1
EXHIBIT 4.3
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE.
THIS WARRANT AND ANY OF SUCH SHARES MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT RELATING TO SUCH TRANSACTION UNDER
THE ACT AND ALL OTHER APPLICABLE SECURITIES LAWS OR PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION PROVISIONS OF THE ACT AND OTHER
APPLICABLE SECURITIES LAWS.
COMMON STOCK WARRANT
WARRANT TO PURCHASE SHARES OF STOCK
OF ONLINE RESOURCES & COMMUNICATIONS CORPORATION
Date of Issuance:
THIS CERTIFIES that, for value received, , , or registered assigns,
(the "holder") is entitled to purchase, subject to the provisions of this
warrant, from Online Resources & Communications Corporation, a Delaware
corporation (the "Company"), at the price hereinafter set forth, that number of
shares of the one one hundredth cent ($0.0001) par value Common Stock of the
Company as determined in accordance with the provisions of Article VI hereof.
This warrant is hereinafter referred to as the "Warrant" and the shares of
Preferred Stock issuable pursuant to the terms hereof are hereinafter sometimes
referred to as "Warrant Shares."
ARTICLE I
CERTAIN DEFINITIONS
For all purposes of this Warrant, unless the context otherwise
requires, the following terms shall have the following respective meanings:
"Act": the Securities Act of 1933, as amended, or any similar
federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect at the
time.
"Common Stock": the Company's authorized shares of Common Stock,
one one hundredth cent ($.0001) par value per share, as such shares
existed on the date of issuance of this Warrant.
"Commission": the Securities and Exchange Commission, or any
other federal agency then administering the Act.
"Company": Online Resources & Communications Corporation, a
Delaware corporation, located at 0000 Xxxxx Xxxxxx Xxxxx, XxXxxx,
Xxxxxxxx 00000 and any
2
other corporation assuming or required to assume this Warrant
pursuant to Article VIII.
"Person": any individual, corporation, partnership, trust,
unincorporated organization and any government, and any political
subdivision, instrumentality or agency thereof.
"Purchase Price": the purchase price for any Warrant Share
purchasable under this Warrant.
"Warrant Office": see Section 3.1.
"Warrant Shares": the shares of Common Stock purchasable by the
holder of this Warrant upon the exercise of this Warrant.
ARTICLE II
EXERCISE OF WARRANT
2.1 Method of Exercise. To exercise this Warrant in whole or in part
at anytime and from time to time, prior to its expiration as determined in
Article IX hereof, the holder hereof shall deliver to the Company, at the
Warrant Office designated pursuant to Section 3.1: (a) a written notice, in
substantially the form of the Subscription Notice attached hereto as Exhibit
2.1, of such holder's election to exercise this Warrant, which notice shall
specify the number of shares of Common Stock to be purchased; (b) a check
payable to the order of the Company in an amount equal to the Purchase Price as
set forth in Section 5.1 hereof for the number of shares of Common Stock being
purchased; and (c) this Warrant. The Company shall, as promptly as practicable
and in any event within fourteen (14) days thereafter, execute and deliver or
cause to be executed and delivered, in accordance with said notice, a
certificate or certificates representing the aggregate number of shares of
Common Stock specified in said notice. The stock certificate or certificates so
delivered shall be in denominations of shares as may be specified in said
notice and shall be issued in the name of the holder or such other name as
shall be designated in said notice. At the time of delivery of the certificate
or certificates, appropriate notation will be made on this Warrant designating
the number of shares purchased and this Warrant shall then be returned to the
holder if this Warrant has been exercised in part. The Company shall pay all
expenses, taxes and other charges payable in connection with the preparation,
issuance and delivery of stock certificates, except that, in case stock
certificates shall be registered in a name or names other than the name of the
holder of this Warrant, funds sufficient to pay all stock transfer taxes which
shall be payable upon the issuance of stock certificates shall be paid by the
holder hereof at the time of delivering the notice of exercise mentioned above
or promptly upon receipt of a written request of the Company for payment.
2.2 Shares to be Fully Paid and Nonassessable. All shares of Common
Stock issued upon the exercise of this Warrant shall be validly issued, fully
paid and nonassessable.
2.3 No Fractional Shares to be Issued. The Company shall not be
required upon any exercise of this Warrant to issue a certificate representing
any fraction of a share of Common Stock.
2
3
2.4 Legend on Warrant Shares. Each certificate for shares initially
issued upon exercise of this Warrant, unless at the time of exercise such
shares are registered under the Act, shall bear a legend substantially similar
to the following:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or the securities laws of any state. They may not be
sold, transferred, assigned, pledged, hypothecated, encumbered,
or otherwise disposed of except pursuant to an effective
registration statement relating to such transaction under the
Act and all other applicable securities laws or pursuant to an
exemption from the registration provisions of the Act and other
applicable securities laws.
Any certificate issued at any time in exchange or substitution for
any certificate bearing such legend (except a new certificate issued upon
completion of a public distribution pursuant to a registration statement under
the Act of the securities represented thereby) shall also bear a legend
substantially similar to the foregoing, unless, in the opinion of counsel to
the Company, the securities represented thereby need no longer be subject to
the restrictions on transferability. The provisions of Article IV shall be
binding upon all subsequent holders of this Warrant.
2.5 Acknowledgment of Continuing Obligation. The Company will, at the
time of any exercise of this Warrant in whole or in part, upon request of the
holder hereof, acknowledge in writing its continuing obligation to such holder
in respect of any rights to which the holder shall continue to be entitled
after exercise in accordance with this Warrant; provided, however, that the
failure of the holder to make any such request shall not affect the continuing
obligation of the Company to the holder in respect of such rights.
3
4
ARTICLE III
WARRANT OFFICE; TRANSFER, DIVISION OR COMBINATION OF WARRANTS
3.1 Warrant Office. The Company shall maintain an office for certain
purposes specified herein (the "Warrant Office"), which office shall initially
be the Company's location set forth in Article I, and may subsequently be such
other office of the Company or of any transfer agent of the Common Stock in the
continental United States as to which written notice has previously been given
to all holders of Warrants.
3.2 Ownership of Warrant. The Company may deem and treat the Person
in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any
notice to the contrary, until presentation of this Warrant for registration of
transfer as provided in this Article III.
3.3 Transfer of Warrant. The Company agrees to maintain at the
Warrant Office books for the registration of permitted transfers of this
Warrant. Subject to the provisions of Article IV, this Warrant and all rights
hereunder are transferable, in whole or in part, on the books at that office,
upon surrender of this Warrant at that office, together with a written
assignment of this Warrant duly executed by the holder hereof or his duly
authorized agent or attorney and funds sufficient to pay any transfer taxes
payable upon the making of the transfer. Subject to Article IV, upon surrender
and payment, the Company shall execute and deliver a new Warrant in the name of
the assignee, note thereon the number of Warrant Shares theretofore purchased
under this Warrant, and this Warrant shall promptly be cancelled and a notation
of that cancellation made on the books of the Warrant Office. A Warrant may be
exercised by a new holder for the purchase of shares of Preferred Stock without
having a new warrant issued.
3.4 Division or Combination of Warrants. This Warrant may not be
divided or combined with any other Warrant or warrants.
3.5 Expenses of Delivery of Warrants. The Company shall pay all
expenses, taxes (other than transfer taxes), and other charges payable in
connection with the preparation, issuance and delivery of new Warrants
hereunder.
ARTICLE IV
RESTRICTIONS ON TRANSFER
4.1 Restrictions on Transfer. Notwithstanding any provisions
contained in this Warrant to the contrary, this Warrant shall not be
exercisable or transferable except upon the conditions specified in this
Article IV, which conditions are intended, among other things, to insure
compliance with the provisions of the Act in respect of the exercise or
transfer of the Warrant. The holder of this Warrant, by acceptance hereof,
agrees that it will not transfer this Warrant prior to delivery to the Company
of any required opinion of the holder's counsel (as the opinion and counsel are
described in Section 4.2).
4.2 Opinion of Counsel. In connection with any transfer of this
Warrant, the following provisions shall apply:
4
5
(a) If, in the opinion of counsel acceptable to the Company,
a proposed transfer of this Warrant may be effected without registration of
this Warrant under the Act, the holder of this Warrant shall be entitled to
transfer this Warrant in accordance with the proposed method of disposition;
provided, however, that if the method of disposition would, in the opinion of
such counsel, require that the Company take any action or execute and file with
the Commission or deliver to the holder or any other person any form or
document in order to establish the entitlement of the holder to take advantage
of such method of disposition, the Company agrees, at the cost of the holder,
to promptly take any necessary action or execute and file or deliver any
necessary form or document. Notwithstanding the foregoing, in no event will the
Company be obligated to effect a registration under the Act so as to permit the
proposed transfer of this Warrant nor take any action which will result in more
than one transfer of this Warrant within each calendar year.
(b) If, in the opinion of such counsel, the proposed transfer
of this Warrant may not be effected without registration of this Warrant under
the Act, the holder of this Warrant shall not be entitled to transfer this
Warrant until registration is effective.
ARTICLE V
PURCHASE PRICE
5.1 Determination of Purchase Price. The Purchase Price for any
Warrant Share purchasable hereunder shall be equal to $2.75 per share;
provided, however, if the Company shall divide its outstanding shares of Common
Stock by stock split, stock dividend or otherwise, the Purchase Price shall
proportionately decrease and if the Company shall combine its outstanding
shares of Common Stock by stock combination, reverse split or otherwise, the
Purchase Price shall proportionately increase.
5.2 Notice to Holder. Upon request, the Company will provide the
holder hereof with written notice of the current Purchase Price existing under
this Warrant.
5
6
ARTICLE VI
NUMBER OF WARRANT SHARES
The initial number of Warrant Shares issuable hereunder shall be
________; provided, however, if the Company shall divide its outstanding shares
of Common Stock by stock split, stock dividend or otherwise, the number of
Warrant Shares then issuable hereunder shall proportionately increase and if
the Company shall combine its outstanding shares of Common Stock by stock
combination, reverse split or otherwise, the number of Warrant Shares then
issuable hereunder shall proportionately decrease.
ARTICLE VII
RECLASSIFICATION, REORGANIZATION OR MERGER
In case of any reclassification, capital reorganization or other
change of outstanding shares of Common Stock of the Company, or in case of any
consolidation or merger of the Company with or into another corporation (other
than a merger with a subsidiary in which merger the Company is the continuing
corporation or which does not result in any reclassification, capital
reorganization or other change of outstanding shares of Common Stock), the
Company shall cause effective provision to be made so that the holder hereof
shall have the right thereafter by exercising this Warrant to purchase the kind
and amount of shares of stock and other securities and property receivable upon
such reclassification, capital reorganization or other change, consolidation or
merger, by a holder of the number of shares of Common Stock which might have
been purchased upon exercise of this Warrant immediately prior to such
reclassification, change, consolidation or merger. Any such provision shall
include provision for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments, herein provided, of the Purchase Price and the
number of Warrant Shares purchasable and receivable upon the exercise of this
Warrant. The foregoing provisions of this Article VII shall similarly apply to
successive reclassification, capital reorganizations and changes of shares of
Common Stock and to successive consolidations and mergers.
ARTICLE VIII
DISTRIBUTIONS, LIQUIDATION OR DISSOLUTION
8.1 Certain Distributions. In case the Company shall, at any time,
prior to the Expiration Date set forth in Article IX hereof, make any
distribution of its assets to holders of its capital stock as a partial
liquidation distribution or by way of return of capital, other than as a
dividend payable out of earnings or any surplus legally available for dividends
under the laws of the State of Delaware, then the holder, upon the exercise of
this Warrant prior to any such distribution but after the date of record for
the determination of those holders of capital stock entitled to such
distribution of assets, shall be entitled to receive, in addition to the shares
of Common Stock issuable on such exercise, upon such distribution the amount of
such assets (or at the option of the
6
7
Company a sum equal to the value thereof at the time of such distribution to
holders of capital stock as such value is determined by the Board of Directors
of the Company in good faith), which would have been payable to the holder had
it been the holder of record of such shares of capital stock on the record date
for the determination of those holders of capital stock entitled to such
distribution.
8.2 Dissolution or Liquidation. In case the Company shall, at any
time prior to the Expiration Date set forth in Article IX hereof, dissolve,
liquidate or wind up its affairs, the holder shall be entitled, upon the
exercise of this Warrant and prior to any such distribution in dissolution of
liquidation, to receive on such exercise, in lieu of the shares of Common Stock
which the holder would have been entitled to receive, the same kind and amount
of assets as would have been distributed or paid to the holder upon any such
dissolution, liquidation or winding up, with respect to such shares of Common
Stock had the holder been the holder of record of such shares of Common Stock
on the record date for the determination of those holders of Common Stock
entitled to receive any such liquidation distribution.
ARTICLE IX
EXPIRATION
This Warrant shall terminate at the earliest of (i) 5:00 p.m. Eastern
time on December 31, 2000, (ii) the effective date of any merger or
consolidation of the Company in a transaction in which the shares issued and
issuable to stockholders of the Company, including those persons who are
entitled to become stockholders upon conversion and exercise of any securities
of the Company, represent less than fifty percent of the total shares issued
and issuable by the surviving corporation or its ultimate parent corporation in
such merger or consolidation or (iii) the date upon which the Company transfers
substantially all of its assets incidental to sale or reorganization of the
Company. The Company shall give, by first class mail, postage prepaid,
addressed to the holder, at the address of the holder as shown on the books of
the Company at least twenty (20) days prior written notice of (i) the date on
which the books of the Company shall close for determining rights to vote in
respect of any merger, consolidation or transfer of assets which would result
in the expiration of this Warrant and (ii) in reference to a merger,
consolidation, or transfer of assets resulting in expiration of this Warrant,
the date on which the holders of Common Stock shall be entitled to exchange
their shares for securities or property resulting from such merger,
consolidation or transfer of assets.
ARTICLE X
CERTAIN COVENANTS OF THE COMPANY
The Company covenants and agrees that it will reserve and set apart
and have at all times, free from pre-emptive rights, a number of shares of
Common Stock or other securities or property deliverable upon the exercise of
this Warrant sufficient to enable it at any time to fulfill all its obligations
hereunder.
7
8
ARTICLE XI
MISCELLANEOUS
11.1 Entire Agreement. This Warrant contains the entire agreement
between the holder hereof and the Company with respect to the purchase of the
Warrant Shares and supersedes all prior arrangements or understandings with
respect thereto.
11.2 Waiver and Amendment. This Warrant is one of several Common
Stock Warrants. Any term or provision of this Warrant may be waived at any time
and any term or provision of this Warrant may be amended or supplemented at any
time by agreement of the holders of those Common Stock Warrants representing
more than fifty percent (50%) of all Warrant Shares then issuable upon exercise
of all outstanding Common Stock Warrants and the Company, except that any
waiver of any term or condition, or any amendment or supplementation, of this
Warrant must be in writing and except that no change in the number of shares
issuable upon exercise, the rights in liquidation or distribution, the purchase
price upon exercise and the provisions of this Section 11.2 shall be effective
without the written consent of each Warrant holder affected thereby. A waiver
of any breach or failure to enforce any of the terms or conditions of this
Warrant shall not in any way affect, limit or waive a party's rights hereunder
at any time to enforce strict compliance thereafter with any term or condition
of this Warrant.
11.3 Illegality. In the event that any one or more of the provisions
contained in this Warrant shall be determined to be invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in any other respect and the remaining
provisions of this Warrant shall not, at the election of the party for whom the
benefit of the provision exists, be in any way impaired.
11.4 Filing of Warrant. A copy of this Warrant shall be filed in the
records of the Company.
11.5 Notice. Any notice or other document required or permitted to be
given or delivered to the holder hereof shall be delivered, including by a
nationally recognized overnight courier service, or sent by certified or
registered mail, to each such holder at the last address shown on the books of
the Company maintained at the Warrant Office for the registration of, and the
registration of transfer of, the Warrant or at any more recent address of which
any holder hereof shall have notified the Company in writing. Any notice or
other document required or permitted to be given or delivered to the Company,
shall be delivered, including by a nationally recognized overnight courier
service, at, or sent by certified or registered mail to, the Warrant Office,
attention: President, or such other address within the United States of America
as shall have been furnished by the Company to the holder hereof.
11.6 Limitation of Liability; Not Stockholders. No provision of this
Warrant shall be construed as conferring upon the holder hereof the right to
vote, consent, receive dividends or receive notice other than as herein
expressly provided in respect of meetings of stockholders for the election of
directors of the Company or any other matter whatsoever as a stockholder of the
Company. No provision hereof, in the absence of affirmative action by the
holder hereof to purchase Warrant Shares, and no enumeration herein of the
rights or privileges of the holder hereof, shall give rise to any liability of
such holder for the purchase price of any Warrant Shares or as a stockholder of
the Company, whether such liability is asserted by the Company or by creditors
of the Company.
8
9
11.7 Loss, Destruction, Etc. of Warrant. Upon receipt of evidence
satisfactory to the Company of the loss, theft, mutilation or destruction of
the Warrant, and in the case of any such loss, theft or destruction, upon
delivery of a bond of indemnity in such form and amount as shall be reasonably
satisfactory to the Company, or in the event of such mutilation, upon surrender
and cancellation of the Warrant, the Company will make and deliver a new
Warrant, of like tenor, in lieu of such lost, stolen, destroyed or mutilated
Warrant. Any Warrant issued under the provisions of this Section 11.7 in lieu
of any Warrant alleged to be lost, destroyed or stolen, or in lieu of any
mutilated Warrant, shall constitute an original contractual obligation on the
part of the Company.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
in its name by its Chairman and CEO and its corporate seal to be impressed
hereon and attested by its Secretary.
THE COMPANY:
ONLINE RESOURCES &
COMMUNICATIONS CORPORATION
By:
-------------------------------
Chairman and CEO
Attest:
---------------------
Secretary
[Corporate Seal]
9
10
EXHIBIT 2.1
WARRANT
SUBSCRIPTION NOTICE
Dated:________________
The undersigned hereby irrevocably elects to exercise its right to
purchase shares of the Common Stock, $.0001 par value per share, of Online
Resources & Communications Corporation, such right being pursuant to a Warrant
dated ___________________________________, 1996, and as issued to the
undersigned by Online Resources & Communications Corporation, and remits
herewith the sum of $_______________ in payment for same in accordance with the
Purchase Price specified in such Warrant. INSTRUCTIONS FOR REGISTRATION OF
STOCK
Name
-----------------------------------------------------
(Please typewrite or print in block letters)
Address
--------------------------------------------------
Signature
-------------------------
Shares Heretofore Purchased
Under Warrant
---------------------
