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. 4)*
FIRST VIRTUAL HOLDINGS INCORPORATED
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(Name of Issuer)
COMMON STOCK, PAR VALUE $0.001 PER SHARE
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(Title of Class of Securities)
337486 10 4
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(CUSIP Number)
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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
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
JUNE 23, 1998
-----------------------------------------
(Date of Event which Requires Filing of this Statement)
(Continued on following pages)
(Page 1 of 10 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
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CUSIP NO. 337486 10 4 PAGE 2 OF 10 PAGES
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
SOFTBANK HOLDINGS INC.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 19,510,524 (1)
OWNED BY ------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON 0
WITH ------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
19,510,524 (1)
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
19,510,524 (1)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
63.1% (1)
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14 TYPE OF REPORTING PERSON*
CO
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(1) See Item 5.
*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.
SCHEDULE 13D
<PAGE>
SCHEDULE 13D
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CUSIP NO. 337486 10 4 PAGE 3 OF 10 PAGES
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
SOFTBANK TECHNOLOGY VENTURES IV L.P.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 9,755,262 (1)
OWNED BY ------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON 0
WITH ------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
9,755,262 (1)
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,755,262 (1)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.5%
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14 TYPE OF REPORTING PERSON*
PN
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(1) See Item 5.
*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
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CUSIP NO. 337486 10 4 PAGE 4 OF 10 PAGES
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- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
SOFTBANK CORPORATION
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
AF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
JAPAN
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 19,510,524 (1)
OWNED BY ------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON 0
WITH ------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
19,510,524 (1)
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
19,510,524 (1)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
63.1% (1)
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14 TYPE OF REPORTING PERSON*
HC, CO
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(1) See Item 5.
*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
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CUSIP NO. 337486 10 4 PAGE 5 OF 10 PAGES
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
MASAYOSHI SON
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
AF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
JAPAN
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 19,510,524 (1)
OWNED BY ------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON 0
WITH ------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
19,510,524 (1)
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
19,510,524 (1)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
63.1% (1)(2)
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14 TYPE OF REPORTING PERSON*
IN
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(1) See Item 5.
*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
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CUSIP NO. 337486 10 4 PAGE 6 OF 10 PAGES
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
STV IV LLC
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
AF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 9,755,262 (1)
OWNED BY ------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON 0
WITH ------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
9,755,262 (1)
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,755,262 (1)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.5% (1)
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14 TYPE OF REPORTING PERSON*
OO
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(1) See Item 5.
*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>
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CUSIP NO. 337486 10 4 PAGE 7 OF 10 PAGES
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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 and
June 23, 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 1. SECURITY AND ISSUER.
The second sentence of Item 1 is hereby amended and restated as
follows:
The principal executive offices of the Company are located at 4104
Sorrento Valley Boulevard, Suite 200, San Diego, California 92121.
ITEM 4. PURPOSE OF TRANSACTION.
The transactions contemplated in the Purchase Agreement, the
Supplementary Purchase Agreement, the Option Agreement, the Promissory Note and
Stock Purchase Agreement, the Conversion Agreement, the Loan Agreement and the
Stock Purchase Agreement (as defined herein) were consummated on June 25, 1998.
See Item 5.
Item 4 is also amended and supplemented by incorporation of the
information set forth in Item 6 with respect to the Stock Purchase Agreement and
the Assignment Agreement (as defined herein).
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 is hereby amended and restated as follows:
(a) AND (b). SOFTBANK Technology.
SOFTBANK Technology is the beneficial owner of 9,755,262 shares of
Common Stock consisting of (i) 4,583,334 shares of Common Stock that it acquired
from the Company pursuant to the Purchase Agreement, (ii) 312,500 shares of
Common Stock that it acquired from the Company pursuant to the Supplementary
Purchase Agreement, (iii) 2,979,158 shares that it acquired after exercising the
Options to purchase Preferred Shares pursuant to the Option Agreement and
conversion of such Preferred Shares into shares of Common Stock pursuant to the
Conversion Agreement, (iv) 600,000 shares of Common Stock that it acquired from
SOFTBANK Holdings upon consummation of the transactions contemplated by the
Promissory Note and Stock Purchase Agreement and (v) 1,280,270 shares that it
acquired upon conversion of the 50% interest in each of the Promissory Notes
assigned to it pursuant to the Assignment Agreement. As a consequence of the
consummation of the transactions contemplated by the Purchase Agreement, the
Supplementary Purchase Agreement, the Option Agreement, the Assignment Agreement
and the Conversion Agreement, SOFTBANK Technology has sole voting power and sole
dispositive power with respect to 9,755,262 shares, comprising approximately
31.5% of the Common Stock (based on the number of shares of Common Stock
outstanding as of April 30, 1998, as disclosed by the Company in its proxy
statement, dated June 4, 1998 (the "Proxy Statement"), and calculated as
provided by Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")). See Item 6.
STV.
As a general partner of SOFTBANK Technology, STV may be deemed to be
the beneficial owner of 9,755,262 shares of Common Stock, comprising
approximately 31.5% of the Common Stock (based on the number of shares of Common
Stock outstanding as of April 30, 1998, as disclosed by the Company in the Proxy
Statement, and calculated as provided by Rule 13d-3 under the Exchange Act). As
a consequence of the consummation of the transactions contemplated by the
Purchase Agreement, the Supplementary Purchase Agreement, the Option Agreement,
the Assignment Agreement
<PAGE>
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CUSIP NO. 337486 10 4 PAGE 8 OF 10 PAGES
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and the Conversion Agreement, STV will have the sole voting power and sole
dispositive power with respect to 9,755,262 shares of Common Stock. See Item 6.
SOFTBANK Holdings.
As the sole equityholder of STV, SOFTBANK Holdings may be deemed to be
the beneficial owner of 9,755,262 shares of Common Stock and to have sole voting
power and sole dispositive power with respect to such shares of Common Stock. In
addition, SOFTBANK Holdings is the beneficial owner of (i) 4,583,333 shares of
Common Stock that it acquired from the Company pursuant to the Purchase
Agreement, (ii) 312,500 shares of Common Stock that it acquired from the Company
pursuant to the Supplementary Purchase Agreement, (iii) 2,979,158 shares of
Common Stock that it acquired after exercising the Options to Purchase Preferred
Shares pursuant to the Option Agreement and conversion of such Preferred Shares
into Common Stock pursuant to the Conversion Agreement, (iv) 600,000 shares of
Common Stock that it acquired pursuant to the Promissory Note and Stock Purchase
Agreement and (v) 1,280,271 shares of Common Stock that it acquired pursuant to
the Promissory Note and Stock Purchase Agreement and conversion of the
Promissory Notes into Common Stock pursuant to the Conversion Agreement. As a
result of the foregoing, SOFTBANK Holdings may be deemed to be the beneficial
owner of an aggregate of 19,510,524 shares of Common Stock, comprising
approximately 63.1% of the Common Stock (based on the number of shares of Common
Stock outstanding as of April 30, 1998, as disclosed by the Company in the Proxy
Statement, and calculated as provided by Rule 13d-3 under the Exchange Act), and
may be deemed to have sole voting power and sole dispositive power with respect
to such shares of Common Stock. See Item 6.
SOFTBANK; Son.
As the parent of SOFTBANK Holdings and the direct and indirect owner of
an approximate 50% interest of SOFTBANK, respectively, SOFTBANK and Son may each
be deemed to be the beneficial owner of an aggregate of 19,510,524 shares of
Common Stock, comprising approximately 63.1% of the Common Stock (based on the
number of shares of Common Stock outstanding as of April 30,1998, as disclosed
by the Company in the Proxy Statement, and calculated as provided by Rule 13d-3
under the Exchange Act) and may be deemed to have sole voting power and sole
dispositive power with respect to such shares of Common Stock. See Item 6.
(c). None of the Reporting Persons, nor, to the best knowledge of the
Reporting Persons, any of the persons listed on Schedule 1, 2 or 3 hereto, has
effected any transactions in the securities of the Company during the past 60
days other than those transactions described in this Statement.
(d) AND (e). Not applicable.
Pursuant to the Conversion Agreement, the actual number of shares of
Common Stock that were issued upon conversion of the Promissory Notes was equal
to (i) the principal amount thereof ($1,200,000) and accrued interest thereon to
the date of conversion ($336,324.71) divided by (ii) $0.60.
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:
SOFTBANK Holdings, SOFTBANK Technology and E*TRADE Group, Inc.
("E*TRADE") entered into a Stock Purchase Agreement, dated as of June 23, 1998
(the "Stock Purchase Agreement"), pursuant to which on June 24, 1998 SOFTBANK
Holdings and SOFTBANK Technology sold 416,667 and 416,666 shares of Common
Stock, respectively, to E*TRADE for a purchase price of $0.60 per share.
In connection with the Promissory Notes purchased pursuant to the
Promissory Note and Stock Purchase Agreement, SOFTBANK Holdings entered into an
Assignment Agreement, dated as of June 24, 1998 (the "Assignment Agreement")
(attached hereto as Exhibit M), with SOFTBANK Technology. Under the Assignment
Agreement, SOFTBANK Holdings assigned a
<PAGE>
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CUSIP NO. 337486 10 4 PAGE 9 OF 10 PAGES
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50% interest in each Promissory Note purchased by SOFTBANK Holdings
pursuant to the Promissory Note and Stock Purchase Agreement, including, without
limitation, the right to receive shares of the Company's Common Stock from the
Company upon conversion of the principal of, and accrued interest on, the
Promissory Notes as provided by the Conversion Agreement.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Item 7 is hereby amended and supplemented by the addition of the
following:
Exhibit L Stock Purchase Agreement, dated as of June 23, 1998, by and
among SOFTBANK Holdings, SOFTBANK Technology and E*TRADE
Group, Inc.
Exhibit M Assignment Agreement, dated as of June 24, 1998, between
SOFTBANK Holdings and SOFTBANK Technology.
<PAGE>
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CUSIP NO. 337486 10 4 PAGE 10 OF 10 PAGES
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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.
June 29, 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 L
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of June 23, 1998 (the
"Agreement"), is entered into by and among (i) SOFTBANK Holdings Inc., a
Delaware corporation ("SOFTBANK Holdings"), and SOFTBANK Technology Ventures IV
L.P., a Delaware limited partnership ("SOFTBANK Technology" and, together with
SOFTBANK Holdings, the "Stockholders"), and (ii) E*TRADE Group, Inc., a Delaware
corporation ("E*TRADE").
WHEREAS, the Stockholders have entered into the agreements
listed on Schedule I hereto (the "Related Agreements") with First Virtual
Holdings Incorporated, a Delaware corporation ("First Virtual"), certain holders
of Series A Convertible Preferred Stock of First Virtual and certain holders of
debt and Common Stock, par value $0.001 per share ("Common Stock"), of First
Virtual pursuant to which the Stockholders will acquire approximately 65% of the
outstanding shares of Common Stock (the "SOFTBANK Purchase") on the terms and
subject to the conditions set forth therein;
WHEREAS, subject to consummation of the SOFTBANK Purchase,
each Stockholder desires to sell to E*TRADE the number of shares of Common Stock
set forth opposite such Stockholder's name in Exhibit A hereto (the "Shares");
and
WHEREAS, E*TRADE desires to purchase such Shares from the
Stockholders.
<PAGE>
NOW, THEREFORE, the parties hereto agree as follows:
1. Purchase and Sale.
(a) Upon the terms and subject to the conditions of this
Agreement, E*TRADE will purchase, and each of SOFTBANK Holdings and SOFTBANK
Technology, severally and not jointly, will sell to E*TRADE the number of Shares
set forth opposite such Stockholder's name on Exhibit A hereto, against payment
to each of SOFTBANK Holdings and SOFTBANK Technology of the purchase price of
$0.60 per share. The consummation of such purchase and sale (the "Closing")
shall occur at the offices of Sullivan & Cromwell, 444 South Flower Street, Los
Angeles, California 90071 at 9:00 a.m. immediately following the closing of the
SOFTBANK Purchase, or at such later time and date as the conditions set forth
herein are satisfied (the "Closing Date").
(b) At the Closing, each Stockholder shall deliver to E*TRADE
a stock certificate or certificates, duly endorsed for transfer, representing
the number of Shares to be purchased by E*TRADE from such Stockholder as set
forth on Exhibit A against payment to such Stockholder by wire transfer of the
purchase price therefor in immediately available funds.
2. Representations and Warranties of the Stockholders.
Each of the Stockholders, severally and not jointly,
represents and warrants to E*TRADE as follows:
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<PAGE>
(a) Ownership of the Shares. Immediately prior to the Closing,
such Stockholder will be the beneficial owner of the Shares set forth opposite
such Stockholder's name in Exhibit A hereto, and such Shares will be owned free
and clear of all liens, encumbrances, charges, security interests, claims and
assessments, and will be subject to no restrictions with respect to
transferability except in compliance with applicable securities laws as set
forth in the legend thereon.
(b) Sale of Shares. The sale and delivery of the Shares to
E*TRADE pursuant to the terms hereof will vest in E*TRADE legal and valid title
to the Shares free and clear of all liens, encumbrances or other defects of
title other than (i) those created by E*TRADE and (ii) restrictions on sales of
the Shares under applicable securities laws.
(c) No Conflict. The execution, delivery and performance by
such Stockholder of this Agreement and the consummation by it of the
transactions contemplated hereby will not, with or without the giving of notice
of the lapse of time, or both, (i) violate any provision of law, rule or
regulation, foreign or domestic applicable to such Stockholder, (ii) violate any
order, judgment or decree applicable to such Stockholder, (iii) violate the
certificate of incorporation and by-laws or partnership agreement, as
applicable, of such Stockholder or (iv) violate any material contract, agreement
or arrangement to which the Stockholder is a party or by which such Stockholder
is bound. No consent, approval or authorization of, or exemption by, or filing
with, any governmental authority or third party is required to be obtained by
such
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<PAGE>
Stockholder in connection with the execution, delivery and performance by it of
this Agreement or the taking of any other action contemplated hereby.
(d) Non-Solicitation. Neither the Stockholders, nor any person
acting on their behalf, has offered or sold Common Stock by means of any general
solicitation or general advertising within the meaning of Rule 502(c) under the
Securities Act of 1933, as amended, (the "Securities Act");
(e) Exemption. Within the preceding six months, neither the
Stockholders nor any other person acting on behalf of the Stockholders has
offered or sold to any person any Common Stock or any securities of the same or
a similar class as the Common Stock, other than Common Stock offered or sold to
E*Trade hereunder, under circumstances that would result in the unavailability
of exemptions from registration pursuant to the Securities Act for transactions
contemplated hereby.
(f) Due Authorization. All corporate or partnership, as
applicable, action on the part of such Stockholder necessary for the
authorization of this Agreement and the performance of all obligations of such
Stockholder hereunder has been taken.
(g) Related Agreements. It is understood that nothing in these
representations and warranties shall create any express or implied obligation of
the Stockholder to E*TRADE with respect to either Stockholder's performance of
its obligations under the Related Agreements or constitute E*TRADE a third party
beneficiary thereof.
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<PAGE>
(h) Disclosure. To the Stockholders' knowledge, First Virtual
has provided the Stockholders with all the information which they have requested
for deciding whether to purchase the Shares, including such agreements that the
Stockholders believe to be material, and all information which the Stockholders
believe is reasonably necessary to enable the Stockholders to make such
decision. In addition, First Virtual has provided to the Stockholders its
unaudited financial statements (balance sheet, income statement and statement of
cash flow) for its most recent quarter. The Stockholders and E*TRADE acknowledge
and agree that the Stockholders make no representation or warranty with respect
to the accuracy of any such information or with respect to the business,
financial condition or results of operations of First Virtual.
3. Representations and Warranties of E*TRADE.
E*TRADE represents and warrants to the Stockholders as
follows:
(a) Investment Representations.
(i) E*TRADE is acquiring the Shares for its
own account for investment and not with a view to distribution. E*TRADE will not
sell or transfer the Shares or any interest therein except in compliance with
the Securities Act of 1933 and applicable State securities laws.
(ii) E*TRADE is an "accredited investor" as
defined in Rule 501(a) under the Securities Act of 1933 (the "Securities Act").
-5-
<PAGE>
(iii) E*TRADE has such knowledge,
sophistication and experience in business and financial matters so as to be
capable of evaluating the merits and risks of the prospective investment in the
Shares, and has so evaluated the merits and risks of such investment.
(iv) E*TRADE is able to bear the economic
risk of an investment in the Shares and, at the present time, is able to afford
a complete loss of such investment.
(v) E*TRADE understands and acknowledges
that (i) the Shares are being offered and sold to it without registration under
the Securities Act by reason of reliance upon certain exemptions therefrom, (ii)
the availability of such exemptions, depends in part on, the foregoing
representations set forth in this Section 3(a) and (iii) the Shares shall bear
legends regarding the restrictions on transfer referred to in this Section 3.
(b) Due Authorization. All corporate action on the part of
E*TRADE necessary for the authorization of this Agreement and the performance of
all obligations of E*TRADE hereunder has been taken.
(c) No Conflict. The execution, delivery and performance by
E*TRADE of this Agreement and the consummation by it of the transactions
contemplated hereby will not, with or without the giving of notice of the lapse
of time, or both, (i) violate any provision of law, rule or regulation, foreign
or domestic applicable to E*TRADE, (ii) violate any order, judgment or decree
applicable to E*TRADE, (iii) violate the certificate of incorporation and
by-laws
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<PAGE>
of E*TRADE or (iv) violate any material contract, agreement or arrangement to
which E*TRADE is a party or by which E*TRADE is bound. No consent, approval or
authorization of, or exemption by, or filing with, any governmental authority or
third party is required to be obtained by E*TRADE in connection with the
execution, delivery and performance by it of this Agreement or the taking of any
other action contemplated hereby.
(d) Disclosure. To E*TRADE's knowledge, E*TRADE has been
provided with all the information which it has requested for deciding whether to
purchase the Shares, including such agreements that E*TRADE believes to be
material, and all information which E*TRADE believes is reasonably necessary to
enable it to make such decision. In addition, First Virtual's unaudited
financial statements (balance sheet, income statement and statement of cash
flow) for its most recent quarter have been made available to E*TRADE.
4. Conditions Precedent to Obligations of E*TRADE.
The obligation of E*TRADE to consummate the transactions
contemplated by this Agreement is subject to the satisfaction at or prior to the
Closing Date of each of the following conditions:
(a) The SOFTBANK Purchase, and all the transactions
contemplated by the Related Agreements, shall have been consummated.
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<PAGE>
(b) No preliminary or permanent injunction or other binding
order, decree or ruling issued by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission, shall be in
effect which shall have the effect of preventing the consummation of the
transactions contemplated by this Agreement; provided, however, that the parties
hereto shall use their best efforts to seek to obtain the removal of such
injunction, order, decree or ruling.
(c) All representations and warranties of each of the
Stockholders contained in this Agreement shall be true in all material respects
at and as of the Closing Date as though made at such time, and each of the
Stockholders shall have performed and complied in all material respects with all
covenants, obligations and conditions required by this Agreement to be performed
or complied with by it prior to or on the Closing Date.
(d) All corporate and other proceedings required to carry out
the transactions contemplated by this Agreement and all instruments and other
documents relating to such transactions shall be reasonably satisfactory in form
and substance to Brobeck, Phleger & Harrison LLP, counsel to E*TRADE, and
E*TRADE shall have been furnished with the Related Agreements and such
instruments, documents and opinions as such counsel shall have reasonably
requested.
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<PAGE>
5. Conditions Precedent to Obligations of the Stockholders.
The obligations of each of the Stockholders to consummate the
transactions contemplated by this Agreement are subject to the satisfaction at
or prior to the Closing Date of each of the following conditions:
(a) The SOFTBANK Purchase, and all transactions contemplated
by the Related Agreements, shall have been consummated.
(b) No preliminary or permanent injunction or other binding
order, decree or ruling issued by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission, shall be in
effect which shall have the effect of preventing the consummation of the
transactions contemplated by this Agreement; provided, however, that the parties
hereto shall use their best efforts to seek to obtain the removal of such
injunction, order, decree or ruling.
(c) All representations and warranties of E*TRADE contained in
this Agreement shall be true in all material respects at and as of the Closing
Date as though made at such time, and E*TRADE shall have performed and complied
in all material respects with all covenants, obligations and conditions required
by this Agreement to be performed or complied with by it prior to or on the
Closing Date.
(d) All corporate and other proceedings required to carry out
the transactions contemplated by this Agreement and all instruments and other
documents relating to such
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<PAGE>
transactions shall be reasonably satisfactory in form and substance to Sullivan
& Cromwell, counsel to the Stockholders, and the Stockholders shall have been
furnished with such instruments, documents and opinions as such counsel shall
have reasonably requested.
6. Miscellaneous.
(a) Modification and Waiver. No amendment or modification of
the terms or provisions of this Agreement shall be binding unless the same shall
be in writing and duly executed by the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed to or shall constitute a waiver of
any other provisions hereof. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof.
(b) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder may be assigned, by operation of law or
otherwise, in whole or in part, by the Stockholders or E*TRADE without the prior
written consent of the other parties.
(c) Entire Agreement. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof. Any
previous agreement or understandings between the parties regarding the subject
matter hereof are merged into and superseded by this Agreement.
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<PAGE>
(d) Severability. In case any provision in this Agreement
(including the Exhibit and Schedule hereto) shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
(e) Notices. All notices, consents or other communications
shall be in writing, and shall be deemed to have been duly given and delivered
when delivered by hand, or when mailed by registered or certified mail, return
receipt requested, postage prepaid, or when received via telecopy, telex or
other electronic transmission, in all cases addressed to the party for whom
intended at its address set forth below:
If to SOFTBANK Holdings or SOFTBANK Technology:
SOFTBANK Holdings Inc.
10 Langley Road
Suite 403
Newton Center, Massachusetts 02169
Attention: Ronald Fisher, Vice Chairman
Telephone: (617) 928-9300
Telecopier: (617) 928-9301
with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Stephen A. Grant, Esq.
Telephone: (212) 558-3504
Telecopier: (212) 558-3588
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<PAGE>
If to E*TRADE:
E*TRADE Group, Inc.
Four Embarcadero Place
2400 Geng Road
Palo Alto, CA 94303
Attention: Michael P. Rolnick, Vice
President, New Ventures
Telephone: (650) 842-2459
Telecopier: (650) 842-8622
with a copy to:
Brobeck, Phleger & Harrison LLP
Two Embarcadero Place
2200 Geng Road
Palo Alto, California 94303-0913
Attention: Curtis L. Mo
Telephone: (650) 424-0160
Telecopier: (650) 424-2885
or such other address as a party shall have designated by notice in writing to
the other party given in the manner provided by this Section.
(f) No Implied Rights. Nothing herein express or implied, is
intended to or shall be construed to confer upon or give to any person, firm,
corporation or legal entity, other than the parties hereto and their affiliates,
any interest, rights, remedies or other benefits with respect to or in
connection with any agreement or provision contained herein or contemplated
hereby; provided, however, that the representations and warranties of E*TRADE
set forth in Section 3(a) and of the Stockholders set forth in Sections 2(d) and
(e) shall inure to the benefit of the Company and Wilson Sonsini Goodrich &
Rosati, and the Company and Wilson Sonsini Goodrich & Rosati shall be entitled
to rely on such representations and warranties.
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<PAGE>
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
(h) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
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/ Bradley A. Feld
---------------------------
Name: Bradley A. Feld
Title: Managing Director
E*TRADE GROUP, INC.
By: /s/ Stephen Richards
---------------------------
Name: Stephen Richards
Title:
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<PAGE>
Exhibit A
Number of
Shares to
be Sold to Purchase
Stockholder E*TRADE Price
- ----------------------------------------- ----------- -----------
SOFTBANK Holdings......................... 416,667 $250,000
SOFTBANK Technology....................... 416,666 250,000
----------- -----------
Total................... 833,333 $500,000
=========== ===========
<PAGE>
SCHEDULE 1
1. Purchase Agreement, dated as of April 30, 1998, by and among
First Virtual Holdings Incorporated, SOFTBANK Technology Ventures IV
L.P. and SOFTBANK Holdings.
2. Option Agreement, dated as of April 30, 1998, between SOFTBANK
Technology Ventures IV L.P., SOFTBANK Holdings Inc. and the persons and
entities whose names appear on the signature pages thereto.
3. Promissory Note and Stock Purchase Agreement, dated as of April 30,
1998, between SOFTBANK Holdings Inc. and certain holders of promissory
notes and Common Stock of First Virtual Holdings Incorporated listed on
Exhibit A thereto.
4. Stockholders' Agreement, dated as of April 30, 1998, by the undersigned
stockholders of First Virtual Holdings Incorporated in favor of
SOFTBANK Technology Ventures IV L.P. and SOFTBANK Holdings Inc.
5. Conversion Agreement, dated as of April 30, 1998, by and between First
Virtual Holdings Incorporated, SOFTBANK Technology Ventures IV L.P. and
SOFTBANK Holdings Inc.
6. Loan Agreement, dated as of April 30, 1998, by and between First
Virtual Holdings Incorporated and SOFTBANK Holdings Inc. and certain
promissory notes entered into pursuant thereto.
EXHIBIT M
ASSIGNMENT AGREEMENT
SOFTBANK Holdings Inc. ("Assignor") hereby assigns and sells to
SOFTBANK Technology Ventures IV L.P. ("Assignee"), and the Assignee hereby
purchases from the Assignor, a 50% interest in each promissory note (a
"Promissory Note") of First Virtual Holdings Incorporated (the "Company")
purchased by the Assignor pursuant to the Promissory Note and Stock Purchase
Agreement, dated as of April 30, 1998, by and among SOFTBANK Holdings and
certain holders of promissory notes and Common Stock listed on Exhibit A
thereto, including, without limitation, the right to receive shares of the
Company's Common Stock, par value $0.001 per share, from the Company upon
conversion of the principal of, and accrued interest on, the Promissory Notes,
as provided by the Conversion Agreement, dated as of April 30, 1998, by and
among the Company, the Assignor and the Assignee. Upon the execution of this
Assignment Agreement, the Assignee shall pay to the Assignor $768,162.36, which
represents the portion of the principal amount of, and accrued interest on, the
Promissory Notes assigned and sold to the Assignee.
June 24, 1998 SOFTBANK HOLDINGS INC.
By: /s/ Steven Murray
------------------------------
Name: Steven Murray
Title: Controller
SOFTBANK Technology Ventures
IV L.P.
By: STV IV LLC,
Its General Partner
By: /s/ Bradley A. Feld
------------------------------
Name: Bradley A. Feld
Title: Managing Director
