the provisions and upon the terms and conditions set forth herein.
1. Definitions.
As used herein, the following terms, unless the context otherwise
requires, shall have the following meanings:
(a) "Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations thereunder, as shall
be in effect at the time.
(b) "Average Amount Unborrowed" shall mean Five Million Dollars
($5,000,000) minus the average principal balance outstanding under the Loan
Agreement from the date of the Loan Agreement through December 31, 1998.
(c) "Common Stock" shall mean shares of the presently authorized
common stock of the Company and any stock into which such common stock may
hereafter by exchanged.
(d) "Eligible Shares" shall mean fifty percent (50%) of the
Number of Shares Holder is originally entitled to purchase (125,000), as that
Number of Shares is adjusted pursuant to Section 5.
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(e) "Holder" shall mean any person who shall at the time be the
holder of this Warrant.
(f) "Loan Agreement" shall mean that Loan and Security Agreement
between the Company, as Debtor, and Holder, as Secured Party dated as of even
date herewith.
(g) "Shares" shall mean the shares of the Class of Stock that the
Holder is entitled to purchase upon exercise of this Warrant, as adjusted
pursuant to Section 5 hereof.
(h) "Warrant Price" shall mean the Initial Warrant Price at which
this Warrant may be exercised, as adjusted pursuant to Section 5 hereof.
2. Exercisability, Duration and Term of Warrant.
2.1. Repurchase Right. A portion of the purchase rights under
this Warrant may be repurchased by the Company (the "Repurchase Right") at any
time after December 31, 1998 and before January 15, 1999, if less than
$5,000,000 of principal is outstanding on one or more days beginning on the date
of the Loan Agreement and until December 31, 1998, as further described herein.
(a) The number of shares subject to the Repurchase Right (the
"Repurchasable Shares") shall be equal to the product of [A] Eligible Shares,
times [B] Average Amount Unborrowed, divided by [C] $5,000,000, as those terms
are defined herein.
(b) The Company may elect to exercise its Repurchase Right as to
Repurchasable Shares by giving written notice to Holder and paying Holder a fee
equal to one cent ($0.01) for each Repurchaseable Share the Company elects to
repurchase, at any time after December 31, 1998 and before January 15, 1999 (the
"Election Notice").
(c) Upon receipt by Holder of an Election Notice, Holder will
surrender this Warrant at the principal office of Company, and a new Warrant
(with the same Date of Grant as the Date of Grant hereof) representing the
portion of the Shares with respect to which this Warrant shall not then have
been subject to an election to repurchase shall also be issued to the Holder
within such thirty (30) day period.
2.2. Term. The purchase right represented by this Warrant, that
is not subject to the Repurchase Right, is exercisable, in whole or in part, on
or before the Expiration Date. The purchase right for the shares represented by
this Warrant that are subject, or may be subject, to the Repurchase Right
pursuant to Section 2.1(a) above may not be exercised prior to January 16, 1999,
which date is the date following the expiration of the Repurchase Right.
2.3 Automatic Repurchase Prior to Expiration of Repurchase Right.
To the extent that the Repurchase Right is not exercised by the Company on or
prior to January 15, 1999, then the Repurchase Right shall be deemed
automatically exercised pursuant to this Section 2 immediately prior to the
expiration of the Repurchase Right. To the extent that the Repurchase Right is
exercised in accordance with this Section 2, the Company will pay Holder a fee
of one cent ($0.01) for each Repurchaseable Share repurchased and issue a
replacement Warrant to the Holder for the remaining number of Shares subject to
the purchase rights represented by this Warrant.
