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EXHIBIT 10.5
WARRANT
NEITHER THE WARRANT REPRESENTED HEREBY NOR THE SECURITIES ISSUABLE UPON EXERCISE
THEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). NONE OF SUCH SECURITIES MAY BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT, OR (ii) AN AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES AND UPON
DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO
COUNSEL FOR THE COMPANY, THAT SUCH EXEMPTION FROM REGISTRATION UNDER THE ACT IS
AVAILABLE.
DATE: February 25, 1999
NO.: W-RBC1
WARRANT TO PURCHASE
400,000 SHARES OF
COMMON STOCK
OF
SECURITY FIRST TECHNOLOGIES CORPORATION
Securities First Technologies Corporation, a Delaware corporation (the
"Company"), hereby issues to Royal Bank of Canada (the "Holder") this warrant to
purchase from the Company 400,000 shares of the Company's common stock, $.01 par
value per share (the "Common Stock"), at varying prices per share as set forth
in the table presented in section 1.1 (b) below. References in this warrant to
the "Exercise Price" shall mean the exercise price per share of Common Stock
payable with respect to a particular Installment (as such term is defined
below).
1. Exercise.
1.1 Contingent Vesting of Right to Exercise. (a) General. The
rights represented by this warrant are contingent upon the number of Warrant
Customers (as such term is defined in Section 3.2.B of the RBC/SONE Agreement,
dated February 25, 1999) of the Holder on each of four specified dates (each, a
"Calculation Date"), which dates shall be (i) the first business day in Atlanta,
Georgia following the "Completion Date" (as such term is defined in Section
2.1.F of the RBC/SONE Agreement, dated February 25, 1999), and (ii) each of the
respective first business days in Atlanta, Georgia following the three
successive anniversary dates of the Completion Date. Unless accelerated pursuant
to the provisions of section 1.1(c) below, vesting of the rights represented by
this warrant will occur, if at all, in four equal installments (each, an
"Installment") on the day immediately following a given Calculation Date if and
only if the number of Warrant Customers meets or exceeds the threshold numbers,
which shall be calculated as of each Calculation Date (each, a "Customer
Minimum") specified in the tabular description of each Installment. If vesting
of a particular Installment has not occurred as of its Calculation Date, the
rights represented by this warrant will be void as to the number of shares of
Common Stock underlying such Installment.
(b) Vesting Table. The table below sets forth for each
Installment as of the applicable Calculation Dates the number of shares of
Common Stock to which the Installment relates, Customer Minimum and Exercise
Prices for each Installment.
Number of Warrant Per Share
Calculation Shares in Customer Exercise Price
Installment Date Installment Minimum
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1 Initial 100,000 1,000,000 $60.00
2 Second 100,000 2,000,000 $60.00
3 Third 100,000 3,000,000 $60.00
4 Fourth 100,000 4,000,000 $60.00
(c) Acceleration of Vesting. Upon a "Change of Control"
(defined below) of the Company, this warrant shall become fully vested without
regard to whether the incentives of a particular Installment have been met. For
purposes of this warrant, a "Change of Control" shall mean:
(i) The acquisition by any individual, entity or group (within
the meaning of Section 13(d) (3) or 14(d) (2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 80% or
more of either the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however, that
for purposes of this paragraph (i), the following acquisitions shall not
constitute a Change of Control: (1) any acquisition directly from the Company,
(2) any acquisition by the Company, or (3) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
other corporation controlled by the Company; or
(ii) Consummation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the assets of the
Company (a "Business Combination"), in each case, unless, following such
Business Combination, (1) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately prior
to such Business Combination beneficially own, directly or indirectly, more than
50% of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Company Common
Stock and Outstanding Company Voting Securities, as the case may be, or (2) no
Person (excluding any corporation resulting from such Business Combination or
any employee benefit plan (or related trust) of the Company, such corporation
resulting from such Business Combination or a corporation controlled by any of
them) beneficially owns, directly or indirectly, 80% or more of, respectively,
the then outstanding shares of common stock of the corporation resulting from
such Business Combination or the combined voting power of the then outstanding
voting securities of such corporation except to the extent that such ownership
existed prior to the Business Combination; or
(iii) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company without the establishment of a
successor corporation.
1.2 Mechanics of Exercise. Beginning at such time as an Installment
vests, the Holder may exercise this warrant in whole or from time to time in
part, to purchase such numbers of shares as to which this warrant has vested,
until 5:00 PM (Atlanta, Georgia time) on the 90th day following the date of
vesting (the "Exercise Period"), by (a) the surrender of this warrant, along
with the purchase form attached as Exhibit A (the "Purchase Form"), properly
executed, at the address of the
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Company set forth in section 6.2 (or such other address as the Company may
designate by notice in writing to the Holder at its address set forth in section
6.2) and (b) the payment to the Company of the applicable Exercise Price for
such Installment by check, payable to the order of the Company, or by wire
transfer or other immediately available funds, for the number of shares of
Common Stock specified in the Purchase Form, together with any applicable stock
transfer taxes. A certificate representing the shares of Common Stock so
purchased and, in the event of an exercise of any of the first three
Installments or, with respect to the fourth Installment, upon exercise of fewer
than all the remaining rights represented by this warrant, a new warrant in the
form of this warrant issued in the name of the Holder or its designee(s) and
representing a new warrant to purchase a number of shares of Common Stock equal
to the number of shares of Common Stock as to which this warrant was theretofore
exercisable less the number of shares of Common Stock as to which this warrant
shall theretofore have been exercised or shall have become void, shall be
delivered to the Holder or such designee(s) as promptly as practicable, but in
no event later than three business days, after this warrant shall have been so
exercised. Notwithstanding the foregoing or any other provision to the contrary
herein, if (i) the Holder is not otherwise permitted or authorized under Section
4 of the Bank Holding Company Act of 1956, as amended, to hold more than 4.999%
of the total number of shares of Common Stock then outstanding, and (ii)
exercise of an Installment, in whole or in part, would cause the Holder to own
more than 4.999% of the total number of shares of Common Stock then outstanding,
then the Exercise Period as to such Installment shall be extended to 10 days
following notice from the Corporation to the Holder that exercise of such
Installment, in whole or in part, would not cause the Holder to hold more than
4.999% of the total number of shares of Common Stock then outstanding.
2. Antidilution. In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock, (ii)
subdivide its outstanding shares of Common Stock (including, without limitation,
by way of stock splits and the like), (iii) combine its outstanding shares of
Common Stock into a smaller number of shares of Common Stock or (iv) issue by
reclassification of its shares of Common Stock other securities of the Company
(including any such reclassification in connection with a consolidation or
merger in which the Company is the surviving corporation), the number of shares
of Common Stock purchasable upon exercise of this warrant immediately prior
thereto shall be adjusted so that the Holder shall be entitled to receive the
number of shares of Common Stock or the kind and number of other securities of
the Company which it would have owned or have been entitled to receive after the
happening of any of the events described above had this warrant been exercised
immediately prior to the happening of such event or any record date with respect
thereto, and the exercise price per share shall be adjusted appropriately. An
adjustment made pursuant to this section 2 shall become effective immediately
after the effective date of each such event retroactive to the record date, if
any, for such event, without amendment or modification required to this
document.
3. Limited Transferability. The Holder covenants that it will not,
without the prior written consent of the Company, offer, sell or otherwise
dispose of, directly or indirectly, this warrant. The Holder further covenants
that it will not, without the prior written consent of the Company, offer, sell
or otherwise dispose of, directly or indirectly, any shares of the Company's
capital stock which the Holder may acquire from time to time upon exercise of
this warrant for the first and second Installments, for a two-year period
commencing upon the date the right to acquire each such respective share vests,
and for the third Installment, for a one-year period commencing upon the date of
acquisition of each such respective share vests. Notwithstanding the foregoing,
the Holder or any of its permitted transferees hereunder may transfer this
warrant or some or all of any such shares of the Company's capital stock to a
corporation, partnership or other legal entity controlled by the Holder, if such
transferee agrees in writing to hold this warrant or any shares received subject
to the provisions of this warrant and to transfer this warrant or such shares
back to the Holder if such transferee ceases to be controlled by the Holder. Any
offer, sale or other purported transfer of this warrant shall be void ab initio
and the purported transferee thereof shall possess no rights in this warrant and
this warrant shall be canceled and shall cease to be outstanding.
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4. Payment of Taxes. The Company shall cause all shares of Common Stock
issued upon the exercise of this warrant to be validly issued, fully paid and
nonassessable and not subject to preemptive rights. The Company shall pay all
expenses in connection with, and all taxes and other governmental charges that
may be imposed with respect to the issuance or delivery of the shares of Common
Stock upon exercise of this warrant, unless such tax or charge is imposed by law
upon the Holder.
5. Reservation of Shares. From and after the date of this warrant, the
Company shall at all times reserve and keep available for issuance upon the
exercise of this warrant a number of its authorized but unissued shares of
Common Stock sufficient to permit the exercise in full of this warrant.
6. Miscellaneous.
6.1 Securities Act Restrictions. The Holder acknowledges that this
warrant may not be sold, transferred or otherwise disposed of without
registration under the Act or an applicable exemption from the registration
requirements of the Act and, accordingly, this warrant and all certificates
representing the Common Stock issuable upon the exercise of this warrant shall
bear a legend in the form set forth on the top of page one of this warrant.
6.2 Notices. Any notices and other communications under this warrant
shall be in writing and may be given by any of the following methods: (a)
personal delivery; (b) facsimile transmission; (c) registered or certified mail,
postage prepaid, return receipt requested; or (d) overnight delivery service.
Notices shall be sent to the appropriate party at its address or facsimile
number given below (or at such other address or facsimile number for such party
as shall be specified by notice given hereunder): if to the Company, to it at:
3390 Peachtree Road, Suite 1700, Atlanta, GA 30326-1108, Fax No. (404) 812-6727,
Attention: Chief Financial Officer, and if to the Holder, to it at: Royal Bank
of Canada, 16th Floor, South Tower, Royal Bank Plaza, 200 Bay Street, Toronto,
Ontario M5J 2J2, Fax No. (416) 974-9334, Attention: Vice President, Business
Development. All such notices and communications shall be deemed received upon
(a) actual receipt thereof by the addressee, (b) actual delivery thereof to the
appropriate address or (c) in the case of a facsimile transmission, upon
transmission thereof by the sender and issuance by the transmitting machine of a
confirmation slip confirming that the number of pages constituting the notice
have been transmitted without error. In the case of notices sent by facsimile
transmission, the sender shall contemporaneously mail a copy of the notice to
the addressee at the address provided for above. However, such mailing shall in
no way alter the time at which the facsimile notice is deemed received.
6.3 Amendment. This warrant may be modified or amended or the
provisions of this warrant may be waived only with the written consent of the
Company and the Holder.
6.4 Governing Law. This warrant shall be governed by the law of the
State of Delaware, without regard to the provisions thereof relating to
conflicts of laws.
7. Legend.
Each certificate representing shares of Common Stock issued as a
result of the exercise of any Installment shall bear the following legend (in
addition to any legend required by applicable state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY
OTHER FEDERAL OR STATE SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED
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UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY
OTHER APPLICABLE FEDERAL SECURITIES LAWS COVERING SUCH SECURITIES OR THE
CORPORATION RECEIVES AN OPINION OF COUNSEL IN FORM SATISFACTORY TO THE
CORPORATION THAT AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
ADDITIONALLY, THE TRANSFER OF THE SHARES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS SPECIFIED IN SECTION 3 OF
THE WARRANT OF FIRST TECHNOLOGIES CORPORATION DATED FEBRUARY 25, 1999, AND
NO TRANSFER OF SHARES SHALL BE VALID OR EFFECTIVE ABSENT COMPLIANCE WITH
SUCH RESTRICTIONS. A COPY OF THE WARRANT MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE REGISTERED HOLDER OF THIS CERTIFICATE TO THE
SECRETARY OF THE CORPORATION.
The legend endorsed on a stock certificate pursuant to this Section 7, insofar
as it relates to registration under the Securities Act of 1933, as amended,
shall be removed and the Corporation shall issue a certificate without such
legend to the holder of such shares, if such shares are registered under
applicable federal securities laws and a prospectus meeting the requirements of
the rules and regulations of the Securities and Exchange Commission is available
or if such holder provides to the Corporation an opinion of counsel to such
holder reasonably satisfactory to the Corporation, to the effect that a public
sale, transfer or assignment of such shares may be made without registration and
without compliance with any restrictions. The legend endorsed on a stock
certificate pursuant to this Section 7, insofar as it relates to additional
transfer restrictions specified herein, shall be removed upon the expiration of
the applicable provisions.
IN WITNESS WHEREOF, the Company has caused this warrant to be executed by
an officer thereunto duly authorized.
SECURITY FIRST TECHNOLOGIES CORPORATION
By: /s/ James S. Mahan III
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Name: James S. Mahan III
Title: CEO