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EXHIBIT 10.24
WAIVER AND AGREEMENT
THIS WAIVER AND AGREEMENT (this "Waiver and Agreement"), effective as
of August 20, 1996 (the "Effective Date"), is entered into by and between First
Virtual Holdings Incorporated, a Delaware corporation (the "Company"), and
First USA Merchant Services, Inc., a Nevada corporation ("First USA").
WHEREAS, the Company and the First USA are parties to that certain
Amended and Restated Shareholder Rights Agreement, dated July 3, 1996 (the
"Agreement"), and
WHEREAS, the Company and First USA have agreed that the Company shall
make certain payments to First USA in consideration for First USA's waiver of
certain rights pursuant to Section 20 of the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and First USA hereby
agree as follows:
1. Definitions. Any term defined in the Agreement will have the
same meaning when used in this Waiver and Agreement unless
otherwise expressly provided herein.
2. Waiver. Effective as of the Effective Date, First USA, on
behalf of itself and each of its successors and assigns,
(a) waives any and all rights it and each of its successors
and assigns may have pursuant to Section 20 of the Agreement
and (b) agrees that, upon the execution of the Series D
Preferred Stock Purchase Agreement by and between the Company
and First Data Corporation, First USA shall enter into an
Amended and Restated Shareholder Rights Agreement in form
and substance satisfactory to First USA, which will delete
Section 20 of the Agreement in its entirety.
3. Payment Schedule. The Company shall pay to First USA the
following fees in exchange for the waiver and agreement
discussed in Section 2 above:
(a) Within 10 days of the end of each calendar month
during the 40-month period commencing September 1, 1996,
the Company shall pay to First USA a transaction surcharge
fee equal to the greater of (i) $0.005 multiplied by the
number of payment transactions that the Company processed
during the preceding month through a provider of payment
processing services other than First USA Paymentech, Inc.
or its subsidiaries or affiliates and (ii) $12,500.
(b) The Company shall pay to First USA a facility fee
of $250,000 in cash on or before August 26, 1996.
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(c) The Company shall pay to First USA an additional
facility fee of $250,000 in cash upon the earlier of (i)
the consummation of the Company's initial public offering
and (ii) June 30, 1997.
4. Survival of Agreement Provisions. Except as otherwise set
forth in this Waiver and Agreement, the provisions of the
Agreement will remain in full force and effect.
5. Entire Agreement. The Agreement, as modified and supplemented
by this Waiver and Agreement, constitutes the entire
agreement and understanding by and among the parties with
respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this Waiver and Agreement
as of the date first above written.
FIRST VIRTUAL HOLDINGS INCORPORATED
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇, Chief Executive Officer
FIRST USA MERCHANT SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ Taken
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Senior VP & General Counsel
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Name and Title of Signatory