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Exhibit 4.3
THIS WARRANT CERTIFICATE AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THIS WARRANT AND ANY OF SUCH
SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT RELATING TO
SUCH TRANSACTION UNDER THE ACT AND ALL OTHER APPLICABLE SECURITIES LAWS OR
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION PROVISIONS OF THE ACT AND OTHER
APPLICABLE SECURITIES LAWS.
WARRANT CERTIFICATE
WARRANTS TO PURCHASE SHARES OF STOCK
OF ONLINE RESOURCES CORPORATION
Date of Issuance: September 27, 2000
THIS CERTIFIES that, for value received, Jefferies & Company, Inc.,
or registered assigns (the "Holder"), is entitled to purchase, subject to the
provisions of this Warrant Certificate (the "Warrant"), from Online Resources
Corporation, a Delaware corporation (the "Company"), at the price hereinafter
set forth, that number of shares of Common Stock, $0.0001 par value, of the
Company as determined in accordance with the provisions of Article VI hereof.
This Warrant is hereinafter referred to as the "Warrant" and the shares of
Common Stock, par value $0.0001 per share issuable pursuant to the terms
hereof, are hereinafter sometimes referred to as "Warrant Shares".
ARTICLE I
CERTAIN DEFINITIONS
For all purposes of this Warrant, unless the context otherwise
requires, the following terms shall have the following respective meanings:
"Act": the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect
at the time.
"Agreement": the Agreement defined in the preamble to this
Warrant.
"Common Stock": the Company's authorized shares of Common
Stock, par value $.0001 per share.
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"Commission": the Securities and Exchange Commission, or
any other federal agency then administering the Act.
"Company": Online Resources Corporation, a Delaware
corporation, having a principal office located at 7600 Colshire
Drive, McLean, Virginia 22102 and any other corporation assuming or
required to assume this Warrant pursuant to Article VIII.
"Effective Period": the period beginning on the date hereof
and ending on the earliest of (i) September 30, 2005, (ii) the
effective date of any merger of the Company with another company in
which, following such merger, the Company's stockholders do not hold
shares representing more than fifty percent (50%) of the votes in the
company surviving the merger, or (iii) the date of any liquidation or
dissolution of the Company. In reference to (ii) and (iii) above, the
Company shall give, by first class mail, postage prepaid, addressed
to the Holder, at the address of the Holder as shown on the books of
the Company at least twenty (20) days prior written notice ("Notice")
of (i) the record date for determining rights to vote in respect of
any merger, consolidation or transfer of assets which would result in
the expiration of this Warrant and (ii) in reference to a merger,
consolidation, or transfer of assets of the Company, the last date on
which the holders of Common Stock shall be entitled to exchange their
shares for securities or property resulting from such merger,
consolidation or transfer of assets.
"Exercise Price": the purchase price for any Warrant Share
purchasable under this Warrant as set forth in Section 5.1 hereof.
"Person": any individual, corporation, partnership, trust,
limited liability company, unincorporated organization and any
government, and any political subdivision, instrumentality or agency
thereof.
"Warrant Office": the Company's principal office as set
forth above.
"Warrant Shares": the shares of Common Stock purchasable by
the holder of this Warrant upon the exercise of this Warrant.
ARTICLE II
EXERCISE OF WARRANT
2.1 Duration. The right to exercise this Warrant to subscribe
for and purchase shares of Common Stock shall commence on the date hereof and
shall expire at 5:00 p.m., Eastern Time, on the last day of the Effective
Period.
2.2 Method of Exercise. Commencing on the date hereof and prior
to the termination of the Exercise Period, this Warrant shall be exercisable
in whole or in part at any time and from time to time. In order to exercise
this Warrant, the Holder hereof shall deliver to the Company, at the Warrant
Office designated pursuant to Section 3.1: (a) a written notice, in
substantially the
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form of the Subscription Notice attached hereto as Exhibit 2.1, of such
Holder's election to exercise this Warrant, which notice shall specify the
number of shares of Common Stock to be purchased; (b) (i) a check payable to
the order of the Company in an amount equal to the Exercise Price as set forth
in Section 5.1 hereof for the number of shares of Common Stock being
purchased; or (ii) instructions to the Company to withhold from the Warrant
Shares which otherwise would be issued to the Holder as a result of such
exercise of this Warrant, shares of Common Stock (valued at their Fair Market
Value on the date of exercise) in satisfaction of all or part of the Exercise
Price with respect to such Warrant Shares to be purchased pursuant to such
written notice. The Company shall, as promptly as practicable and in any event
within two (2) business days thereafter, execute and deliver or cause to be
executed and delivered, in accordance with said notice, a certificate or
certificates representing the aggregate number of shares of Common Stock
specified in said notice. The stock certificate or certificates so delivered
shall be in denominations of shares as may be specified in said notice and
shall be issued in the name of the Holder or such other name as shall be
designated in said notice. At the time of delivery of the certificate or
certificates, appropriate notation will be made on this Warrant designating
the number of shares purchased and this Warrant shall then be returned to the
Holder if this Warrant has been exercised in part. The Company shall pay all
expenses, taxes and other charges payable in connection with the preparation,
issuance and delivery of stock certificates. As used in this Section 2.2,
"Fair Market Value" shall mean the average of the last sales prices of the
Common Stock on the National Association of Security Dealers Automated
Quotation System ("NASDAQ") or the closing price quoted on any exchange on
which the Common Stock is listed, whichever is applicable, as reported in the
Eastern Edition of The Wall Street Journal, for the 20 days preceding the date
of exercise (or if no shares are traded on those dates, the average of the
last sales prices of the Common Stock on the nearest date on which such shares
were traded). If the Common Stock is not traded on NASDAQ or on any exchange,
the Fair Market Value shall be determined in good faith by the mutual
agreement of the Board of Directors of the Company and the Holder.
2.3 Shares to be Fully Paid and Nonassessable. All shares of
Common Stock issued upon the exercise of this Warrant shall be validly issued,
fully paid and nonassessable.
2.4 No Fractional Shares to be Issued. The Company shall not be
required upon any exercise of this Warrant to issue a certificate representing
any fraction of a share of Common Stock. Upon payment of the exercise price
with respect to any fractional shares, the Company shall pay to the Holder the
cash equivalent of such fractional shares, based on the Fair Market Value of
such shares as reasonably determined pursuant to Section 2.2 above.
2.5 Legend on Warrant Shares. Each certificate for shares of
Common Stock initially issued upon exercise of this Warrant, unless at the
time of exercise such shares are registered under the Act, shall bear a legend
substantially similar to the following, in addition to any other legends
required to be placed on such share certificate pursuant to any other
agreements by which the Company is bound.
"The securities represented by this certificate have not been
registered under the Securities
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Act of 1933, as amended (the "Act"), or the securities laws of any
state. They may not be sold, transferred, assigned, pledged,
hypothecated, encumbered or otherwise disposed of except pursuant to
an effective registration statement relating to such transaction
under the Act and all other applicable securities laws or pursuant to
an exemption from the registration provisions of the Act and other
applicable securities laws."
Any certificate issued at any time in exchange or substitution for
any certificate bearing such legend (except a new certificate issued upon
completion of a public distribution pursuant to a registration statement under
the Act of the securities represented thereby) shall also bear a legend
substantially similar to the foregoing, unless, in the opinion of counsel
reasonably satisfactory to the Company, the securities represented thereby
need no longer be subject to the restrictions on transferability. The
provisions of Article IV shall be binding upon all subsequent holders of this
Warrant.
2.6 Acknowledgment of Continuing Obligation. The Company will,
at the time of any exercise of this Warrant in whole or in part, upon request
of the Holder hereof, acknowledge in writing its continuing obligation to such
Holder in respect of any rights to which the Holder shall continue to be
entitled after exercise in accordance with this Warrant; provided, however,
that the failure of the Holder to make any such request shall not affect the
continuing obligation of the Company to the Holder in respect of such rights.
ARTICLE III
WARRANT OFFICE; TRANSFER, DIVISION
OR COMBINATION OF WARRANTS
3.1 Warrant Office. The Company shall maintain an office for
certain purposes specified herein (the "Warrant Office"), which office shall
initially be the Company's location set forth in Article I, and may
subsequently be such other office of the Company or of any transfer agent of
the Common Stock in the continental United States as to which written notice
has previously been given to all holders of Warrants.
3.2 Ownership of Warrant. The Company may deem and treat the
Person in whose name this Warrant is registered as the Holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any
notice to the contrary, until presentation of this Warrant for registration of
transfer as provided in this Article III.
3.3 Transfer of Warrant. The Company agrees to maintain at the
Warrant Office books for the registration of permitted transfers of this
Warrant. Subject to the provisions of Article IV, this Warrant and all rights
hereunder are transferable, in whole or in part, on the books at that office,
upon surrender of this Warrant at that office, together with a written
assignment of this Warrant duly executed by the holder hereof or his duly
authorized agent or attorney and funds sufficient to pay any transfer taxes
payable upon the making of the transfer. Subject to Article IV, upon surrender
and payment, the Company shall execute and deliver a new Warrant in the name
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of the assignee, note thereon the number of Warrant Shares theretofore
purchased under this Warrant, and this Warrant shall promptly be cancelled and
a notation of that cancellation made on the books of the Warrant Office. A
Warrant may be exercised by a new holder for the purchase of shares of Common
Stock without having a new warrant issued.
3.4 Division of Warrants. This Warrant may not be divided.
3.5 Expenses of Delivery of Warrants. The Company shall pay all
expenses, taxes (other than transfer taxes), and other charges payable in
connection with the preparation, issuance and delivery of new Warrants
hereunder.
ARTICLE IV
RESTRICTIONS ON TRANSFER
4.1 Restrictions on Transfer. Notwithstanding any provisions
contained in this Warrant to the contrary, this Warrant shall not be
exercisable or transferable except upon the conditions specified in this
Article IV, which conditions are intended, among other things, to insure
compliance with the provisions of the Act in respect of the exercise or
transfer of the Warrant. The Holder of this Warrant, by acceptance hereof,
agrees that it will not transfer this Warrant prior to delivery to the Company
of any required opinion of the Holder's counsel (as the opinion and counsel
are described in Section 4.2).
4.2 Opinion of Counsel. In connection with any transfer of this
Warrant, the following provisions shall apply:
(a) If, in the opinion of counsel reasonably acceptable to the
Company, a proposed transfer of this Warrant may be effected without
registration of this Warrant under the Act, the Holder of this Warrant shall
be entitled to transfer this Warrant in accordance with the proposed method of
disposition; provided, however, that if the method of disposition would, in
the opinion of such counsel, require that the Company take any action or
execute and file with the Commission or deliver to the Holder or any other
person any form or document in order to establish the entitlement of the
Holder to take advantage of such method of disposition, the Company agrees, at
the cost of the Holder, to promptly take any necessary action or execute and
file or deliver any necessary form or document. Notwithstanding the foregoing,
in no event will the Company be obligated to effect a registration under the
Act so as to permit the proposed transfer of this Warrant.
(b) If, in the opinion of such counsel, the proposed transfer of
this Warrant may not be effected without registration of this Warrant under
the Act, the holder of this Warrant shall not be entitled to transfer this
Warrant until registration is effective.
ARTICLE V
EXERCISE PRICE
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5.1 Exercise Price. The Exercise Price for any Warrant Share
purchasable hereunder shall be equal to the "Conversion Price" per share as
such term is defined in the Indenture dated September 28, 2000 between the
Company and Bankers Trust Company, as trustee (the "Indenture") as such
Conversion Price is adjusted from time to time pursuant to the terms of the
Indenture.
5.2 Notice to Holder. Upon any adjustment to the Exercise Price
required hereunder, the Company will promptly provide the Holder hereof with
written notice of the current Exercise Price existing under this Warrant and
the Exercise Price as adjusted.
ARTICLE VI
NUMBER OF WARRANT SHARES
The Holder is entitled to subscribe for and purchase, at any time and
from time to time during the Effective Period, 200,000 shares of duly
authorized, validly issued, fully paid and non-assessable Common Stock,
subject to adjustment as provided herein.
ARTICLE VII
RECLASSIFICATION, REORGANIZATION
OR MERGER
In case of any reclassification, capital reorganization or other
change of outstanding shares of Common Stock of the Company, or in case of any
consolidation or merger of the Company with or into another corporation (other
than a merger with a subsidiary in which merger the Company is the continuing
corporation or which does not result in any reclassification, capital
reorganization or other change of outstanding shares of Common Stock or which
results in the expiration of this Warrant), the Company shall cause effective
provision to be made so that the Holder hereof shall have the right thereafter
by exercising this Warrant to purchase the kind and amount of shares of stock
and other securities and property receivable upon such reclassification,
capital reorganization or other change, consolidation or merger, as such
holder would have been entitled to receive had such holder exercised this
Warrant immediately prior to such reclassification, change, consolidation or
merger. Any such provision shall include provision for adjustments which shall
be as nearly equivalent as may be practicable to the adjustments, herein
provided, of the Exercise Price and the number of Warrant Shares purchasable
and receivable upon the exercise of this Warrant. The foregoing provisions of
this Article VII shall similarly apply to successive reclassification, capital
reorganizations and changes of shares of Common Stock and to successive
consolidations and mergers.
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ARTICLE VIII
DISTRIBUTIONS, LIQUIDATION
OR DISSOLUTION
8.1 Certain Distributions. In case the Company shall, at any
time, prior to the termination of the Exercise Period, make any distribution
of its assets to holders of its capital stock as a partial liquidation
distribution or by way of return of capital, other than as a dividend payable
out of earnings or any surplus legally available for dividends under the laws
of the State of Delaware, then the Holder, upon the exercise of this Warrant
prior to any such distribution but after the date of record for the
determination of those holders of capital stock entitled to such distribution
of assets, shall be entitled to receive, in addition to the shares of Common
Stock issuable on such exercise, upon such distribution the amount of such
assets, which would have been payable to the holder had it been the holder of
record of such shares of capital stock on the record date for the
determination of those holders of capital stock entitled to such distribution.
8.2 Dissolution or Liquidation. In case the Company shall, at
any time prior to the termination of the Exercise Period, dissolve, liquidate
or wind up its affairs, the Holder shall be entitled, upon the exercise of
this Warrant and prior to any such distribution in dissolution of liquidation,
to receive on such exercise, in lieu of the shares of Common Stock which the
Holder would have been entitled to receive, the same kind and amount of assets
as would have been distributed or paid to the Holder upon any such
dissolution, liquidation or winding up, with respect to such shares of Common
Stock had the holder been the Holder of record of such shares of Common Stock
on the record date for the determination of those holders of Common Stock
entitled to receive any such liquidation distribution.
ARTICLE IX
CERTAIN COVENANTS OF THE COMPANY
The Company covenants and agrees that it will reserve and set apart
and have at all times, free from preemptive rights, a number of shares of
Common Stock or other securities or property deliverable upon the exercise of
this Warrant sufficient to enable it at any time to fulfill all its
obligations hereunder.
ARTICLE X
MISCELLANEOUS
10.1 Entire Agreement. This Warrant contains the entire agreement
between the holder hereof and the Company with respect to the purchase of the
Warrant Shares and supersedes all prior arrangements or understandings with
respect thereto.
10.2 Waiver and Amendment. Any term or provision of this Warrant
may be waived at any time and any term or provision of this Warrant may be
amended or supplemented at any time by agreement of the holders of those
Common Stock Warrants issued hereby representing more than fifty percent (50%)
of all Warrant Shares then issuable upon exercise of all such outstanding
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Common Stock Warrants and the Company acting together, except that any waiver
of any term or condition, or any amendment or supplementation, of this Warrant
must be in writing and except that no change in the number of shares issuable
upon exercise, the rights in liquidation or distribution, or the purchase
price upon exercise and the provisions of this Section 10.2 shall be effective
without the written consent of each Warrant holder affected thereby. A waiver
of any breach or failure to enforce any of the terms or conditions of this
Warrant shall not in any way affect, limit or waive a party's rights hereunder
at any time to enforce strict compliance thereafter with any term or condition
of this Warrant.
10.3 Illegality. In the event that any one or more of the
provisions contained in this Warrant shall be determined to be invalid,
illegal or unenforceable in any respect for any reason, the validity, legality
and enforceability of any such provision in any other respect and the
remaining provisions of this Warrant shall not, at the election of the party
for whom the benefit of the provision exists, be in any way impaired.
10.4 Filing of Warrant. A copy of this Warrant shall be filed in
the records of the Company.
10.5 Notice. Any notice or other document required or permitted
to be given or delivered to the Holder hereof shall be delivered, including by
a nationally recognized overnight courier service, or sent by certified or
registered mail, to such Holder at the last address shown on the books of the
Company maintained at the Warrant Office for the registration of, and the
registration of transfer of, the Warrant or at any more recent address of
which any holder hereof shall have notified the Company in writing. Any notice
or other document required or permitted to be given or delivered to the
Company, shall be delivered, including by a nationally recognized overnight
courier service, at, or sent by certified or registered mail to, the Warrant
Office, attention: President, or such other address within the United States
of America as shall have been furnished by the Company to the Holder hereof.
10.6 Limitation of Liability: Not Stockholders. No provision of
this Warrant shall be construed as conferring upon the Holder hereof the right
to vote, consent, receive dividends or receive notice other than as herein
expressly provided in respect of meetings of stockholders for the election of
directors of the Company or any other matter whatsoever as a stockholder of
the Company. No provision hereof, in the absence of affirmative action by the
Holder hereof to purchase Warrant Shares, and no enumeration herein of the
rights or privileges of the Holder hereof, shall give rise to any liability of
such Holder for the purchase price of any Warrant Shares or as a stockholder
of the Company, whether such liability is asserted by the Company or by
creditors of the Company.
10.7 Loss, Destruction, Etc, of Warrant. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, mutilation or
destruction of the Warrant, and in the case of any such loss, theft or
destruction, upon delivery of a bond of indemnity in such form and amount as
shall be reasonably satisfactory to the Company, or in the event of such
mutilation, upon surrender and cancellation of the Warrant, the Company will
make and deliver a new
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Warrant, of like tenor, in lieu of such lost, stolen, destroyed or mutilated
Warrant. Any Warrant issued under the provisions of this Section 10.7 in lieu
of any Warrant alleged to be lost, destroyed or stolen, or in lieu of any
mutilated Warrant, shall constitute an original contractual obligation on the
part of the Company.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
in its name by its Chairman and CEO and its corporate said to be impressed
hereon and attested by its Secretary.
THE COMPANY:
ONLINE RESOURCES CORPORATION
By:
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Chairman and CEO
Attest:
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Secretary
[Corporate Seal]
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EXHIBIT 2.1
WARRANT
SUBSCRIPTION NOTICE
Dated
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The undersigned hereby irrevocably elects to exercise its right to
purchase ______ shares of the Common Stock, $.0001 par value per share, of
Online Resources Corporation, such right being pursuant to a Warrant dated
__________ , 2000, and as issued to the undersigned by Online Resources
Corporation, and remits herewith the sum of $ ________ in payment for same in
accordance with the Exercise Price specified in such Warrant.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name
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(Please typewrite or print in block letters)
Address
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Signature
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Shares Heretofore Purchased
Under Warrant
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