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.
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 Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000 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:
-2-
(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
-3-
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.
-4-
(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-
(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
-6-
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.
-7-
(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 Xxxxxxx, Phleger & Xxxxxxxx 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.
-8-
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
-9-
transactions shall be reasonably satisfactory in form and substance to Xxxxxxxx
& Xxxxxxxx, 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.
-10-
(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.
00 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx, Vice Chairman
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
-11-
If to E*TRADE:
E*TRADE Group, Inc.
Four Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Vice
President, New Ventures
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Mo
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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 Xxxxxx Xxxxxxx Xxxxxxxx &
Xxxxxx, and the Company and Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx shall be entitled
to rely on such representations and warranties.
-12-
(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.
-13-
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/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice Chairman
SOFTBANK TECHNOLOGY VENTURES
IV L.P.
By: STV IV LLC
Its General Partner
By: /s/ Xxxxxxx X. Xxxx
---------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
E*TRADE GROUP, INC.
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxx
Title:
-14-
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
=========== ===========
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.
