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EXHIBIT 4.3
Warrant No. 98-3
WARRANT AND WARRANT AGREEMENT
Dated as of November 6, 1998
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THIS WARRANT AND THE SHARES OBTAINABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL SUCH
WARRANT OR SHARES ARE REGISTERED UNDER SUCH ACT OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH
REGISTRATION IS NOT REQUIRED.
CYBERCASH, INC.
WARRANT AND WARRANT AGREEMENT
This certifies that in consideration of the covenants and agreements of the
parties contained in the Operating Agreement dated October 15, 1998, the
adequacy of which consideration is hereby acknowledged, First USA Bank, or its
registered permitted assigns (the "Holder") is entitled to subscribe for and
purchase up to 1,000,000 shares (subject to adjustment as described herein) of
fully paid and nonassessable Common Stock (the "Warrant Shares") of CyberCash,
Inc., a Delaware corporation (the "Company"), upon exercise of this Warrant and
subject to the provisions and upon the terms and conditions hereinafter set
forth.
SECTION 1. Term; Exercise of Warrant. Subject to the terms of
this Warrant, the Holder shall have the right to receive from the Company the
number of fully paid and nonassessable Warrant Shares which the Holder may at
the time be entitled to receive on exercise of such Warrant and payment to the
Company of the Exercise Price (as defined below) then in effect for such Warrant
Shares; provided, however, that such Warrant shall be exercised in minimum
increments of 100,000 shares (as proportionately adjusted for any stock splits,
stock dividends or the like). This Warrant is exercisable commencing at the
opening of business on January 1, 1999 until 5:00 p.m., Eastern time on
September 30, 2003. If not exercised prior to 5:00 p.m., Eastern time on
September 30, 2003, this Warrant shall become void and all rights thereunder and
all rights in respect thereof shall cease as of such time.
This Warrant may be exercised upon surrender to the Company at
its office designated for such purpose (the address of which is set forth in
Section 10 hereof) during normal business hours (9:00 a.m. to 5:00 p.m. Eastern
Time) this Warrant with the form of election to purchase duly filled in and
signed, which signature shall be guaranteed by a bank or trust company having an
office or correspondent in the United States or a broker or dealer which is a
member of a registered securities exchange or the National Association of
Securities Dealers, Inc., and upon payment to the Company of the Exercise Price
(as defined in Section 3), subject to adjustment pursuant to Section 7, for the
number of Warrant Shares in respect of which the Warrant is then exercised.
Payment of the aggregate Exercise Price shall be made in cash or by certified or
official bank check payable to the order of the Company or pursuant to the
cashless exercise provisions set forth in Section 3.
Subject to the provisions of Section 2 hereof, upon such
surrender of this Warrant and payment of the Exercise Price the Company shall
issue and cause to be delivered with all reasonable dispatch to or upon the
written order of the Holder and in such name or names as the Holder may
designate, a certificate or certificates for the number of full Warrant Shares
issuable upon the exercise of such Warrant together with cash as provided in
Section 8;
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provided, however, that if any reclassification, consolidation, merger or lease
or sale of assets is proposed to be effected by the Company as described in
subsection (f) of Section 7 hereof, or a tender offer or an exchange offer for
shares of Common Stock of the Company shall be made, upon such surrender of
Warrant and payment of the Exercise Price as aforesaid, the Company shall, as
soon as possible, but in any event not later than two business days thereafter,
issue and cause to be delivered the full number of Warrant Shares issuable upon
the exercise of such Warrant in the manner described in this sentence together
with cash as provided in Section 8. Such certificate or certificates shall be
deemed to have been issued and any person so designated to be named therein
shall be deemed to have become a holder of record of such Warrant Shares as of
the date of the surrender of such Warrant and payment of the Exercise Price.
The Warrant may be exercised, at the election of the Holder,
either in full or from time to time in part (in minimum increments of 100,000).
In the event that the Warrant is exercised in respect of fewer than all of the
Warrant Shares issuable on such exercise at any time prior to the date of
expiration of the Warrant, a new Warrant will be issued and delivered pursuant
to the provisions of this Section.
All Warrants surrendered upon exercise of Warrants shall be
canceled and disposed of by the Company.
So long as First USA or any assignee or transferee of the
Warrant is a bank holding company or a subsidiary of a bank holding company (a
"Bank Affiliate") as defined in the Bank Holding Company Act of 1956, as
amended, or other applicable banking laws of the United States and the rules and
regulations promulgated thereunder (the "Bank Holding Company Act"), no such
Bank Affiliate shall acquire Common Stock of the Company by exercise of the
Warrant or otherwise, without prior notice to or approval of the Federal Reserve
Board, if after giving effect to such exercise, the Bank Affiliate would own
more than five percent (5%) of the outstanding voting securities of the Company,
or if such exercise or conversion would otherwise violate the Bank Holding
Company Act. Shares of Common Stock may otherwise be acquired in the event that:
(i) the Company shall vote to merger or consolidate with or
into any other person, and after giving effect to such merger or consolidation,
the Bank Affiliate would not own more than 5% of the outstanding voting
securities of the surviving corporation;
(ii) Holder desires to sell shares of Common Stock in
connection with any proposed purchase of Common Stock by one or more other
persons (other than a Bank Affiliate) in which no such person acquires more than
two percent (2%) of the Company's Common Stock; or
(iii) Holder exercises registration rights pursuant to this
Warrant and Warrant Agreement and agrees to sell the Common Stock pursuant to
the registration statement resulting therefrom in a widely dispersed public
offering.
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SECTION 2. Payment of Taxes. The Company will pay all
documentary stamp taxes, if any, attributable to the initial issuance of Warrant
Shares upon the exercise of Warrants.
SECTION 3. Exercise Price. (a) The purchase price for each
share of Common Stock deliverable upon exercise of this Warrant (the "Exercise
Price") shall be determined as follows:
Beginning (9:00 am) Ending (5:00 pm) Exercise Price
January 1, 1999 September 20, 2003 $32.00
(b) In lieu of delivering the Exercise Price as set forth in
subparagraph (a), the Holder may exercise this Warrant by conversion, in whole
or in part (but in increments of not less than 100,000 shares), into shares of
Common Stock, by instructing the Company in writing ("Notice of Conversion") to
deliver to the Holder (without payment by the Holder of any Exercise Price or of
any other cash or consideration) that number of shares of Common Stock equal to
the quotient obtained by dividing:
(i) the value of this Warrant at the time the conversion
right is exercised (determined by subtracting the
aggregate Exercise Price in effect immediately prior
to the exercise of the conversion right from the
aggregate fair market value (as determined in
accordance with Section 7 hereof) of the shares of
Common Stock issuable upon exercise of this Warrant
immediately prior to the exercise of the conversion
right) by
(ii) the current fair market value (as determined in
accordance with Section 7 hereof) of one share of
Common Stock immediately prior to the exercise of the
conversion right,
and multiplying the quotient so obtained by a fraction equal to the portion of
this Warrant which the Holder desires to exercise.
The Notice of Conversion may be given by circling the
appropriate option in the Notice of Exercise attached hereto.
SECTION 4. Mutilated or Missing Warrant Certificates. In case
the Warrant shall be mutilated, lost, stolen or destroyed, the Company shall
issue, in exchange and substitution for and upon cancellation of the mutilated
Warrant, or in lieu of and substitution for the Warrant lost, stolen or
destroyed, a new Warrant of like tenor and representing an equivalent number of
Warrant Shares, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction of such Warrant and indemnity, if
requested, also reasonably satisfactory to it.
SECTION 5. Valid Issuance of Warrant; Reservation of Warrant
Shares.
The execution and delivery of this Warrant and Warrant
Agreement and the issuance and sale of the Common Stock upon exercise of the
Warrant pursuant to its terms (i)
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are within the corporate power and authority of the Company and (ii) have been
duly authorized by all requisite corporate proceedings on the part of the
Company. This Warrant and Warrant Agreement has been duly executed and delivered
by the Company and constitutes a valid and binding agreement of the Company,
enforceable in accordance with its terms, except that (i) such enforcement maybe
subject to bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights and (ii) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought. The capitalization of the
Company as of June 30, 1998 is as set forth in the Company's quarterly report on
Form 10-Q filed with the Securities and Exchange Commission on August 14, 1998.
The Company will at all times reserve and keep available, free
from preemptive rights, out of the aggregate of its authorized but unissued
Common Stock or its authorized and issued Common Stock held in its treasury, for
the purpose of enabling it to satisfy any obligation to issue Warrant Shares
upon exercise of the Warrant, the maximum number of shares of Common Stock which
may then be deliverable upon the exercise of the outstanding Warrant.
The Company or, if appointed, the transfer agent for the
Common Stock (the "Transfer Agent") and every subsequent transfer agent for any
shares of the Company's capital stock issuable upon the exercise of any of the
rights of purchase aforesaid will be irrevocably authorized and directed at all
times to reserve such number of authorized shares as shall be required for such
purpose.
Before taking any action which would cause an adjustment
pursuant to Section 7 hereof to reduce the Exercise Price below the then par
value (if any) of the Warrant Shares, the Company will take any corporate action
which may, in the opinion of its counsel, be necessary in order that the Company
may validly and legally issue fully paid and nonassessable Warrant Shares at the
Exercise Price as so adjusted.
The Company covenants that all Warrant Shares which may be
issued upon exercise of this Warrant will, upon issue, be fully paid,
nonassessable, free of preemptive rights and free from all documentary stamp
taxes, and liens, charges and security interests with respect to the issue
thereof.
SECTION 6. Delivery of Information; Obtaining Stock Exchange
Listings.
(a) The Company will from time to time take
all action which may be necessary so that the Warrant Shares, immediately upon
their issuance upon the exercise of this Warrant, will be listed on the
principal securities exchanges and automated quotation systems within the United
States of America, if any, on which other shares of Common Stock are then
listed.
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(b) During the term of this Warrant and
Warrant Agreement, the Company agrees to provide to First USA (so long as it is
a Holder): (i) copies of any of the following reports filed with the SEC: Annual
Report on Form 10-K, its Quarterly Reports on Form 10-Q and any Current Reports
on Form 8-K; (ii) copies of all press releases issued by the Company or any of
its Subsidiaries; and (iii) copies of any notices or other information the
Company generally makes available or provides to stockholders. The Company's
obligation to provide any such information to First USA shall be satisfied by
the electronic delivery of information to Xxxxxxx Xxxxxx at
xxxxxxxxxxxxx@xxxxxxxx.xxx and/or by facsimile to Xxxxxxx Xxxxxx at (302)
000-0000 (fax) and (000) 000-0000 (phone) or such other electronic address or
telephone number as shall be provided in writing to the Company.
SECTION 7. Adjustment of Exercise Price and Number of Warrant
Shares Issuable. The Exercise Price and the number of Warrant Shares issuable
upon the exercise of the Warrant are subject to adjustment from time to time
upon the occurrence of the events enumerated in this Section 7. For purposes of
this Section 7, "Common Stock" means shares now or hereafter authorized of any
class of common stock of the Company and any other stock of the Company, however
designated, that has the right (subject to any prior rights of any class or
series of preferred stock) to participate in any distribution of the assets or
earnings of the Company without limit as to per share amount.
(a) Adjustment for Change in Common Stock.
If the Company: (i) pays a dividend or makes a distribution on
its Common Stock in shares of its Common Stock; (ii) subdivides its outstanding
shares of Common Stock into a greater number of shares; or (iii) combines its
outstanding shares of Common Stock into a smaller number of shares; then the
Exercise Price in effect immediately prior to such action shall then be adjusted
in accordance with the formula:
E* = E x O
---
A
Where:
E*= the adjusted Exercise Price
E = the current Exercise Price
O = the number of shares of Common Stock outstanding prior to such
action
A = the number of shares of Common Stock outstanding immediately
after such action
In the case of a dividend or distribution the adjustment shall
become effective immediately after the payment date for such dividend or
distribution, or the effective date of such other corporate action including,
but not limited to, a subdivision or combination.
If after an adjustment the Holder upon exercise of the Warrant
may receive shares of two or more classes of capital stock of the Company, the
Company shall determine the allocation of the adjusted Exercise Price between
the classes of capital stock. After such
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allocation, the exercise privilege, the number of shares issuable upon such
exercise, and the Exercise Price of each class of capital stock shall thereafter
be subject to adjustment on terms comparable to those applicable to Common Stock
in this Section 7.
Such adjustment shall be made successively whenever any event
listed above shall occur.
(b) Adjustment for Rights Issue.
If the Company distributes any rights, options or warrants to
all holders of its Common Stock entitling them at any time after the record date
mentioned below to purchase shares of Common Stock at a price per share less
than the Fair Market Value (as defined in Section 7(c)) per share on such record
date relating to such distribution, the Exercise Price in effect immediately
prior to such action shall be adjusted in accordance with the formula:
O +N x P
-----
E* = E x M
--------
O + N
where:
E* = the adjusted Exercise Price.
E = the current Exercise Price.
O = the number of shares of Common Stock outstanding on the record date.
N = the number of additional shares of Common Stock issuable upon exercise
of the rights, options or warrants offered.
P = the exercise price per share of the additional shares issuable upon
exercise of the rights, options or warrants.
M = the Fair Market Value per share of Common Stock on the record date.
The adjustment shall be made successively whenever any such
rights, options or warrants are issued and shall become effective immediately
after the record date for the determination of stockholders entitled to receive
the rights, options or warrants. If at the end of the period during which such
rights, options or warrants are exercisable, not all rights, options or warrants
shall have been exercised, the Exercise Price shall be immediately readjusted to
what it would have been if "N" in the above formula had been the number of
shares actually issued.
Notwithstanding the foregoing, if the Company distributes or
issues rights to all holders of its Common Stock pursuant to a shareholder
rights plan, then no adjustment shall be made pursuant to this Section 7(b) upon
such distribution or issuance if, upon exercise of the Warrant, the Holder
receives the same type and number of unexpired rights it would have received (as
adjusted for any event described in Sections 7(a) or (f)) had it exercised the
Warrant, and been a holder of the shares of Common Stock issuable upon exercise
thereof, prior to the record date for such distribution or issuance.
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(c) Fair Market Value.
"Fair Market Value" per share of Common Stock or any other
security (herein collectively referred to as a "Security") or for any other
asset at any date shall be:
(1) if the Security is registered under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the average of the daily
Market Prices for each business day during the period commencing 30 business
days before such date and ending on the date one day prior to such date or, if
the Security has been registered under the Exchange Act for less than 30
consecutive business days before such date, then the average of the daily Market
Prices for all of the business days before such date for which daily Market
Prices are available. If the Market Price is not determinable for at least 15
business days in such period, the Fair Market Value of the Security shall be
determined as if the Security was not registered under the Exchange Act; or
(2) if the asset or Security is not registered under the
Exchange Act, (i) the value of the asset or Security determined in good faith by
the Board of Directors of the Company and certified in a board resolution, based
on the most recently completed arm's length transaction between the Company and
a person other than an affiliate of the Company in which such determination is
necessary and the closing of which occurs on such date or shall have occurred
within the six months preceding such date, or (ii) if no such transaction shall
have occurred on such date or within such six-month period, the value of the
asset or Security determined pursuant to the procedures set forth in Section
7(h).
The "Market Price" for any Security on any business day means:
(i) if such Security is listed or admitted to trading on any securities
exchange, the closing price, regular way, on such day on the principal exchange
on which such Security is traded, or if no sale takes place on such day, the
average of the closing bid and asked prices on such day, (ii) if such Security
is not then listed or admitted to trading on any securities exchange, the last
reported sale price on such day, or if there is no such last reported sale price
on such day, the average of the closing bid and the asked prices on such day, as
reported by a reputable quotation source designated by the Company, or (iii) if
neither clause (i) nor (ii) is applicable, the average of the reported high bid
and low asked prices on such day, as reported by a reputable quotation service,
or a newspaper of general circulation in the Borough of Manhattan, City of New
York, customarily published on each business day, designated by the Company. If
there are no such prices on a business day, then the Market Price shall not be
determinable for such business day.
(d) When De Minimis Adjustment May Be Deferred.
No adjustment in the Exercise Price need be made unless the
adjustment would require an increase or decrease of at least 1% in the Exercise
Price. Any adjustments that are not made shall be carried forward and taken into
account in any subsequent adjustment.
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All calculations under this Section shall be made to the
nearest cent or to the nearest 1/20th of a share, as the case may be.
(e) When No Adjustment Required.
No adjustment shall be made for a transaction referred to in
subsections (a) or (b) of this Section 7 if Holder is to participate in the
transaction on a basis and with notice that is fair and appropriate in light of
the basis and notice on which holders of Common Stock participate in the
transaction.
No adjustment shall be made for rights to purchase Common
Stock pursuant to a Company plan for reinvestment of dividends or interest.
No adjustment shall be made for a change in the par value of
the Common Stock.
To the extent this Warrant becomes convertible into cash, no
adjustment need be made thereafter as to the cash. Interest will not accrue on
the cash.
(f) Reorganization of Company.
If any reclassification of the Common Stock of the Company or
any consolidation or merger of the Company with another entity, or the sale or
lease of all or substantially all of the Company's assets to another entity
shall be effected in such a way that holders of the Common Stock of the Company
shall be entitled to receive stock, securities or assets with respect to or in
exchange for such Common Stock, then, as a condition precedent to such
reclassification, consolidation, merger, sale or lease, lawful and adequate
provisions shall be made whereby the Holder shall thereafter have the right to
purchase and receive upon the basis and the terms and conditions specified in
this Warrant, including, without limitation, the requirements set forth in
Section 6(b), and in lieu of the shares of Common Stock immediately theretofore
purchasable and receivable upon the exercise of the rights represented hereby,
such shares of stock, securities or assets as may be issued or payable in such
reclassification, consolidation, merger, sale or lease with respect to or in
exchange for the number of shares of Common Stock purchasable and receivable
upon the exercise of the rights represented hereby had such rights been
exercised immediately prior thereto, and in any such case appropriate provision
shall be made with respect to the rights and interests of the Holder to the end
that the provisions hereof (including, without limitation, provisions for
adjustments of the Exercise Price and of the number of shares of Common Stock
purchasable and receivable upon the exercise of the Warrant) shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock, securities
or assets thereafter deliverable upon the exercise hereof. The successor
corporation (if other than the Company) resulting from such reclassification,
consolidation or merger or the corporation purchasing or leasing such assets
shall assume by a supplemental Warrant, executed and mailed or delivered to the
Holder, the obligation to deliver to the Holder such shares of stock, securities
or assets as, in accordance with the foregoing provisions, Holder may be
entitled to purchase.
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If the issuer of securities deliverable upon exercise of the
supplemental Warrant is an affiliate of the formed, surviving, transferee or
lessee corporation, that issuer shall join in the supplemental Warrant.
If this subsection (f) applies, subsections (a) and (b) of
this Section 7 do not apply.
(g) Adjustment in Number of Shares of Common Stock.
Upon each adjustment of the Exercise Price pursuant to this
Section 7, the Warrant outstanding prior to the making of the adjustment in the
Exercise Price shall thereafter evidence the right to receive upon payment of
the adjusted Exercise Price that number of shares of Common Stock (calculated to
the nearest 1/20th of a share) obtained from the following formula:
E*
---
N* = N x E
where:
N* = the adjusted number of Warrant Shares issuable upon exercise of the
Warrant by payment of the adjusted Exercise Price.
N = the number of Warrant Shares previously issuable upon exercise of the
Warrant by payment of the Exercise Price prior to adjustment.
E* = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
(h) Disputes; Fair Market Value Determination.
If a dispute shall at any time arise between the Company and
the Holder with respect to any matters hereunder including adjustments to the
number of shares of Common Stock, the Exercise Price, or a determination as to
Fair Market Value provided for herein, such dispute shall be conclusively
determined by either the Holder and the Company agreeing on a single independent
investment bank of recognized national standing to resolve the dispute or, if
the Holder and the Company cannot agree on a single investment bank after an
additional seven days, each of the Holder and the Company shall appoint an
independent investment bank of recognized national standing with appropriate
experience involving companies comparable to the Company and the dispute shall
be mutually resolved by the two investment banks. If the two investment banks
are not able to reach agreement within 20 days, then they shall within five days
appoint a third independent investment bank of recognized national standing with
appropriate experience involving companies comparable to the Company and the
dispute shall be definitively resolved by such third investment bank within 20
days. Each party shall pay the costs, fees and expenses of its respective
investment bankers and the parties shall split the costs of the third investment
bank.
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SECTION 8. Fractional Interests. The Company shall not be
required to issue fractional Warrant Shares on the exercise of the Warrant. The
number of full Warrant Shares which shall be issuable upon the exercise thereof
shall be computed on the basis of the aggregate number of Warrant Shares
purchasable on exercise of the Warrants so presented. If any fraction of a
Warrant Share would, except for the provisions of this Section 8, be issuable on
the exercise of Warrant (or specified portion thereof), the Company shall pay an
amount in cash equal to the Fair Market Value on the day immediately preceding
the date the Warrant is presented for exercise, multiplied by such fraction.
SECTION 9. Notices to the Holder. Upon any adjustment of the
Exercise Price pursuant to Section 7, the Company shall promptly thereafter (i)
cause to be filed with the Secretary of the Company a certificate setting forth
the Exercise Price after such adjustment and setting forth in reasonable detail
the method of calculation and the facts upon which such calculations are based
and setting forth the number of Warrant Shares (or portion thereof) issuable
after such adjustment in the Exercise Price, upon exercise of this Warrant and
payment of the adjusted Exercise Price, and (ii) cause to be given to the Holder
written notice of such adjustments by first-class mail, postage prepaid. Where
appropriate, such notice may be given in advance and included as a part of the
notice required to be mailed under the other provisions of this Section 9.
In case:
(a) the Company shall authorize the issuance to all holders of
shares of Common Stock of rights, options or warrants to subscribe for
or purchase shares of Common Stock or of any other subscription rights
or warrants; or
(b) the Company shall authorize the distribution to all
holders of shares of Common Stock of evidences of its indebtedness or
assets (other than cash dividends or cash distributions payable out of
earnings or earned surplus or dividends or distributions payable in
shares of Common Stock); or
(c) of any consolidation or merger to which the Company is a
party and for which approval of any shareholders of the Company is
required, or of the conveyance or transfer of all or substantially all
of the properties and assets of the Company, or of any reclassification
or change of Common Stock issuable upon exercise of the Warrant (other
than a change in par value, or from par value to no par value, or from
no par value to par value, or as a result of a subdivision or
combination), or a tender offer or exchange offer for shares of Common
Stock; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; or
(e) the Company proposes to take any action that would require
an adjustment in the Exercise Price pursuant to subsections (a), (b) or
(c) of Section 7 and if the Company does not arrange for the Holder to
participate pursuant to subsection (f)
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of Section 7, or if the Company takes any action that would require a
supplemental Warrant pursuant to subsection (f) of Section 7;
then the Company shall cause to be given to the Holder, prior to the applicable
record date hereinafter specified, or promptly in the case of events for which
there is no record date, by first-class mail, postage prepaid, a written notice
stating (i) the date as of which the holders of record of shares of Common Stock
to be entitled to receive any such rights, options, warrants or distribution are
to be determined, or (ii) the initial expiration date set forth in any tender
offer or exchange offer for shares of Common Stock, or (iii) the date on which
any such consolidation, merger, conveyance, transfer, dissolution, liquidation
or winding up is expected to become effective or consummated, and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange such shares for securities or other property, if any,
deliverable upon such reclassification, consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding up; provided, however, that the
Holder shall not be entitled to receive notice prior to any public announcement
thereof by the Company. The failure to give the notice required by this Section
9 or any defect therein shall not affect the legality or validity of any
distribution, right, option, warrant, consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding up, or the vote upon any action.
Nothing contained in this Warrant shall be construed as
conferring upon the Holder the right to vote or to consent or to receive notice
as shareholders in respect of the meetings of shareholders or the election of
Directors of the Company or any other matter, or any rights whatsoever as
shareholders of the Company.
SECTION 10. Notices to Company and the Holder. Unless
otherwise provided herein, any notice, request, instruction or other document to
be given hereunder by any party to the others shall be in writing and delivered
in person or by courier or by facsimile transmission (with receipt confirmed),
or mailed by certified mail, postage prepaid, return receipt requested (such
mailed notice to be effective on the date such receipt is acknowledged), as
follows:
If to the Company:
CyberCash, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
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With a copy to:
Xxxxx & Xxxxxxx, L.L.P.
000 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxxx Xxxxx, Esquire
Telecopy No.: (000) 000-0000
If to the Holder:
First USA Bank
000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Telecopy No.: (000)-000-0000
With a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others.
SECTION 11. Supplements and Amendments. The Company may not
supplement or amend this Warrant without the prior written approval of the
Holder.
SECTION 12. Successors and Assignment. All the covenants and
provisions of this Warrant by or for the benefit of the Company shall bind and
inure to the benefit of its respective successors and assigns hereunder. This
Warrant is not assignable or transferable by the Holder except in increments of
100,000 Warrant Shares or by operation of law.
SECTION 13. Governing Law. This Warrant shall be deemed to be
a contract made under the laws of the State of Delaware and for all purposes
shall be construed in accordance with the internal laws of said State, excluding
choice of law provisions.
SECTION 14. Benefits of This Warrant. Nothing in this Warrant
shall be construed to give to any person or corporation other than the Company
and the Holder any legal or equitable right, remedy or claim under this Warrant;
but this Warrant shall be for the sole and exclusive benefit of the Company and
the Holder.
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SECTION 15. Demand and Piggy Back Registrations.
(a) Subject to the provisions of this Section 15, one
or more Holders of at least 51% of the Common Stock issuable upon exercise of
all Warrants 98-1, 98-2 and 98-3 (the "Registrable Securities") may make one
request (the "Demand Request") registration for sale under the Securities Act of
the Registrable Securities, provided that such Holders request registration for
sale of a number of shares which represents at least 51% of the total number of
shares of Common Stock held by all Holders on the date of such Demand Request.
The Company shall thereafter, as expeditiously as practicable, use its best
efforts to file with the SEC under the Securities Act of 1933 (the "Securities
Act") a registration statement on the appropriate form covering all Registrable
Securities specified in the Demand Request (the "Registration Statement"). The
Demand Request shall specify the intended methods of disposition thereof and the
information required by Item 507 of Regulation S-K under the Securities Act.
Upon such Demand Request, subject to this Section 15, the Company shall use its
best efforts to promptly effect the registration of such Registrable Securities
under (i) the Securities Act, and (ii) if applicable, the blue sky laws of such
jurisdictions as any Holder of such Registrable Securities requesting such
registration or any underwriter, if any, may reasonably request. The Company
shall be deemed to have effected a Demand Registration if the Registration
Statement relating to such Demand Request is filed with the SEC but the
requesting Holders inform the Company that they desire that the Registration
Statement be withdrawn or abandoned; provided, however, that such withdrawal
does not result from action or inaction on the part of the Company that has
materially and adversely affected the value of such registration to the
participating Holders, or if the Registration Statement is declared effective by
the SEC and remains effective until the earlier of the date on which (i) all the
Registrable Securities subject to such Registration Statement have been disposed
of, (ii) nine months have elapsed from the date of such effectiveness or (iii)
the Registrable Securities are eligible for resale under Securities Act Rule
144(k). If at any time or from time to time during the time period applicable to
the Demand Registration any of the Holders of the Registrable Securities covered
by a Registration Statement desire to sell Registrable Securities in an
underwritten offering, the investment banker or investment bankers that will
manage the offering will be selected by the Holders of at least 51% of the
Registrable Securities included in such offering; provided that the selection of
any such investment banker or investment bankers is subject to the approval and
consent by the Company. The Company shall not be required to file any
Registration Statement pursuant to this Section 15(a) for a deferral period of
up to 120 days if the Board of Directors of the Company in good faith determines
that such registration would interfere with any proposed offering of shares of
the Company's capital stock, pending financing transaction, or acquisition,
corporate reorganization or other significant transaction involving the Company.
(b) If the Company proposes to make a registered public
offering of any of its Common Stock under the Securities Act (except for
offerings on Forms X-0, X-0 or any successor forms), the Company agrees on each
such occasion during the term of this Warrant, subject to the provisions of this
Section 15, to give written notice of the proposed registration to Holder, not
less than 15 days prior to the proposed filing date of the registration
statement, and at the written request of Holder delivered in writing to the
Company within 10 days after the receipt of said notice, the Company agrees,
subject to the provisions of this Section 15, to
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include in the registration statement and offering, and in any underwriting of
the offering, all Warrant Shares as may have been designated in the Holder's
request.
(c) Underwriter Discretion. If a registration in which the
Holder has the right to participate pursuant to this Section 15 is an
underwritten registration on behalf of the Company, and the managing
underwriters advise the Company, that, in their opinion, the number of
securities requested to be included in the registration exceeds the number which
can be sold in the offering, the Company shall allocate the number of shares to
be included in the registration statement as follows: (i) first, all of the
securities of the Company proposed to be sold by the Company, (ii) second,
stockholders, optionholders or warrantholders with registration rights in
existence as of January 1, 1999; and (iii) third, the Common Stock requested to
be sold by Holder and all other requesting Holders of Warrants issued on January
1, 1999, reduced, pro rata, in accordance with the percentage interests in the
Company held by each of them.
(d) Information Required. The Company shall have no obligation
to include shares of Common Stock owned by Holder in a registration statement
pursuant to this Section 15, unless and until the Holder shall have furnished
the Company with all information and statements about or pertaining to Holder in
the reasonable detail and on a timely basis as is reasonably deemed by the
Company to be necessary or appropriate with respect to the preparation of the
registration statement.
(e) Hold-back. In the event that the Company effects an
underwritten public offering of any security, the Holder agrees, if requested by
the managing underwriters, not to effect any public sale or distribution,
including any sale pursuant to Rule 144 under the Securities Act, of any Common
Stock (except as part of the underwritten offering) during the 90-day period
commencing with the effective date of the registration statement for the
offering.
(f) Expenses. If, pursuant to Section 15 hereof, shares of
Common Stock owned by any Holder are included in a registration statement, the
Holder shall pay all transfer taxes, if any, relating to the sale of its shares,
the fees and expenses of its own counsel, and its pro rata portion of any
underwriting discounts or commissions or the equivalent thereof. The Company
agrees to pay all expenses incident to the registration including all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws, underwriting discounts, fees and expenses (other than the
Holder's pro rata portion of any underwriting discounts or commissions or the
equivalent thereof), printing expenses, messenger and delivery expenses, and
fees and expenses of counsel for the Company and all independent certified
public accountants and other persons retained by the Company.
(g) Indemnification. In the event that any shares of Common
Stock owned by a Holder are sold by means of a registration statement pursuant
to this Section 15, the Company agrees to indemnify and hold harmless the
Holder, each of its officers and directors, and each person, if any, who
controls or may control the Holder within the meaning of the Securities Act (the
Holder, its officers and directors., and any other persons being hereinafter
referred to individually as an "Indemnified Person" and collectively as
"Indemnified Persons") from and against all demands, claims, actions or causes
of action, assessments, losses,
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damages, liabilities, costs, and expenses, including, without limitation,
interest, penalties, and reasonable attorneys' fees and disbursements, asserted
against, resulting to, imposed upon or incurred by the Indemnified Person,
directly or indirectly (hereinafter referred to in this Section 15 or, the
singular as a "claim" and in the plural as "claims"), based upon, arising out of
or resulting from any untrue statement of a material fact obtained in the
registration statement or any omission to state therein a material fact
necessary to make the statement made therein, in the light of the circumstances
under which they were made, not misleading, except insofar as the claim is based
upon, rises out of or results from information furnished to the Company in
writing by the Holder for use in connection with the registration statement. The
Holder agrees to indemnify and hold harmless the Company, its officers and
directors, and each person, if any, who controls or may control the Company
within the meaning of the Securities Act (the Company, it's officers and
directors, and any other persons also being hereinafter referred to individually
as an "Indemnified Person" and collectively as "Indemnified Persons") from and
against all claims based upon, arising out of or resulting from any untrue
statement of a material fact contained in the registration statement or any
omission to state therein a material fact necessary in order to make the
statement made therein, in the light of the circumstances under which they were
made, not misleading, to the extent that the claim is based upon, arises out of
or results from information furnished to the Company in writing by the Holder
for use in connection with the registration statement. Promptly after actually
receiving definitive notice of any claim in respect of which an Indemnified
Person may seek indemnification under this Section 15, the Indemnified Person
shall submit written notice thereof to either the Company or the Holder, as the
case may be (sometimes being hereinafter referred to as an "Indemnifying
Person"). The omission of the Indemnified Person to so notify the Indemnifying
Person of any claim shall not relieve the Indemnifying Person from any liability
it may have hereunder except to the extent that (a) the liability was caused or
increased by the omission, or (b) the ability of the Indemnifying Person to
reduce the liability was materially adversely affected by the omission. In
addition, the omission of the Indemnified Person so to notify the Indemnifying
Person of any claim shall not relieve the Indemnifying Person from any liability
it may have otherwise than hereunder. The Indemnifying Person shall have the
right to undertake, by counsel or representatives of its own choosing, the
defense, compromise or settlement (without admitting liability of the
Indemnified Person) of and the claim asserted, the defense, compromise or
settlement to be undertaken at the expense and risk of the Indemnifying Person,
and the Indemnified Person shall have the right to engage separate counsel, at
its own expense, whom counsel for the Indemnifying Person shall keep informed
and consult with in a reasonable manner. In the event the Indemnifying Person
shall elect not to undertake the defense by its own representatives, the
Indemnifying Person shall give prompt written notice of the election to the
Indemnified Person, and the Indemnified Person shall undertake the defense,
compromise or settlement (without admitting liability of the Indemnified Person)
thereof on behalf of and for the account and risk of the Indemnifying Person by
counsel or other representatives designated by the Indemnified Person. In the
event that any claim shall arise out of a transaction or cover any period or
periods wherein the Company and the Holder shall each be liable hereunder for
part of the liability or obligation arising therefrom, then the parties shall,
each choosing its own counsel and bearing its own expenses, defend the claim,
and no settlement or compromise of the claim may be made without the joint
consent or approval of the Company and the Holder. Notwithstanding the
foregoing, no Indemnifying Person shall be obligated hereunder with respect to
amounts paid in settlement of any claim if the settlement is effected without
the consent of the Indemnifying Person (which consent shall not be unreasonably
withheld).
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(h) Termination of Registration Rights. The Company's
obligations and the Holder's rights under this Section 15 shall terminate if, in
the reasonable opinion of the Company, the shares of Common Stock issuable upon
exercise of the Warrant pursuant to Section 3(b) hereof would be eligible for
resale by the Holder under Securities Act Rule 144(k).
SECTION 16. Counterparts. This Warrant and Warrant Agreement
may be executed in any number of counterparts and each of such counterparts
shall for all purposes be deemed to be an original, and all such counterparts
shall together constitute but one and the same instrument.
[Signature Page To Follow]
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Date: November , 1998 CyberCash, Inc.
---
By: /s/ XXXXX X. XXXXXX
------------------------ -------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: Chief Financial Officer
-------------------------------------
RECEIVED BY:
First USA Bank
By:
------------------------ -------------------------------------
Name:
--------------------------------
Title:
-------------------------------
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[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the
right, represented by this Warrant, to receive _________ shares of Common Stock
and herewith tenders (a) payment for such shares to the order of CyberCash, Inc.
in the amount of $_____ in accordance with the terms hereof or (b) elects to
exercise its right of conversion set forth in Section 3(b) of the attached
warrant. The undersigned requests that a certificate for such shares be
registered in the name of _______________________________________, whose address
is _______________________________ and that such shares be delivered to
________________ whose address is _________________________________. If said
number of shares is less than all of the shares of Common Stock purchasable
hereunder, the undersigned requests that a new Warrant representing the
remaining balance of such shares be registered in the name of ______________,
whose address is _________________________, and that such Warrant be delivered
to _________________, whose address is __________________.
The undersigned represents that the aforesaid shares of Common
Stock are being acquired for the account of the undersigned for investment and
not with a view to, or for resale in connection with, the distribution thereof
and that the undersigned has no present intention of distributing or reselling
such shares.
The undersigned is an "accredited investor" as defined in
Securities and Exchange Commission Rule 501(a) pursuant to the Securities Act,
as amended.
Signature:
_______________________________
Date:___________________
Signature Guaranteed:
_________________________
18
