UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
(RULE 13D-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
RULE 13D-1(A) AND AMENDMENTS THERETO FILED
PURSUANT TO RULE 13D-2(A).
(AMENDMENT NO. 6)*
FIRST VIRTUAL HOLDINGS INCORPORATED
- --------------------------------------------------------------------------------
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.001 PER SHARE
- --------------------------------------------------------------------------------
(Title of Class of Securities)
337486 10 4
---------------------------------
(CUSIP Number)
- --------------------------------------------------------------------------------
RONALD FISHER STEPHEN A. GRANT, ESQ.
SOFTBANK HOLDINGS INC. SULLIVAN & CROMWELL
10 LANGLEY ROAD, SUITE 403 125 BROAD STREET
NEWTON CENTER, MA 02159 NEW YORK, NY 10004
(617) 928-9300 (212) 558-4000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
AUGUST 20, 1998
---------------------------------
(Date of Event which Requires Filing of this Statement)
(Continued on following pages)
(Page 1 of 8 Pages)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
|_|.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page. The information required on the
remainder of this cover page shall not be deemed to be "filed" for the purpose
of Section 18 of the Securities Exchange Act of 1934 (the "Act") or otherwise
subject to the liabilities of that section of the Act but shall be subject to
all other provisions of the Act (however, see the Notes). SEC 1746(12-91)
<PAGE>
SCHEDULE 13D
- ------------------------- ------------------------------
CUSIP NO. 337486 10 4 PAGE 2 OF 8 PAGES
-------------- -------- --------
- ------------------------- ------------------------------
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
SOFTBANK HOLDINGS INC.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) |_|
(B) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
19,510,524 (1)
NUMBER OF ------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 3,321,217 (2)
EACH ------------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 19,510,524 (1)
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,831,741 (1)(2)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
73.1% (1)(2)
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
(1) See Item 5.
(2) See Item 6.
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ------------------------- ------------------------------
CUSIP NO. 337486 10 4 PAGE 3 OF 8 PAGES
-------------- -------- --------
- ------------------------- ------------------------------
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
SOFTBANK CORPORATION
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) |_|
(B) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
JAPAN
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
20,390,524 (1)
NUMBER OF ------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 3,321,217 (2)
EACH ------------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 20,390,524 (1)
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
23,711,741 (1)(2)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
73.9% (1)(2)
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC, CO
- --------------------------------------------------------------------------------
(1) See Item 5.
(2) See Item 6.
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ------------------------- ------------------------------
CUSIP NO. 337486 10 4 PAGE 4 OF 8 PAGES
-------------- -------- --------
- ------------------------- ------------------------------
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
SOFTBANK TECHNOLOGY VENTURES IV L.P.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) |_|
(B) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
9,755,262 (1)
NUMBER OF ------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 3,321,217 (2)
EACH ------------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 9,755,262 (1)
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,076,479 (1)(2)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
41.9% (1)(2)
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- --------------------------------------------------------------------------------
(1) See Item 5.
(2) See Item 6.
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ------------------------- ------------------------------
CUSIP NO. 337486 10 4 PAGE 5 OF 8 PAGES
-------------- -------- --------
- ------------------------- ------------------------------
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
MASAYOSHI SON
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) |_|
(B) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
JAPAN
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
20,390,524 (1)
NUMBER OF ------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 3,321,217 (2)
EACH ------------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 20,390,524 (1)
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
23,711,741 (1)(2)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
73.9% (1)(2)
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
(1) See Item 5.
(2) See Item 6.
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ------------------------- ------------------------------
CUSIP NO. 337486 10 4 PAGE 6 OF 8 PAGES
-------------- -------- --------
- ------------------------- ------------------------------
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
STV IV LLC
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) |_|
(B) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
9,755,262 (1)
NUMBER OF ------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 3,321,217 (2)
EACH ------------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 9,755,262 (1)
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,076,479 (1)(2)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
41.9% (1)(2)
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
- --------------------------------------------------------------------------------
(1) See Item 5.
(2) See Item 6.
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
- ------------------------- ------------------------------
CUSIP NO. 337486 10 4 PAGE 7 OF 8 PAGES
-------------- -------- --------
- ------------------------- ------------------------------
SOFTBANK Holdings, SOFTBANK Technology, SOFTBANK, Son, and STV hereby
amend and supplement the Statement on Schedule 13D originally filed by the
Reporting Persons on May 11, 1998, as amended on June 4, 1998, June 15, 1998,
June 23, 1998, June 29, 1998 and August 24, 1998 (as amended, the "Statement"),
with respect to the Common Stock, par value $0.001 per share (the "Common
Stock"), of First Virtual Holdings Incorporated, a Delaware corporation (the
"Company").
The descriptions contained in this Statement of certain agreements and
documents are qualified in their entirety by reference to the complete texts of
such agreements and documents, which have been filed as exhibits to the Schedule
13D, as amended and supplemented, and incorporated by reference herein.
Capitalized terms used, but not defined, herein shall have the meanings ascribed
to them in the Statement.
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 is hereby amended and supplemented by incorporation of the
information set forth in Item 6 with respect to the Epub Voting Agreement (as
defined herein).
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 is hereby amended and supplemented by the addition of the
following:
By virtue of the Epub Voting Agreement and the proxies delivered
thereunder described in Item 6, pursuant to which Lee H. Stein, Paymentech and
First USA have agreed with SOFTBANK Holdings and SOFTBANK Technology to vote
their shares in furtherance of certain mutual agreements, SOFTBANK Holdings,
SOFTBANK Technology, SOFTBANK, Son and STV may be deemed to have shared power to
vote the Capital Stock over which Lee H. Stein, Paymentech and First USA have or
share the power to vote. As of June 30, 1998, the aggregate number of shares
beneficially owned by Lee H. Stein, Paymentech and First USA was approximately
3,321,217, representing 10.9% of the outstanding Capital Stock of the Company.
As a consequence, SOFTBANK Holdings, SOFTBANK Technology, SOFTBANK and STV may
be deemed to have shared voting power with respect to such 3,321,217 shares of
Common Stock. As a result of the foregoing: (A) SOFTBANK Technology and STV may
be deemed to be the beneficial owner of an aggregate of 13,076,479 shares of
Common Stock, comprising 41.9% of the Common Stock (based on the number of
shares of Common Stock outstanding as of June 30, 1998, as disclosed by the
Company in its Quarterly Report on Form 10Q for the fiscal quarter ended June
30, 1998, filed on August 3, 1998, and calculated as provided by Rule 13d-3
under the Exchange Act); (B) SOFTBANK Holdings may be deemed to be the
beneficial owner of an aggregate of 22,831,741 shares of Common Stock,
comprising 73.1% of the Common Stock (based on the number of shares of Common
Stock outstanding as of June 30, 1998, as disclosed by the Company in its
Quarterly Report on Form 10Q for the fiscal quarter ended June 30, 1998, filed
on August 3, 1998, and calculated as provided by Rule 13d-3 under the Exchange
Act); and (C) SOFTBANK and Son may be deemed to be the beneficial owner of
23,711,741 shares of Common Stock, comprising 73.9% of the Common Stock (based
on the number of shares of Common Stock outstanding as of June 30, 1998, as
disclosed by the Company in its Quarterly Report on Form 10Q for the fiscal
quarter ended June 30, 1998, filed on August 3, 1998, and calculated as provied
by Rule 13d-3 under the Exchange Act).
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Item 6 is hereby amended and supplemented by incorporation of the
following:
In connection with the execution of the Plan of Reorganization,
SOFTBANK Holdings and SOFTBANK Technology entered into a Voting Agreement, dated
as of August 20, 1998 (the "Epub Voting Agreement"), with Epub, Lee H. Stein,
Paymentech and First USA. Each party thereto agreed to vote all shares of
Capital Stock over which it has or shares voting power in favor of approval and
adoption of the Plan of Reorganization and approval of the merger contemplated
therein and in favor of any other actions contemplated by the Plan of
Reorganization or required in furtherance of the merger contemplated therein
which are submitted to a vote of the stockholders of the Company. In the event
that a majority of the shares of Common Stock represented and voting at a
meeting of Company stockholders, other than shares held by Lee H. Stein,
SOFTBANK Holdings, SOFTBANK Technology, Paymentech and First USA and their
respective affiliates, are voted against the approval and adoption of the Plan
of Reorganization and approval of the merger contemplated therein, the voting
obligation of each of Lee H. Stein, SOFTBANK Holdings, SOFTBANK Technology,
Paymentech and First USA will be without further force or effect, and each of
Lee H. Stein, SOFTBANK Holdings, SOFTBANK Technology, Paymentech and First USA
may exercise its full discretion in voting its shares of Common Stock. Each of
Lee H. Stein, SOFTBANK Holdings, SOFTBANK Technology, Paymentech and First USA
delivered to the Board of Directors of Epub irrevocable proxies to vote all of
their shares of Common Stock beneficially owned by them together with any
acquired by them in any capacity after the date thereof, in the manner and with
respect to the matters set forth in the Epub Voting Agreement.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Item 7 is hereby amended and supplemented by the addition of the
following:
Exhibit O Voting Agreement, dated as of August 20, 1998,
between Epub, SOFTBANK Holdings, SOFTBANK Technology,
Lee H. Stein, Paymentech and First USA.
<PAGE>
- ------------------------- ------------------------------
CUSIP NO. 337486 10 4 PAGE 8 OF 8 PAGES
-------------- -------- --------
- ------------------------- ------------------------------
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
August 31, 1998 SOFTBANK HOLDINGS INC.
By: /s/ Ronald D. Fisher
------------------------------
Name: Ronald D. Fisher
Title: Vice Chairman
SOFTBANK TECHNOLOGY VENTURES IV L.P.
By: STV IV LLC
Its General Partner
By: /s/ Gary Rieschel
--------------------------
Name: Gary Rieschel
Title: Executive Managing Director
SOFTBANK CORPORATION
By: /s/ Ronald D. Fisher
------------------------------
Name: Ronald D. Fisher
Title: Attorney-in-Fact
MASAYOSHI SON
By: /s/ Ronald D. Fisher
------------------------------
Name: Ronald D. Fisher
Title: Attorney-in-Fact
STV IV LLC
By: /s/ Gary Rieschel
------------------------------
Name: Gary Rieschel
Title: Executive Managing Director
Exhibit O
VOTING AGREEMENT
This Voting Agreement ("Agreement") is made and entered into as of
August 20, 1998, between Email Publishing Inc., a Delaware corporation ("EPub"),
and the undersigned stockholder ("Stockholder") of First Virtual Holdings
Incorporated, a Delaware corporation (the "Company").
RECITALS
A. Concurrently with the execution of this Agreement, EPub, the
Company, EPub Holdings Inc., a Delaware corporation and a wholly-owned
subsidiary of the Company ("Sub"), and certain other parties are entering into
an Agreement and Plan of Reorganization (the "Reorganization Agreement") which
provides for the merger (the "Merger") of Sub with and into EPub. Pursuant to
the Merger, shares of capital stock of EPub will be converted into Common Stock
of the Company on the basis described in the Reorganization Agreement.
B. The Stockholder is the record holder and beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), of such number of shares of the outstanding Common Stock of
the Company as is indicated on the signature page of this Agreement (the
"Shares").
C. As a material inducement to enter into the Reorganization Agreement,
EPub desires the Stockholder to agree, and the Stockholder is willing to agree,
to vote the Shares and any other such shares of capital stock of the Company in
favor of consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Agreement to Vote Shares; Additional Purchases.
1.1 Agreement to Vote Shares. Except as set forth in the following
sentence, at every meeting of the stockholders of the Company called with
respect to the following, and at every adjournment thereof, Stockholder shall
vote the Shares and any New Shares (as hereinafter defined) in favor of approval
and adoption of the Reorganization Agreement and approval of the Merger and in
favor of any other actions contemplated by the Reorganization Agreement or
required in furtherance of the Merger which are submitted to a vote of the
stockholders of the Company, including a proposal to increase the authorized
shares of Common Stock of the Company. Notwithstanding the foregoing, in the
event that a majority of the shares of Common Stock of the Company represented
and voting at any such meeting of stockholders of the Company, other than shares
held by SOFTBANK Holdings Inc., SOFTBANK Technology Ventures IV, L.P., Lee H.
<PAGE>
Stein, Paymentech Inc., First USA Financial Corp. and their respective
affiliates are voted against approval and adoption of the Reorganization
Agreement and approval of the Merger (a "Negative Stockholder Vote"), the voting
obligations set forth in this Section 1.1 shall be without further force or
effect, and the Stockholder shall determine in its sole discretion the manner in
which to vote its Shares and any New Shares.
1.2 Additional Purchases. Stockholder agrees that any shares of
Common Stock of the Company that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership after the execution of this
Agreement and prior to the date of termination of this Agreement ("New Shares")
shall be subject to the terms and conditions of this Agreement to the same
extent as if they constituted Shares.
2. Proxy. Concurrently with the execution of this Agreement,
Stockholder agrees to deliver to EPub a proxy in the form attached hereto as
Exhibit A (the "Proxy"), which shall be revocable only in the event of a
Negative Stockholder Vote, with the total number of shares of capital stock of
the Company beneficially owned (as such term is defined in Rule 13d-3 under the
Exchange Act) by Stockholder set forth therein.
3. Representations and Warranties of the Stockholder. Stockholder (i)
is the beneficial owner of the Shares, which at the date hereof are free and
clear of any liens, claims, options, charges or other encumbrances; (ii) does
not beneficially own any shares of capital stock of the Company other than the
Shares (excluding shares as to which Stockholder currently disclaims beneficial
ownership in accordance with applicable law); and (iii) has full power and
authority to make, enter into and carry out the terms of this Agreement.
4. Additional Documents. Stockholder and EPub hereby covenant and agree
to execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of EPub or Stockholder, as the case may be, to carry out the
intent of this Agreement.
5. Limitation on Transfer. Stockholder covenants and agrees that, prior
to the record date fixed for persons entitled to receive notice of, and the vote
at, a meeting of stockholders of the Company at which approval of the
Reorganization Agreement and the Merger is to be considered, Stockholder will
not, directly or indirectly, sell or otherwise transfer its voting rights with
respect to, any Shares or New Shares unless and until the transferee shall have
executed a counterpart of this Voting Agreement and a proxy in the form attached
hereto as Exhibit A and thereby agreed to hold such Shares or New Shares subject
to all of the terms and conditions of this Voting Agreement.
6. Termination. This Agreement shall terminate and shall have no
further force or effect as of the earlier to occur of (i) such date and time as
the Merger shall become effective in accordance with the terms and provisions of
the Reorganization Agreement or (ii) such date and time as the Reorganization
Agreement shall have been terminated pursuant to Section 11 thereof.
-2-
<PAGE>
7. Miscellaneous.
7.1 Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, then the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
7.2 Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without prior written consent of the other party.
7.3 Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
7.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that EPub will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to EPub upon any such violation, EPub shall
have the right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to EPub at law or in equity.
7.5 Notices. All notices and other communications required or
permitted hereunder shall be in writing, shall be effective when given, and
shall in any event be deemed to be given upon receipt or, if earlier, (a) five
(5) days after deposit with the U.S. Postal Service or other applicable postal
service, if delivered by first class mail, postage prepaid, (b) upon delivery,
if delivered by hand, (c) one business day after the business day of deposit
with Federal Express or similar overnight courier, freight prepaid or (d) one
business day after the business day of facsimile transmission, if delivered by
facsimile transmission with copy by first class mail, postage prepaid, and shall
be addressed to the intended recipient as set forth below:
If to EPub: Email Publishing Inc.
6685 Gunpark Drive East, Suite 240
Boulder, Colorado 80301
Attn: Andrew Currie
-3-
<PAGE>
If to the Stockholder: To the address for notice set forth on the
last page hereof.
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall only be
effective upon receipt.
7.6 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
Delaware (without regard to the principles of conflict of laws thereof).
7.7 Entire Agreement. This Agreement and the Proxy contain the
entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
7.8 Counterparts. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
EMAIL PUBLISHING INC. STOCKHOLDER:
By: /s/ Adam Curie By: /s/ Gary E. Rieschel
------------------------------- --------------------------------------
Name: Name of Stockholder: SOFTBANK Technology
---------------------------- Ventures IV, L.P.
Title: By: STV IV, L.P.
----------------------------
Stockholder's Address for Notice:
-----------------------------------------
-----------------------------------------
-----------------------------------------
Shares of Common Stock of the Company
beneficially owned by the Stockholder:
shares
-----------
[SIGNATURE PAGE TO VOTING AGREEMENT]
-5-
<PAGE>
EXHIBIT A
IRREVOCABLE PROXY
The undersigned Stockholder of First Virtual Holdings Incorporated, a
Delaware corporation (the "Company"), hereby appoints the directors on the Board
of Directors of Email Publishing Inc., a Delaware corporation ("EPub"), and each
of them, as the sole and exclusive attorneys and proxies of the undersigned,
with full power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to the shares of Common Stock of the Company
beneficially owned by the undersigned, which shares are listed on the final page
of this Proxy (the "Shares"), and any and all other shares or securities issued
or issuable in respect thereof or acquired by the undersigned on or after the
date hereof, until such time as that certain Agreement and Plan of
Reorganization dated as of August 20, 1998 (the "Reorganization Agreement"),
among EPub, the Company, EPub Holdings Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Sub"), and certain other parties, shall
be terminated in accordance with its terms or the Merger (as defined in the
Reorganization Agreement) is effective. Upon the execution hereof, all prior
proxies given by the undersigned with respect to the Shares and any and all
other shares or securities issued or issuable in respect thereof or acquired by
the undersigned on or after the date hereof shall be revoked and no subsequent
proxies will be given in a manner inconsistent herewith, except as set forth in
the following paragraph.
Except as set forth in the following sentence, this proxy is
irrevocable, is couple with an interest and is granted pursuant to the Voting
Agreement dated as of August 20, 1998 between EPub and the undersigned
Stockholder (the "Voting Agreement"), and is granted in consideration of EPub
entering into the Reorganization Agreement. This proxy may be revoked by the
Stockholder by delivering a duly executed proxy to the Company or by voting in
person at any meeting of stockholders of the Company or any adjournment thereof,
but only in the event of a Negative Stockholder Vote (as such term is defined in
the Voting Agreement). Except in the event of a Negative Stockholder Vote, the
attorneys and proxies named above will be empowered at any time prior to
termination of the Reorganization Agreement to exercise all voting rights of the
undersigned at every annual, special or adjourned meeting of the stockholders of
the Company, in favor of approval of the Merger and approval and adoption of the
Reorganization Agreement and in favor of any other actions contemplated by the
Reorganization Agreement or required in furtherance of the Merger which are
submitted to a vote of the stockholders of the Company. The undersigned
Stockholder may vote the Shares on all other matters in its sole discretion.
<PAGE>
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: , 1998
------------
STOCKHOLDER:
Signature of Stockholder: /s/ Gary E. Rieschel
-----------------------------------------
Name of Stockholder: SOFTBANK Technology Ventures IV, L.P.
By: STV IV, L.P.
Shares of Common Stock Beneficially Owned
- -------------------
[PROXY]
-2-
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
EMAIL PUBLISHING INC. STOCKHOLDER:
By: /s/ Adam Curie By: /s/ Ronald D. Fisher
-------------------------- -------------------------------------------
Name: Name of Stockholder: SOFTBANK Holdings, Inc.
------------------------
Title: Stockholder's Address for Notice:
-----------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
Shares of Common Stock of the Company
beneficially owned by the Stockholder:
shares
------------
[SIGNATURE PAGE TO VOTING AGREEMENT]
-3-
<PAGE>
EXHIBIT A
IRREVOCABLE PROXY
The undersigned Stockholder of First Virtual Holdings Incorporated, a
Delaware corporation (the "Company"), hereby appoints the directors on the Board
of Directors of Email Publishing Inc., a Delaware corporation ("EPub"), and each
of them, as the sole and exclusive attorneys and proxies of the undersigned,
with full power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to the shares of Common Stock of the Company
beneficially owned by the undersigned, which shares are listed on the final page
of this Proxy (the "Shares"), and any and all other shares or securities issued
or issuable in respect thereof or acquired by the undersigned on or after the
date hereof, until such time as that certain Agreement and Plan of
Reorganization dated as of August 20, 1998 (the "Reorganization Agreement"),
among EPub, the Company, EPub Holdings Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Sub"), and certain other parties, shall
be terminated in accordance with its terms or the Merger (as defined in the
Reorganization Agreement) is effective. Upon the execution hereof, all prior
proxies given by the undersigned with respect to the Shares and any and all
other shares or securities issued or issuable in respect thereof or acquired by
the undersigned on or after the date hereof shall be revoked and no subsequent
proxies will be given in a manner inconsistent herewith, except as set forth in
the following paragraph.
Except as set forth in the following sentence, this proxy is
irrevocable, is couple with an interest and is granted pursuant to the Voting
Agreement dated as of August 20, 1998 between EPub and the undersigned
Stockholder (the "Voting Agreement"), and is granted in consideration of EPub
entering into the Reorganization Agreement. This proxy may be revoked by the
Stockholder by delivering a duly executed proxy to the Company or by voting in
person at any meeting of stockholders of the Company or any adjournment thereof,
but only in the event of a Negative Stockholder Vote (as such term is defined in
the Voting Agreement). Except in the event of a Negative Stockholder Vote, the
attorneys and proxies named above will be empowered at any time prior to
termination of the Reorganization Agreement to exercise all voting rights of the
undersigned at every annual, special or adjourned meeting of the stockholders of
the Company, in favor of approval of the Merger and approval and adoption of the
Reorganization Agreement and in favor of any other actions contemplated by the
Reorganization Agreement or required in furtherance of the Merger which are
submitted to a vote of the stockholders of the Company. The undersigned
Stockholder may vote the Shares on all other matters in its sole discretion.
<PAGE>
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: , 1998
---------------
STOCKHOLDER:
Signature of Stockholder: /s/ Ronald D. Fisher
-------------------------------------
Name of Stockholder: SOFTBANK Holdings, Inc.
Shares of Common Stock Beneficially Owned
- -------------------
[PROXY]
-2-
