EXHIBIT 4.8
NEITHER THIS WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT (THE "SECURITIES") HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE "1933 ACT") OR QUALIFIED OR REGISTERED UNDER THE CALIFORNIA CORPORATE
SECURITIES LAW OF 1968hpFinancial Printing GroupNEITHER THIS WARRANT NOR THE
SHARES OF STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT (THE "SECURITIES") HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT") OR QUALIFIED
OR REGISTERED UNDER THE CALIFORNIA CORPORATE SECURITIES LAW OF 1968 (THE
"CALIFORNIA LAW") OR THE SECURITIES LAWS OF ANY OTHER STATE ("LAWS"). THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NEITHER SAID SECURITIES NOR ANY
INTEREST THEREIN MAY BE SOLD, OFFERED FOR SALE OR TRANSFERRED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE 1933 ACT AND
QUALIFICATION OR REGISTRATION UNDER THE CALIFORNIA LAW AND OTHER LAWS AS
APPLICABLE, OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH
REGISTRATION AND QUALIFICATION OR REGISTRATION ARE NOT REQUIRED AS TO SAID SALE,
OFFER OR TRANSFER.
CLEARCOMMERCE CORPORATION
WARRANT TO PURCHASE COMMON STOCK
555,183 Shares (subject to adjustment)
This certifies that, for value received, Hewlett-Packard Company, or
permitted assigns ("Holder") is entitled, subject to the terms set forth below,
to purchase from ClearCommerce Corporation (the "Company"), a California
corporation, 555,183 shares of the Common Stock of the Company (the current
terms of which are set forth in the Company's Amended and Restated Articles of
Incorporation filed December 30, 1999 and as corrected on January 11, 2000,
referred to herein as the "Articles"), as constituted on the date of exercise
hereof, upon surrender hereof, at the principal office of the Company referred
to below, with the subscription form attached hereto duly executed, and
simultaneous payment therefor in lawful money of the United States or otherwise
as hereinafter provided, at the Exercise Price as set forth in Section 2 below.
The number, character and Exercise Price of such shares of Common Stock are
subject to adjustment as provided below. The term "Warrant" as used herein
shall include this Warrant and any warrants delivered in substitution or
exchange therefor as provided herein.
1. Term of Warrant.
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(a) Subject to the terms and conditions set forth herein, this
Warrant shall be exercisable, in whole or in part, during the term commencing on
the date of issuance of this Warrant (the "Warrant Issue Date") and ending upon
the later to occur of (i) February 4, 2004 and (ii) a Termination Event, and
shall be void thereafter. A "Termination Event" means the earliest to occur of
the following (A) five (5) trading days after the effective date of a public
offering of the securities of the Company in connection with which all of the
Company's preferred stock converts to common stock (a "Qualified Offering"); (B)
five (5) trading days after the effective date of the initial public offering of
a successor to the Company which is not traded on the Nasdaq or a nationally
recognized stock exchange on the closing date of its Acquisition of the Company;
(C) 90 days after the closing of an Acquisition of the company or any successor
to the Company by a company whose shares are, on the closing date of such
Acquisition, traded on the Nasdaq or a nationally recognized stock exchange (a
"Public Company"), if (but only if) the Company's common stock receives
consideration of at least $10.00 per share (as adjusted for stock splits, stock
dividends, recapitalizations and the like) in connection with such Acquisition;
or (D) if the Company is the target of an Acquisition by a Public Company in
connection with which the holders of the Company's common stock receive
consideration of less than $10.00 per share (as adjusted for stock splits, stock
dividends, recapitalizations and the like), upon the earlier of (1) 90 days
following the delivery of notice from the Company to Holder that stock issued to
each share of the Company's common stock in connection with such Acquisition (or
the shares purchasable with any cash paid to each share of common stock of the
company at the closing of such Acquisition) has at the close of a day of trading
on the Nasdaq or a nationally recognized exchange had a value of at least $10.00
per share, and (2) February 3, 2004. "Acquisition" shall mean (i) a merger or
consolidation of the Company with or into another corporation in which the
Company is not the surviving entity, or a reverse triangular merger in which the
Company
1
is the surviving entity but the shares of the Company's capital stock
outstanding immediately prior to the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash, or
otherwise, or (ii) the sale or transfer of the Company's assets and properties
as, or substantially as, an entirety to any other person or persons; of (iii) a
series of related transactions in which a controlling interest in the Company is
transferred.
2. Exercise Price. The Exercise Price at which this Warrant may be
--------------
exercised shall be $7.07 per share of Common Stock, as adjusted from time to
time pursuant to Section 11 hereof.
3. Exercise of Warrant.
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(a) The purchase rights represented by this Warrant are
exercisable by the Holder in whole or in part, but not for less than One Hundred
Thousand (100,000) shares at a time (or such lesser number of shares which may
then constitute the maximum number purchasable; such number being subject to
adjustment as provided in Section 11 below), at any time, or from time to time,
during the term hereof as described in Section 1 above, by the surrender of this
Warrant and the Notice of Exercise annexed hereto as Schedule A duly completed
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and executed on behalf of the Holder, at the office of the Company (or such
other office or agency of the Company as the Company may designate by notice in
writing to the Holder at the address of the Holder appearing on the books of the
Company), upon payment (i) in cash or by check acceptable to the Company, (ii)
by cancellation by the Holder of indebtedness of the Company to the Holder, or
(iii) by a combination of (i) and (ii), of the purchase price of the shares to
be purchased. Holder may make the election to exercise this Warrant contingent
upon the occurrence of the effectiveness or closing of a Termination Event so
long as such contingency is noted in writing by Holder at the time of surrender.
In lieu of cash exercising this Warrant, the Holder may, at any
time that Holder would be entitled to cash exercise of this Warrant, elect to
receive shares of Common Stock equal to the value of this Warrant (or the
portion thereof being canceled) by surrender of this Warrant at the principal
office of the Company together with notice of such election, in which event the
Company shall issue to the holder hereof a number of shares of Common Stock
computed using the following formula:
D(A-B)
C = ------
A
Where
C = The number of shares of Common Stock to be issued to the holder
of this Warrant.
D = The number of shares of Common Stock purchasable under this
Warrant.
A = The fair market value of one share of the Company's Common
Stock (as determined below).
B = The Exercise Price (as adjusted to the date of such
calculations).
For purposes of this Paragraph 3(a), if the Common Stock is not
traded on the over-the-counter market or on an exchange, the fair market value
shall be as determined in good faith by the Company's Board of Directors. If the
Common Stock is publicly traded on the Nasdaq or on an exchange, the fair market
value shall be deemed to be the average of the closing price of the Common Stock
for the twenty trading days (or such lesser number of days as the Common Stock
has traded publicly) prior to the date on which the Holder exercises the
Warrant. In the event that this Warrant is exercised in connection with an
Acquisition, the fair market value shall be the value per share of Common Stock
(determined in the same manner set forth above) paid by the purchaser of the
Company's assets or capital stock.
(b) This Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for
exercise, and the person entitled to receive the shares of Common Stock issuable
upon such exercise shall be treated for all purposes as the holder of record of
such shares as of the close of business on such date. As promptly as practicable
on or after such date and in any event within ten (10) days thereafter, the
Company at its expense shall issue and deliver to the person or persons entitled
to receive the same a
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certificate or certificates for the number of shares issuable upon such
exercise. In the event that this Warrant is exercised in part, the Company at
its expense will execute and deliver a new Warrant of like tenor exercisable for
the number of shares for which this Warrant shall then remain exercisable. If
not otherwise executed prior to its termination, this Warrant shall
automatically be deemed to have been exercised in accordance with the cashless
exercise provisions of Section 3(a) hereof immediately prior to its termination.
4. No Fractional Shares or Scrip. No fractional shares or scrip
-----------------------------
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise be
entitled, the Company shall issue cash to the Holder in lieu of the fractional
share.
5. Replacement of Warrant. On receipt of evidence reasonably
----------------------
satisfactory to the Company of the loss, theft, destruction, or mutilation of
this Warrant and, in the case of loss, theft, or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and substance to the Company
or, in the case of mutilation, on surrender and cancellation of this Warrant,
the Company at its expense shall execute and deliver, in lieu of this Warrant, a
new warrant of like tenor and amount.
6. Rights of Stockholders. Subject to Sections 9 and 11 of this
----------------------
Warrant, the Holder shall not be entitled to vote or receive dividends or be
deemed the holder of securities of the Company that may at any time be issuable
on the exercise hereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder, as such, any of the rights of a stockholder
of the Company or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or to give or withhold
consent to any corporate action (whether upon any recapitalization, issuance of
stock, reclassification of stock, change of par value, or change of stock to no
par value, consolidation, merger, conveyance, or otherwise) or to receive notice
of meetings, or to receive dividends or subscription rights or otherwise until
the Warrant shall have been exercised and the shares purchasable upon the
exercise hereof shall have been issued, as provided herein. Notwithstanding the
foregoing, nothing contained in this paragraph shall limit any right granted
elsewhere in this Warrant.
7. Transfer of Warrant.
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(a) Transferability and Non-negotiability of Warrant. This
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Warrant may not be transferred or assigned in whole or in part except between
and among Hewlett-Packard Company and its subsidiaries and affiliated companies.
Transfer of this Warrant shall be effected by surrender of this Warrant for
exchange, properly endorsed on the Assignment Form attached hereto as Schedule B
as provided herein.
(b) Exchange of Warrant Upon a Transfer. On surrender of this
-----------------------------------
Warrant for exchange, properly endorsed on the Assignment Form and subject to
the provisions of this Warrant with respect to compliance with the Act and with
the limitations on assignments and transfers and contained in this Section 7,
the Company at its expense shall issue to or on the order of the Holder a new
warrant or warrants of like tenor, in the name of the Holder or as the Holder
(on payment by the Holder of any applicable transfer taxes) may direct, for the
number of shares issuable upon exercise thereof, and shall indicate the transfer
on the Warrant Register. By acceptance of the Warrant so issued, the transferee
shall be bound by all of the terms, conditions, restriction and covenants
applicable to Holder hereunder.
(c) Compliance with Securities Laws.
-------------------------------
(i) The Holder of this Warrant, by acceptance hereof,
acknowledges that this Warrant and the shares to be issued upon exercise hereof
or conversion thereof are being acquired solely for the Holder's own account and
not as a nominee for any other party or with a view to or for sale in connection
with any distribution, and for investment, and that the Holder will not offer,
sell, or otherwise dispose of this Warrant or any shares to be issued upon
exercise hereof or conversion thereof except under circumstances that will not
result in a violation of the Act or any state securities laws. Upon exercise of
this Warrant, the Holder shall, if requested by the Company, confirm in writing,
in a form satisfactory to the Company, that the shares of Common Stock so
purchased are being acquired solely for the Holder's own account and not as a
nominee for any other party, for investment, and not with a view toward
distribution or resale. The Holder is an "accredited investor" within the
meaning of Securities and Exchange Commission Rule 501 of Regulation D.
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(ii) Any warrant issued in replacement or upon
transfer of all or any portion of this Warrant shall bear a legend substantially
identical to the legend appearing at the head of this Warrant.
(iii) All shares of Common Stock issued upon exercise
hereof shall be stamped or imprinted with a legend in substantially the
following form (in addition to any legend required by state securities laws), as
well as any legends required by the Shareholders Agreement:
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, OR
QUALIFIED OR REGISTERED UNDER THE CALIFORNIA CORPORATE SECURITIES LAW
OF 1968 (THE "CALIFORNIA LAW") OR THE SECURITIES LAWS OF ANY OTHER
STATE ("LAWS"). THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND
NEITHER SAID SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD, OFFERED
FOR SALE OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE 1933 ACT AND QUALIFICATION OR
REGISTRATION UNDER THE CALIFORNIA LAW AND OTHER LAWS AS APPLICABLE, OR
AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH
REGISTRATION AND QUALIFICATION OR REGISTRATION ARE NOT REQUIRED AS TO
SAID SALE, OFFER OR TRANSFER.. COPIES OF THE AGREEMENT COVERING THE
PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR TRANSFER OR SALE
MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD HEREOF TO THE SECRETARY OF THE COMPANY AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE COMPANY.
8. Reservation of Stock. The Company covenants that during the period
--------------------
commencing 90 days after the date of this Warrant and continuing throughout the
Term this Warrant is exercisable, the Company will reserve from its authorized
and unissued Common Stock a sufficient number of shares to provide for the
issuance of Common Stock upon the exercise of this Warrant and shares of its
Common Stock for issuance upon conversion of such Common Stock and, from time to
time, will take all steps necessary, if any, to amend the Articles to provide
sufficient reserves of shares of Common Stock issuable upon exercise of the
Warrant and shares of its Common Stock for issuance upon conversion of such
Common Stock. The Company further covenants that all shares that may be issued
upon the exercise of rights represented by this Warrant, upon exercise of the
rights represented by this Warrant and payment of the Exercise Price, all as set
forth herein, will be free from all taxes, liens, and charges in respect of the
issue thereof (other than taxes in respect of any transfer occurring
contemporaneously or otherwise specified herein). The Company agrees that its
issuance of this Warrant shall constitute full authority to its officers who are
charged with the duty of executing stock certificates to execute and issue the
necessary certificates for shares of Common Stock upon the exercise of this
Warrant.
9. Notices.
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(a) Whenever the Exercise Price or number of shares
purchasable hereunder shall be adjusted pursuant to Section 11 hereof, the
Company shall issue a certificate signed by its Chief Financial Officer setting
forth, in reasonable detail, the event requiring the adjustment, the amount of
the adjustment, the method by which such adjustment was calculated and the
Exercise Price and number of shares purchasable hereunder after giving effect to
such adjustment, and shall cause a copy of such certificate to be mailed (by
first class mail, postage prepaid) to the Holder of this Warrant (at Hewlett-
Packard Company, 0000 Xxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, Attn: General
Counsel, or such other address as HP may provide in writing).
(b) In case
(i) the Company shall take a record of the holders
of its Common Stock (or other stock or securities at the time receivable upon
the exercise of this Warrant) for the purpose of entitling
4
them to receive any dividend or other distribution, or any right to subscribe
for or purchase any shares of stock of any class or any other securities, or to
receive any other right; or
(ii) of any capital reorganization of the Company,
any reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance of all
or substantially all of the assets of the Company to another corporation, or
transfer (in one agreement or a series of related agreements) of more than fifty
percent (50%) of the voting power of the Company; or
(iii) of any voluntary dissolution, liquidation of
winding-up of the Company; or
(iv) of the redemption of any of the Company's
capital stock;
then, and in each such case, the Company will mail or cause to be mailed to the
Holder a notice specifying, as the case may be, (A) the date on which a record
is to be taken for the purpose of such dividend, distribution or right, and
stating the amount and character of such dividend, distribution or right, or (B)
the date on which such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation or winding-up is to take place, and the
time, if any is to be fixed, as of which the holders of record of Common Stock
(or such stock or securities at the time receivable upon the exercise of this
Warrant) shall be entitled to exchange their shares of Common Stock (or such
other stock or securities) for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up. Such notice shall be delivered at least
15 days prior to the date therein specified.
(c) All such notices, advices and communications shall be deemed to
have been delivered (i) in the case of personal delivery, on the date of such
delivery, and (ii) in the case of mailing, on the fifth business day following
the date such notice, advice or communication is deposited with a U.S. post
office as registered mail.
10. "Market Stand-Off" Agreement. Holder agrees that, during the period of
----------------------------
duration specified by the Company and an underwriter of its Common Stock or
other securities of the Company, following the effective date of a registration
statement of the Company filed under the Act, Holder shall not, to the extent
requested by the Company and such underwriter, directly or indirectly sell,
offer to sell, contract to sell (including, without limitation, any short sale),
grant any option to purchase or otherwise transfer or dispose of (other than to
donees who agree to be similarly bound) any securities of the Company held by it
at any time during such period except Common Stock included in such
registration; provided, however, that (a) such agreement shall be applicable
only to the first such registration statement of the Company; (b) such market
stand-off time period shall not exceed 180 days; and (c) such agreement shall be
contingent upon the officers of the company signing restrictions no less onerous
than those stated herein. In order to enforce the foregoing covenant, the
Company may impose stop-transfer instructions with respect to the shares of
Common Stock issued upon exercise of this Warrant until the end of such period.
11. Amendments. This Warrant and any term hereof may be changed, waived,
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discharged or terminated only by an instrument in writing signed by the party
against whom enforcement of such change, waiver, discharge or termination is
sought, provided that in the event of transfer of this Warrant in respect of
less than all of the shares issuable upon the exercise hereof, any amendment or
modification of the terms of this Warrant and all warrants issued as a result of
the transfer hereof (the "Transfer Warrants") shall be binding upon and
enforceable against the holder of this Warrant and all Transfer Warrants if
approved by the holder(s) of such warrants representing a majority in interest
of the shares subject to purchase upon exercise of such Warrants of like tenor
then remaining outstanding, unexpired and unexercised.
12. Adjustments. The Exercise Price and the number or character of shares
-----------
purchasable hereunder are subject to adjustment from time to time as follows:
5
11.1 Merger, Sale of Assets, etc. If at any time, while this Warrant,
---------------------------
or any portion thereof, is outstanding and unexpired there shall be (i) a
reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Company with or into another entity in which the Company is
not the surviving entity, or a reverse triangular merger in which the Company is
the surviving entity but the shares of the Company's capital stock outstanding
immediately prior to the merger are converted by virtue of the merger into other
property, whether in the form of securities, cash, or otherwise, or (iii) a sale
or transfer of the Company's properties and assets as, or substantially as, an
entirety to any other person or persons (which person or persons shall, for
purposes of this Warrant, be considered a successor to the Company even if for
other purposes such person or persons would not be deemed a successor) (each, an
"Exchange Event"), then, as a part of such Exchange Event, lawful provision
shall be made so that the holder of this Warrant shall thereafter be entitled to
receive upon proper exercise of this Warrant, during the period specified herein
and upon payment of the Exercise Price then in effect, (A) to the extent the
consideration received by the Company or its shareholders consists of stock or
other securities, the number of shares of stock or other securities of the
successor company resulting from such reorganization, merger, consolidation,
sale or transfer which a holder of the shares deliverable upon exercise of this
Warrant would have been entitled to receive in such Exchange Event if this
Warrant had been exercised immediately before such Exchange Event, and (B) to
the extent that the consideration received by the Company or its shareholders in
connection with such Exchange Event consists of cash or property other than
securities, the number of shares of common stock (or its equivalent) of the
successor company that could be purchased at the fair market value of such
securities on the closing date of the Exchange Event for the total value of the
cash and/or property other than securities to which the Holder would have been
entitled if this Warrant had been exercised immediately prior to the record date
taken in connection with such Exchange Event, in both cases (A) and (B) subject
to further adjustment as provided in this Section 11. The foregoing provisions
of this Section 11.2 shall similarly apply to successive reorganizations,
consolidations, mergers, sales and transfers and to the stock or securities of
any other corporation which are at the time receivable upon the exercise of this
Warrant. If the shares of stock or other securities or property of the successor
corporation resulting from such reorganization, merger, consolidation, sale or
transfer, to which Holder would be entitled upon exercise hereof in lieu of
shares of Common Stock of the Company, are in a form other than cash or
marketable securities, then the value of such consideration shall be determined
in good faith by the Company's Board of Directors. In all events, appropriate
adjustment (as determined in good faith by the Company's Board of Directors)
shall be made in the application of the provisions of this Warrant with respect
to the rights and interests of the Holder after the transaction, to the end that
the provisions of this Warrant shall be applicable after that event, as nearly
as reasonably may be feasible, in relation to any shares or other property
deliverable after that event upon exercise of this Warrant. The Company
represents and warrants that it will take whatever action is necessary to ensure
that any successors are bound by the terms of this Section 11.2.
11.2 Reclassification, etc. If the Company at any time while this
---------------------
Warrant, or any portion thereof, remains outstanding and unexpired shall, by
reclassification of securities or otherwise, change any of the securities as to
which purchase rights under this Warrant exist into the same or a different
number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities which were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change, and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 11.
11.3 Split, Subdivision or Combination of Shares. If the Company at any
-------------------------------------------
time while this Warrant, or any portion thereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which purchase
rights under this Warrant exist, into a different number of securities of the
same class, this Warrant shall thereafter represent the right to acquire the
number of such shares as would have been issuable as the result of the split,
subdivision or combination with respect to the shares that were subject to the
purchase rights under this Warrant immediately prior to the split, subdivision
or combination, and the Exercise Price shall be proportionately divided in the
case of a split or subdivision or proportionately multiplied in the case of a
combination.
11.4 Adjustments for Dividends in Stock or Other Securities or
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Property. If, while this Warrant, or any portion hereof, remains outstanding and
--------
unexpired, the holders of the securities as to which purchase rights under this
Warrant exist at the time shall have received, or, on or after the record date
fixed for the determination of eligible Stockholders, shall have become entitled
to receive, without payment therefor, other or
6
additional stock or other securities or property (other than cash) of the
Company by way of dividend, then and in each case, this Warrant shall represent
the right to acquire, in addition to the number of shares of the security
receivable upon exercise of this Warrant, and without payment of any additional
consideration therefor, the amount of such other or additional stock or other
securities or property (other than cash) of the Company which Holder would hold
on the date of such exercise had it been the holder of record of the security
receivable upon exercise of this Warrant on the date hereof and had thereafter,
during the period from the date hereof to and including the date of such
exercise, retained such shares and/or all other additional stock available by it
as aforesaid during such period, giving effect to all adjustments called for
during such period by the provisions of this Section 11.
11.5 Certificate as to Adjustments. Upon the occurrence of each
-----------------------------
adjustment or readjustment pursuant to this Section 11, the Company at its
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to the Holder a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Company shall, upon the written
request, at any time, of the Holder, furnish or cause to be furnished to the
Holder a like certificate setting forth: (i) such adjustments and readjustments;
(ii) the Exercise Price at the time in effect; and (iii) the number of shares
and the amount, if any, of other property which at the time would be received
upon the exercise of this Warrant.
11.6 No Impairment. The Company will not, by any voluntary action,
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avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Section 11 and in
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holder against impairment.
13. Investor Rights Agreement. Upon exercise of this Warrant, Holder
-------------------------
shall become a party to, and thereby receive the rights and benefits granted
under, that certain Third Amendment and Restated Investors' Rights Agreement
attached hereto as Schedule C. The Company represents and warrants that it will
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use commercially reasonable efforts to ensure that all necessary actions to
authorize the addition of Holder and the securities to be issued upon the
exercise of this Warrant to the Registration Rights Agreement are taken for the
purpose of treating the shares issued upon the exercise of this Warrant as
Registrable Securities for the limited purpose of providing the Holder with the
Company Registration Rights and S-3 Rights provided for in Sections 2.3 and 2.12
thereof.
14. Governing Law. This Warrant shall be governed by and construed
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under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
15. Counterparts. this Warrant may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
16. Venue. All disputes arising out of this Warrant shall be subject
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to the jurisdiction of the state and federal courts located in the
County of Santa Clara, California.
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IN WITNESS WHEREOF, CLEARCOMMERCE CORPORATION has caused this Warrant
to be executed by its officer thereunto duly authorized.
Dated: February 4, 2000
CLEARCOMMERCE CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
__________________________________
Xxxxxxx Xxxxxxx, Vice President and CFO
ACKNOWLEDGED AND AGREED:
HEWLETT-PACKARD COMPANY
By: /s/ Xxxxxxx Xxxx
------------------------
Name: Xxxxxxx Xxxx
----------------------
Title: SSO Controller
---------------------
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SCHEDULE A
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NOTICE OF EXERCISE
To: CLEARCOMMERCE CORPORATION
(1) The undersigned hereby elects to purchase
_______ shares of Common Stock of ClearCommerce Corporation, pursuant to the
terms of the attached Warrant, and tenders herewith payment of the purchase
price for such shares in full.
(2) In exercising this Warrant, the undersigned
hereby confirms and acknowledges that the shares of Common Stock are being
acquired solely for the account of the undersigned and not as a nominee for any
other party or with a view to or in connection with any distribution or resale,
and for investment, and that the undersigned will not offer, sell, or otherwise
dispose of any such shares of Common Stock except under circumstances that will
not result in a violation of the Securities Act of 1933, as amended, or any
state securities laws.
(3) By signing below, the undersigned agrees to
enter into, as a holder of shares of Common Stock, the Company's Shareholders
Agreement identified in the Warrant, as the same is in effect on the date
hereof.
(4) Please issue a certificate or certificates
representing said shares of Common Stock in the name of the undersigned or in
such other name as is specified below:
----------------------------------
[Name]
----------------------------------
[Name]
(5) Please issue a new Warrant for the unexercised
portion of the attached Warrant in the name of the undersigned or in such other
name as is specified below:
----------------------------------
[Name]
----------------------------------
-------------------- ----------------------------------
[Date] [Signature]
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SCHEDULE B
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under the within Warrant, with respect to the number
of shares of Common Stock set forth below:
Name of Assignee Address No. of Shares
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and does hereby irrevocably constitute and appoint ____________________ Attorney
to make such transfer on the books of _____________ maintained for the purpose,
with full power of substitution in the premises.
The undersigned also represents that, by acceptance of the assignment
hereunder, the Assignee acknowledges that: (i) the rights under this Warrant so
assigned, and the shares of stock to be issued upon exercise of the replacement
warrant to be issued to the Assignee thereupon, are being acquired for
investment, and the Assignee will not offer, sell or otherwise dispose of this
Warrant or any shares of stock to be issued upon exercise hereof or conversion
thereof except under circumstances which will not result in a violation of the
Securities Act of 1933, as amended, or any state securities laws; (ii) the
Assignee shall be bound by all of the terms, conditions, restriction and
covenants applicable to Holder under this Warrant; and (iii) upon exercise of
this Warrant, the Assignee shall, if requested by the Company, confirm in
writing, in a form satisfactory to the Company, that the shares of stock so
purchased are being acquired for investment and not with a view toward
distribution or resale.
DATED: _____________________
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Signature of Holder
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(Witness)
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SCHEDULE C
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THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
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