EXHIBIT 7.6
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REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
IVI CHECKMATE CORP.
AND
INGENICO S.A.
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DATED AS OF APRIL 6, 2001
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TABLE OF CONTENTS
SECTION PAGE
1. DEFINITIONS..............................................................1
2. REGISTRATION UNDER THE SECURITIES ACT....................................4
(a) Required Registration.............................................4
(b) Required Shelf Registration.......................................6
(c) Incidental Registration...........................................8
(d) Expenses..........................................................9
(e) Effective Registration Statement; Suspension......................9
(f) Selection of Underwriters........................................10
3. RESTRICTIONS ON PUBLIC SALE BY THE COMPANY..............................10
4. REGISTRATION PROCEDURES.................................................11
5. INDEMNIFICATION; CONTRIBUTION...........................................15
(a) Indemnification by the Company...................................15
(b) Indemnification by Holders.......................................16
(c) Conduct of Indemnification Proceedings...........................16
(d) Contribution.....................................................17
6. MISCELLANEOUS...........................................................18
(a) No Inconsistent Agreements.......................................18
(b) Amendments and Waivers...........................................19
(c) Notices..........................................................19
(d) Successors and Assigns...........................................20
(e) Recapitalizations, Exchanges, etc., Affecting Registrable
Securities....................................................20
(f) Counterparts.....................................................20
(g) Descriptive Headings, Etc........................................20
(h) Severability.....................................................21
(i) Governing Law....................................................21
(j) Specific Performance.............................................21
(k) Entire Agreement.................................................21
(i)
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of
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April 6, 2001, by and between IVI Checkmate Corp., a Delaware corporation (the
"Company"), Ingenico S.A., a societe anonyme organized under the laws of France
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("Parent") and any other Person (as hereinafter defined) that shall from and
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after the date hereof acquire or otherwise be the transferee of any Registrable
Securities (as hereinafter defined) and who shall be a Permitted Transferee (as
hereinafter defined) of Parent (herein referred to collectively as the "Holders"
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and individually as a "Holder", and each term shall be deemed to include Parent
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unless otherwise specified).
WHEREAS, the Company has entered into an Agreement and Plan of
Merger, dated as of April 6, 2001 (the "Merger Agreement"), with Parent and
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Idaho Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
Parent ("Merger Sub"), providing for, among other things, a merger of Merger Sub
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with and into the Company (the "Merger"), whereby each issued share of the
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Company's common stock (the "Common Stock") shall be converted into the right to
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receive $3.30 in cash without interest thereon, upon the terms and subject to
the conditions set forth in the Merger Agreement;
WHEREAS, Parent beneficially owns 4,164,869 shares of Common Stock;
and
WHEREAS, in order to induce Parent to enter into the Merger
Agreement, the Company has agreed to provide registration rights on the terms
and subject to the conditions provided herein;
NOW THEREFORE, in consideration of the promises and the
representations, warranties and agreements contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
SECTION 1. DEFINITIONS.
(a) As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" shall have the meaning set forth in Rule 12b-2
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promulgated under the Exchange Act.
"Blackout Period" shall have the meaning set forth in Section
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2(a)(iv).
"Common Stock" shall have the meaning set forth in the preamble.
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"Company" shall have the meaning set forth in the preamble and
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shall also include the Company's successors.
"Equity Investment" shall have the meaning set forth in the
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preamble.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended from time to time.
"Holder" shall have the meaning set forth in the preamble.
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"Incidental Registration" shall mean a registration required to be
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effected by the Company pursuant to Section 2(c).
"Incidental Registration Statement" shall mean a Registration
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Statement of the Company, as provided in Section 2(c), which covers any of the
Registrable Securities on an appropriate form in accordance with the Securities
Act and all amendments and supplements to such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Majority Holders" shall mean Holders of Common Stock representing
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in the aggregate a majority of the aggregate number of outstanding Common Stock
beneficially owned by Holders.
"Merger" shall have the meaning set forth in the preamble.
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"Merger Agreement" shall have the meaning set forth in the
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preamble.
"Merger Sub" shall have the meaning set forth in the preamble.
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"NASD" shall mean the National Association of Securities Dealers,
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Inc.
"Notice of Request" shall have the meaning set forth in Section
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2(a)(i).
"Permitted Transferee" shall mean any Person which would be a
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"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act.
"Person" shall mean any individual, limited or general partnership,
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corporation, trust, joint venture, association, joint stock company or
unincorporated organization.
"Prospectus" shall mean the prospectus included in a Registration
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Statement, including any preliminary Prospectus, and any such Prospectus as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities and by all other
amendments and supplements to such Prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Registrable Securities" shall mean shares of Common Stock
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beneficially owned by any Holder, but shall not include any share of Common
Stock (i) which has been effectively registered under the Securities Act and
disposed of in accordance with a Registration Statement covering such security
or (ii) which has been distributed to the public pursuant to Rule 144 under the
Securities Act.
"Registration Expenses" shall mean (i) all registration, listing,
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qualification and filing fees (including NASD filing fees), (ii) fees and
disbursements of separate counsel for each of the Company on the one hand and
all of the Holders on the other hand, (iii) accounting fees
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incident to any such registration, (iv) blue sky fees and expenses (including
counsel fees in connection with the preparation of a Blue Sky Memorandum and
legal investment survey), (v) all expenses of any Persons in preparing or
assisting in preparing, printing, distributing, mailing and delivering any
Registration Statement, any Prospectus, any underwriting agreements, transmittal
letters, securities sales agreements, securities certificates and other
documents relating to the performance of and compliance with this Agreement,
(vi) the expenses incurred in connection with making road show presentations and
holding meetings with potential investors to facilitate the distribution and
sale of Registrable Securities which are customarily borne by the issuer, and
(v) all internal expenses of the Company (including all salaries and expenses of
officers and employees performing legal or accounting duties); provided,
however, Registration Expenses shall not include any Selling Expenses.
"Registration Statement" shall mean any registration statement of
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the Company which covers any Registrable Securities and all amendments and
supplements to any such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Required Registration" shall mean a registration required to be
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effected pursuant to Section 2(a).
"Required Registration Statement" shall mean a Registration
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Statement which covers the Registrable Securities requested to be included
therein pursuant to the provisions of Section 2(a) on an appropriate form (in
accordance with Section 4(a) hereof) pursuant to the Securities Act, and which
form shall be available for the sale of the Registrable Securities in accordance
with the intended method or methods of distribution thereof, and all amendments
and supplements to such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Required Shelf Registration" shall have the meaning set forth in
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Section 2(b)(ii).
"Required Shelf Registration Statement" shall have the meaning set
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forth in Section 2(b)(i).
"SEC" shall mean the Securities and Exchange Commission.
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"Securities Act" shall mean the Securities Act of 1933, as amended
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from time to time.
"Selling Expenses" shall mean underwriting discounts, selling
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commissions and stock transfer taxes applicable to the shares registered by the
Holders.
"Shelf Registration Statement" shall have the meaning set forth in
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Section 2(b)(i).
"Shelf Request" shall have the meaning set forth in Section
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2(b)(ii).
"Underwriter" shall have the meaning set forth in Section 5(a).
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"Underwritten Offering" shall mean a sale of securities of the
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Company to an Underwriter or Underwriters for reoffering to the public.
"Withdrawn Request" shall have the meaning set forth in Section
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2(a)(iii).
"Withdrawn Required Registration" shall have the meaning set forth
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in Section 2(a)(iii).
(b) Capitalized terms used herein and not otherwise defined shall
have the meanings assigned such terms in the Merger Agreement.
SECTION 2. REGISTRATION UNDER THE SECURITIES ACT.
(a) Required Registration.
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(i) At any time after the termination of the Merger Agreement, one
or more Holders of Registrable Securities shall have the right to request in
writing (a "Request") (which Request shall specify the Registrable Securities
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intended to be disposed of by such Holders and the intended method of
distribution thereof) that the Company register such Holders' Registrable
Securities by filing with the SEC a Required Registration Statement. Upon the
receipt of such a Request, the Company will, by the fifth business day
thereafter, give written notice of such Request to all Holders (a "Notice of
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Request"), and, not later than the 20th calendar day after the receipt of such
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Request by the Company, the Company will cause to be filed with the SEC a
Required Registration Statement covering the Registrable Securities which the
Company has been so requested to register in such Request and all other
Registrable Securities which the Company has been requested to register by
Holders thereof (other than the Holder(s) initiating the Request) by written
request given to the Company within 6 business days after the giving of such
Notice of Request, providing for the registration under the Securities Act of
the Registrable Securities which the Company has been so requested to register
by all such Holders, to the extent necessary to permit the disposition of such
Registrable Securities so to be registered in accordance with the intended
methods of distribution thereof specified in such Request or further requests,
and shall use its reasonable best efforts to have such Required Registration
Statement declared effective by the SEC as soon as reasonably practicable
thereafter (but in no event later than the 90th calendar day after the receipt
of such a Request) and to keep such Required Registration Statement continuously
effective for a period of at least 60 calendar days (or, in the case of an
Underwritten Offering, such period as the Underwriters shall reasonably require)
following the date on which such Required Registration Statement is declared
effective (or such shorter period which will terminate when all of the
Registrable Securities covered by such Required Registration Statement have been
sold pursuant thereto), including, if necessary, by filing with the SEC a
post-effective amendment or a supplement to the Required Registration Statement
or the related Prospectus or any document incorporated therein by reference or
by filing any other required document or otherwise supplementing or amending the
Required Registration Statement, if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Required Registration Statement or by the Securities Act, the Exchange Act, any
state securities or blue sky laws or any rules and regulations thereunder.
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(ii) The Company shall not be required to effect, pursuant to this
Section 2(a), (x) the initial Required Registration hereunder unless Parent, or
Holders beneficially owning at least 500,000 shares of Common Stock, have
initiated or joined in such Request, and (y) any subsequent Required
Registration hereunder unless initiated or joined in by Parent, or Holders
beneficially owning at least 250,000 shares of Common Stock.
(iii) A Request may be withdrawn prior to the filing of the
Required Registration Statement by Parent where Parent made such Request (a
"Withdrawn Request") and a Required Registration Statement may be withdrawn
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prior to the effectiveness thereof by the Holders of a majority of the
Registrable Securities included therein (a "Withdrawn Required Registration"),
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and, in either such event, such withdrawal shall not be treated as a Required
Registration for purposes of Section 2(a)(v).
(iv) Notwithstanding the foregoing, the Company may delay the
filing of a Registration Statement required pursuant to this Section 2(a) or
suspend sales under the shelf Registration Statement if the Board of Directors
of the Company, by a majority vote, determines that such filing would adversely
affect any contemplated corporate event (including, without limitation, causing
premature disclosure of corporate information) or if the Company in good faith
intends to raise capital in the public or capital markets within 30 days;
provided, however, that such delay shall not exceed 90 days (a "Blackout
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Period"); provided further that after any initial Blackout Period the Company
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may not invoke a subsequent Blackout Period until 12 months elapse from the end
of any previous Blackout Period and the number of days in each Blackout Period
shall be deemed to effect a day-for-day extension of the three-year period
referred to in the first sentence of this Section 2(a) and the first sentence of
Section 2(b), and the three-year period referred to in the proviso to the second
sentence of Section 6(a); and provided further that no delay in filing a
Registration Statement or suspension of sales under the shelf Registration
Statement shall be permitted as a result of the Company's good faith intention
to raise capital in the public or capital markets during the first six months
following effectiveness of the shelf Registration Statement (such six month
period to be extended for the number days during which the Company invokes any
Blackout Period pursuant to the Board of Directors of the Company, by a majority
vote, determining that such filing would adversely affect any contemplated
corporate event (including, without limitation, causing premature disclosure of
corporate information)).
(v) The Holders shall be entitled to a total of 3 Required
Registrations during the term of this Agreement. The Holders, in their sole
discretion, may make one such Required Registration a Required Shelf
Registration in accordance with Section 2(b).
(vi) If a Required Registration pursuant to this Section 2(a)
involves an Underwritten Offering, and the sole Underwriter or the lead managing
Underwriter, as the case may be, of such Underwritten Offering shall advise the
Company in writing (with a copy to each Holder requesting registration) on or
before the date 5 days prior to the date then scheduled for such offering that,
in its opinion, the amount of Registrable Securities requested to be included in
such Required Registration exceeds the amount which can be sold in such offering
without adversely affecting the distribution of the Registrable Securities being
offered, the Company will include in such Required Registration only the amount
of Registrable Securities that the Company is so advised can be sold in such
offering; provided, however, that the Company shall
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be required to include in such Required Registration first, all Registrable
Securities requested to be included in the Required Registration by the Holders
and, to the extent not all such Registrable Securities can be included in such
Required Registration, the number of Registrable Securities to be included shall
be allocated pro rata on the basis of the number of shares of Common Stock
beneficially owned at that time by all the Holders requesting to participate in
the Required Registration or on such other basis as shall be agreed among the
Holders, by agreement of the Majority Holders; and second, if all Registrable
Securities requested to be included in the Required Registration by the Holders
can be so included, all other securities requesting, in accordance with any
registration rights which are granted in compliance with Section 6(a), to be
included in such Required Registration which are of the same class as the
Registrable Securities and, to the extent not all such securities can be
included in such Required Registration, the number of securities to be included
shall be allocated pro rata among the holders thereof requesting inclusion in
such Required Registration on the basis of the number of securities requested
to be included by all such Holders.
(vii) The registration rights granted pursuant to the provisions of
this Section 2(a) shall be in addition to the registration rights granted
pursuant to the other provisions of this Section 2.
(b) Required Shelf Registration.
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(i) The Company agrees that, as promptly as practical after the
termination of the Merger Agreement, and in any event no later than 90 days
thereafter, after the date on which the Merger Agreement is terminated, the
Company shall use its reasonable best efforts to prepare and file with the
Commission a "shelf" Registration Statement on Form S-1 or Form S-3 for an
offering to be made on a continuous basis pursuant to Rule 415 (or any successor
rule) (the "Shelf Registration Statement") covering all of the Registrable
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Securities. The Company will use its reasonable best efforts to have such Shelf
Registration Statement declared effective by the SEC on or as soon as
practicable after the date hereof. The Company shall use its reasonable best
efforts to keep the Shelf Registration Statement continuously effective until
the earlier of (A) the date the Holders can sell all their shares of Registrable
Securities without any restrictions under Rule 144 and (B) the date on which no
Registrable Securities remain outstanding. In the event the Company has complied
with this Section by using a Form S-3 and becomes ineligible to use such Form,
it shall use its reasonable best efforts to substitute therefor, as soon as
practicable, a Form S-1 covering the Registrable Securities.
(ii) If the Company shall at any time receive a request in writing
(a "Shelf Request") from Parent, or from any Holder or Holders holding a minimum
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of 10% of the Registrable Securities then outstanding (but in no event less than
200,000 shares (which number shall be adjusted in accordance with all splits,
pro rata stock dividends or reclassifications of the Common Stock)) requesting
an Underwritten Offering of Registrable Securities under the Shelf Registration
Statement that has anticipated aggregate proceeds at the time of the request
(net of underwriting discounts, commissions and expenses) in excess of $2
million (a "Required Shelf Registration"), the Company shall, subject to the
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terms and conditions hereof, be obligated to use its reasonable best efforts to
facilitate such proposed Underwritten Offering pursuant to the terms of this
Agreement.
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(iii) Following receipt of a Shelf Request, the Company shall
promptly, but in no event later than the fifth business day following receipt of
such Shelf Request, give a Notice of Offering to all Holders (other than the
Holder or Holders that made the Shelf Request), which shall set forth the right
of such Holders to include any or all shares of Registrable Securities held by
such Holders in the proposed offering, subject to the terms of this Agreement.
(iv) If at any time any of the Holders of the Registrable
Securities covered by the Shelf Registration Statement desire to sell
Registrable Securities in an Underwritten Offering (which for the purposes of
this Agreement shall not be deemed to include block trades) in accordance with
the limitations of this Section 2(b)(iv), the investment banker or investment
bankers that will manage the offering will be nationally recognized underwriters
selected jointly by the Company, the Holder initiating such underwritten
offering and the Holders owning a majority of the Registrable Securities held by
Holders included in such offering.
(v) If a Required Shelf Registration pursuant to this Section 2(b)
involves an Underwritten Offering, and the sole Underwriter or the lead managing
Underwriter, as the case may be, of such Underwritten Offering shall advise the
Company in writing (with a copy to each Holder requesting registration) on or
before the date 5 days prior to the date then scheduled for such offering that,
in its opinion, the amount of Registrable Securities requested to be included in
such Required Shelf Registration exceeds the amount which can be sold in such
offering without adversely affecting the distribution of the Registrable
Securities being offered, the Company will include in such Required Shelf
Registration only the amount of Registrable Securities that the Company is so
advised can be sold in such offering; provided, however, that the Company shall
be required to include in such Required Shelf Registration first, all
Registrable Securities requested to be included in the Required Shelf
Registration by the Holders and, to the extent not all such Registrable
Securities can be included in such Required Shelf Registration, the number of
Registrable Securities to be included shall be allocated pro rata on the basis
of the number of shares of Common Stock beneficially owned at that time by all
the Holders requesting to participate in the Required Shelf Registration or on
such other basis as shall be agreed among the Holders, by agreement of the
Majority Holders; and second, if all Registrable Securities requested to be
included in the Required Shelf Registration by the Holders can be so included,
all other securities requesting, in accordance with any registration rights
which are granted in compliance with Section 6(a) of this Agreement, to be
included in such Required Shelf Registration which are of the same class as the
Registrable Securities and, to the extent not all such securities can be
included in such Required Shelf Registration, the number of securities to be
included shall be allocated pro rata among the holders thereof requesting
inclusion in such Required Shelf Registration on the basis of the number of
securities requested to be included by all such Holders.
(vi) A Shelf Request may be withdrawn prior to the filing of the
Shelf Registration Statement by Parent where Parent made such Request (a
"Withdrawn Shelf Request"), and a Required Shelf Registration Statement may be
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withdrawn prior to the effectiveness thereof by the Holders of a majority of the
Registrable Securities included therein (a "Withdrawn Required Shelf
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Registration"), and, in either such event, such withdrawal shall not be treated
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as a Required Registration or a Required Shelf Registration for purposes of
Section 2(a)(v).
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(vii) The registration rights granted pursuant to the provisions of
this Section 2(b) shall be in addition to the registration rights granted
pursuant to the other provisions of this Section 2.
(c) Incidental Registration.
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(i) If at any time after the date hereof, the Company proposes to
register any of its Common Stock under the Securities Act (other than (A) any
registration of public sales or distributions solely by and for the account of
the Company of securities issued (x) pursuant to any employee benefit or similar
plan or any dividend reinvestment plan or (y) in any acquisition by the Company,
or (B) pursuant to Sections 2(a) or (b) hereof), either in connection with a
primary offering for cash for the account of the Company or a secondary
offering, the Company will, each time it intends to effect such a registration,
give written notice to all Holders of Registrable Securities at least 10
business days prior to the initial filing of a Registration Statement with the
SEC pertaining thereto, informing such Holders of its intent to file such
Registration Statement and of the Holders' rights to request the registration of
the Registrable Securities held by the Holders under this Section 2(c) (the
"Company Notice"). Upon the written request of any Holder made within 5 business
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days after any such Company Notice is given (which request shall specify the
Registrable Securities intended to be disposed of by such Holder and such
Holder's Permitted Transferees and, unless the applicable registration is
intended to effect a primary offering of Common Stock for cash for the account
of the Company, the intended method of distribution thereof), the Company will
use its reasonable best efforts to effect the registration under the Securities
Act of all Registrable Securities which the Company has been so requested to
register by such Holders to the extent required to permit the disposition (in
accordance with the intended methods of distribution thereof or, in the case of
a registration which is intended to effect a primary offering for cash for the
account of the Company, in accordance with the Company's intended method of
distribution) of the Registrable Securities so requested to be registered,
including, if necessary, by filing with the SEC a post-effective amendment or a
supplement to the Incidental Registration Statement or the related Prospectus or
any document incorporated therein by reference or by filing any other required
document or otherwise supplementing or amending the Incidental Registration
Statement, if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Incidental Registration
Statement or by the Securities Act, any state securities or blue sky laws, or
any rules and regulations thereunder; provided, however, that if, at any time
after giving written notice of its intention to register any securities and
prior to the effective date of the Incidental Registration Statement filed in
connection with such registration, the Company shall determine for any reason
not to register or to delay registration of such securities, the Company may, at
its election, give written notice of such determination to each Holder of
Registrable Securities and, thereupon, (A) in the case of a determination not to
register, the Company shall be relieved of its obligation to register any
Registrable Securities in connection with such registration (but not from its
obligation to pay the Registration Expenses incurred in connection therewith),
and (B) in the case of a determination to delay such registration, the Company
shall be permitted to delay registration of any Registrable Securities requested
to be included in such Incidental Registration Statement for the same period as
the delay in registering such other securities.
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(ii) If a registration pursuant to this Section 2(b) involves an
Underwritten Offering of the securities so being registered, whether or not for
sale for the account of the Company, and the sole Underwriter or the lead
managing Underwriter, as the case may be, of such Underwritten Offering shall
advise the Company in writing (with a copy to each Initial Holder of Registrable
Securities requesting registration) on or before the date 5 days prior to the
date then scheduled for such offering that, in its opinion, the amount of
securities (including Registrable Securities) requested to be included in such
registration exceeds the amount which can be sold in (or during the time of)
such offering without adversely affecting the distribution of the securities
being offered, then the Company will include in such registration first, all the
securities entitled to be sold pursuant to such Registration Statement without
reference to the incidental registration rights of any holder (including
Holders), and second, the amount of other securities (including Registrable
Securities) requested to be included in such registration that the Company is so
advised can be sold in (or during the time of) such offering, allocated, if
necessary, pro rata among the holders (including the Holders) thereof requesting
such registration on the basis of the number of the securities (including
Registrable Securities) beneficially owned at the time by the holders (including
Holders) requesting inclusion of their securities; provided, however, that in
the event the Company will not, by virtue of this paragraph, include in any such
registration all of the Registrable Securities of any Holder requested to be
included in such registration, such Holder may, upon written notice to the
Company given within 3 days of the time such Holder first is notified of such
matter, reduce the amount of Registrable Securities it desires to have included
in such registration, whereupon only the Registrable Securities, if any, it
desires to have included will be so included and the Holders not so reducing
shall be entitled to a corresponding increase in the amount of Registrable
Securities to be included in such registration.
(iii) The registration rights granted pursuant to the provisions of
this Section 2(c) shall be in addition to the registration rights granted
pursuant to the other provisions of this Section 2.
(d) Expenses. The Company agrees to pay all Registration Expenses
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in connection with (i) each of the registrations requested pursuant to Section
2(a) and Section 2(b) and (ii) each registration as to which Holders request
inclusion of Registrable Securities pursuant to Section 2(c). All Selling
Expenses relating to securities registered on behalf of Holders shall be borne
by the Holders of shares included in such registration, other selling
stockholders and the Company pro rata on the basis of the number of shares of
Common Stock so registered.
(e) Effective Registration Statement; Suspension. Subject to
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Sections 2(a)(iii) and 2(b)(vi), as applicable, a Registration Statement
pursuant to Section 2(a), 2(b) or 2(c), as the case may be, will not be deemed
to have become effective (and the related registration will not be deemed to
have been effected) unless it has been declared effective by the SEC prior to a
request by the Holders of a majority of the Registrable Securities included in
such registration that such Registration Statement or Shelf Registration
Statement, as the case may be, be withdrawn; provided, however, that if, after
it has been declared effective, the offering of any Registrable Securities
pursuant to such Registration Statement or Shelf Registration Statement, as the
case may be, is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such
Registration Statement or Shelf
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Registration Statement, as the case may be, will be deemed not to have become
effective and the related registration will not be deemed to have been effected.
Any period during which the Company fails to keep any Required
Registration Statement or Shelf Registration Statement, as the case may be,
effective and usable for resale of Registrable Securities shall be referred to
as a "Suspension Period." A Suspension Period shall commence on and include the
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date that the Company gives notice that any Required Registration Statement or
Shelf Registration Statement, as the case may be, is no longer effective or
usable for resale of Registrable Securities to and including the date when each
Holder of Registrable Securities covered by such Required Registration Statement
or Shelf Registration Statement, as the case may be, either receives the copies
of the supplemented or amended Prospectus contemplated by Section 4(j) or is
advised in writing by the Company that the use of the Prospectus may be resumed.
In the event of one or more Suspension Periods, the applicable time period
referenced in the first paragraph of Section 2(a)(i)) shall be extended by the
number of days included in each such Suspension Period, and, in the event any
Suspension Period occurs sooner than 30 days after the end of the previous
Suspension Period or 30 days after the initial effectiveness of any Required
Registration Statement or Shelf Registration Statement, as the case may be, none
of the days between such Suspension Periods or prior to such Suspension Period
shall be included in computing such applicable time period.
(f) Selection of Underwriters. At any time or from time to time,
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the Holders of a majority of the Registrable Securities covered by a Required
Registration Statement or Shelf Registration Statement, as the case may be, may
elect to have such Registrable Securities sold in an Underwritten Offering and
may select the investment banker or investment bankers and manager or managers
that will serve as lead and co-managing Underwriters with respect to the
offering of such Registrable Securities, subject to the consent of the Company
which shall not be unreasonably withheld. No Holder may participate in any
Underwritten Offering hereunder unless such Holder (a) agrees to sell such
Holder's securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, custody
agreements, indemnities, underwriting agreements and other documents required
under the terms of such Underwritten Offering.
SECTION 3. RESTRICTIONS ON PUBLIC SALE BY THE COMPANY.
If requested by the sole Underwriter or lead managing
Underwriter(s) in such Underwritten Offering, the Company agrees not to effect
any public sale or distribution (other than, in the case of the Company, public
sales or distributions solely by and for the account of the Company of
securities issued pursuant to any employee benefit or similar plan or any
dividend reinvestment plan) of any securities during the period commencing on
the date the Company receives a Request from Parent and continuing until 90 days
after the commencement of an Underwritten Offering (or for such shorter period
as the sole or lead managing Underwriter shall request) unless earlier
terminated by the sole Underwriter or lead managing Underwriter(s) in such
Underwritten Offering.
-10-
SECTION 4. REGISTRATION PROCEDURES.
In connection with the obligations of the Company pursuant to
Section 2, the Company shall use its reasonable best efforts to effect or cause
to be effected the registration of the Registrable Securities under the
Securities Act to permit the sale of such Registrable Securities by the Holders
in accordance with their intended method or methods of distribution, and the
Company shall:
(a) (i) prepare and file a Registration Statement with the SEC
which (x) shall be on Form S-3 (or any successor to such form), if available,
(y) shall be available for the sale or exchange of the Registrable Securities in
accordance with the intended method or methods of distribution by the selling
Holders thereof, and (z) shall comply as to form with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith and all other information reasonably requested by the lead
managing Underwriter or sole Underwriter, if applicable, to be included therein,
(ii) use its reasonable best efforts to cause such Registration Statement to
become effective and remain effective in accordance with Section 2, (iii) use
its reasonable best efforts to not take any action that would cause a
Registration Statement to contain a material misstatement or omission or to be
not effective and usable for resale of Registrable Securities during the period
that such Registration Statement is required to be effective and usable, and
(iv) cause each Registration Statement and the related Prospectus and any
amendment or supplement thereto, as of the effective date of such Registration
Statement, amendment or supplement (x) to comply in all material respects with
any requirements of the Securities Act and the rules and regulations of the SEC
and (y) not to contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading;
(b) subject to paragraph (j) of this Section 4, prepare and file
with the SEC such amendments and post-effective amendments to each such
Registration Statement, as may be necessary to keep such Registration Statement
effective for the applicable period; cause each such Prospectus to be
supplemented by any required prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by each Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the selling
Holders thereof, as set forth in such Registration Statement;
(c) furnish to each Holder of Registrable Securities and to each
Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other documents as
such Holder or Underwriter may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Securities; the Company
hereby consents to the use of the Prospectus, including each preliminary
Prospectus, by each Holder of Registrable Securities and each Underwriter of an
Underwritten Offering of Registrable Securities, if any, in connection with the
offering and sale of the Registrable Securities covered by the Prospectus or the
preliminary Prospectus (the Holders hereby agreeing not to make a broad public
dissemination of a form of preliminary Prospectus which is designed to be a
"quiet filing" without the Company's consent, such consent to not be withheld
unreasonably);
-11-
(d) (i) use its reasonable best efforts to register or qualify the
Registrable Securities, no later than the time the applicable Registration
Statement is declared effective by the SEC, under all applicable state
securities or "blue sky" laws of such jurisdictions as each Underwriter, if any,
or any Holder of Registrable Securities covered by a Registration Statement,
shall reasonably request; (ii) use its reasonable best efforts to keep each such
registration or qualification effective during the period such Registration
Statement is required to be kept effective; and (iii) do any and all other acts
and things which may be reasonably necessary or advisable to enable each such
Underwriter, if any, and Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder; provided,
however, that the Company shall not be obligated to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to consent to be subject to general service of process (other
than service of process in connection with such registration or qualification or
any sale of Registrable Securities in connection therewith) in any such
jurisdiction;
(e) notify each Holder of Registrable Securities promptly, and, if
requested by such Holder, confirm such advice in writing, (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of the issuance by the
SEC or any state securities authority of any stop order, injunction or other
order or requirement suspending the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose, (iii) if, between the
effective date of a Registration Statement and the closing of any sale of
securities covered thereby pursuant to any agreement to which the Company is a
party, the representations and warranties of the Company contained in such
agreement cease to be true and correct in all material respects or if the
Company receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, and (iv) of the happening of any
event during the period a Registration Statement is effective as a result of
which such Registration Statement or the related Prospectus contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading;
(f) furnish counsel for each such Underwriter, if any, and for the
Holders of Registrable Securities copies of any request by the SEC or any state
securities authority for amendments or supplements to a Registration Statement
and Prospectus or for additional information;
(g) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at the
earliest possible time;
(h) upon request, furnish to the sole Underwriter or lead managing
Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, at least one signed copy of each Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits; and furnish to
each Holder of Registrable Securities, without charge, at least one conformed
copy of each Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits thereto, unless
requested);
-12-
(i) cooperate with the selling Holders of Registrable Securities
and the sole Underwriter or lead managing Underwriter of an Underwritten
Offering of Registrable Securities, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and enable such Registrable Securities to
be in such denominations (consistent with the provisions of the governing
documents thereof) and registered in such names as the selling Holders or the
sole Underwriter or lead managing Underwriter of an Underwritten Offering of
Registrable Securities, if any, may reasonably request at least three business
days prior to any sale of Registrable Securities;
(j) upon the occurrence of any event contemplated by paragraph
(e)(iv) of this Section, use its reasonable best efforts to prepare a supplement
or post-effective amendment to a Registration Statement or the related
Prospectus, or any document incorporated therein by reference, or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(k) enter into customary agreements (including, in the case of an
Underwritten Offering, underwriting agreements in customary form, and including
provisions with respect to indemnification and contribution in customary form
and consistent with the provisions relating to indemnification and contribution
contained herein) and take all other customary and appropriate actions in order
to expedite or facilitate the disposition of such Registrable Securities and in
connection therewith:
(1) make such representations and warranties to the Holders of
such Registrable Securities and the Underwriters, if any, in form,
substance and scope as are customarily made by issuers to underwriters
in similar underwritten offerings;
(2) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the lead managing Underwriter, if any, and
the holders of a majority of the Registrable Securities being sold)
addressed to each selling Holder and the Underwriters, if any, covering
the matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as may be
reasonably requested by such Holders and Underwriters;
(3) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the
selling Holders of Registrable Securities, if permissible, and the
Underwriters, if any, which letters shall be customary in form and shall
cover matters of the type customarily covered in "cold comfort" letters
to underwriters in connection with primary underwritten offerings;
(4) to the extent requested and customary for the relevant
transaction, enter into a securities sales agreement with the Holders
and such representative of the selling Holders as the Majority Holders
of the Registrable Securities covered by any Registration
-13-
Statement relating to the Registration and providing for, among other
things, the appointment of such representative as agent for the selling
Holders for the purpose of soliciting purchases of Registrable
Securities, which agreement shall be customary in form, substance and
scope and shall contain customary representations, warranties and
covenants; and
(5) deliver such customary documents and certificates as may be
reasonably requested by the Majority Holders of the Registrable
Securities being sold or by the managing Underwriters, if any.
The above shall be done (i) at the effectiveness of such Registration Statement
(and each post-effective amendment thereto) in connection with any registration,
and (ii) at each closing under any underwriting or similar agreement as and to
the extent required thereunder;
(l) make available for inspection by representatives of the
Holders and any Underwriters participating in any disposition pursuant to a
Registration Statement and any counsel or accountant retained by such Holders or
Underwriters, all relevant financial and other records, pertinent corporate
documents and properties of the Company and cause the respective officers,
directors and employees of the Company to supply all information reasonably
requested by any such representative, Underwriter, counsel or accountant in
connection with a Registration Statement;
(m) (i) within a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus, provide copies of such
document to the Holders and the Holders' counsel and to the Underwriter or
Underwriters of an Underwritten Offering of Registrable Securities, if any;
fairly consider such reasonable changes in any such document prior to or after
the filing thereof as the counsel to the Holders or the Underwriter or the
Underwriters may request and not file any such document in a form to which the
holders of a majority of the Registrable Securities being registered or any
Underwriter shall reasonably object; and make such of the representatives of the
Company as shall be reasonably requested by the Holders of Registrable
Securities being registered or any Underwriter available for discussion of such
document;
(ii) within a reasonable time prior to the filing of any document
which is to be incorporated by reference into a Registration Statement or a
Prospectus, provide copies of such document to counsel for the Holders; fairly
consider such reasonable changes in such document prior to or after the filing
thereof as counsel for such Holders or such Underwriter shall request; and make
such of the representatives of the Company as shall be reasonably requested by
such counsel available for discussion of such document;
(n) cause all Registrable Securities to be qualified for inclusion
in or listed on the Nasdaq Stock Market or any securities exchange on which
securities of the same class issued by the Company are then so qualified or
listed if so requested by the Majority Holders of Registrable Securities covered
by a Registration Statement, or if so requested by the Underwriter or
Underwriters of an Underwritten Offering of Registrable Securities, if any;
-14-
(o) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, including making available to its
security holders an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(p) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
Underwriter in an Underwritten Offering; and
(q) use its reasonable best efforts to facilitate the distribution
and sale of any Registrable Securities to be offered pursuant to this Agreement,
including without limitation by making road show presentations, holding meetings
with potential investors and taking such other actions as shall be requested by
the Majority Holders of Registrable Securities covered by a Registration
Statement or the lead managing Underwriter of an Underwritten Offering.
Each selling Holder of Registrable Securities as to which any
registration is being effected pursuant to this Agreement agrees, as a condition
to the registration obligations with respect to such Holder provided herein, to
furnish to the Company such information regarding such Holder required to be
included in the Registration Statement, the ownership of Registrable Securities
by such Holder and the proposed distribution by such Holder of such Registrable
Securities as the Company may from time to time reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in paragraph (e)(iv)
of this Section, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the affected Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus,
contemplated by paragraph (j) of this Section, and, if so directed by the
Company, such Holder will deliver to the Company (at the expense of the
Company), all copies in its possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable Securities
which was current at the time of receipt of such notice.
SECTION 5. INDEMNIFICATION; CONTRIBUTION.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Person who participates as an underwriter
(any such Person being an "Underwriter"), each Holder and their respective
partners, directors, officers and employees and each Person, if any, who
controls any Holder or Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all losses, liabilities, claims, damages,
judgments and reasonable expenses whatsoever, as incurred, arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement pursuant to which Registrable
Securities were registered under the Securities Act, including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus, including all documents
-15-
incorporated therein by reference, or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all losses, liabilities, claims, damages,
judgments and reasonable expenses whatsoever, as incurred, to the extent
of the aggregate amount paid in settlement of any litigation,
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any other claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement
or omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all reasonable expense whatsoever, as
incurred (including fees and disbursements of counsel), incurred in
investigating, preparing or defending against any litigation,
investigation or proceeding by any governmental agency or body,
commenced or threatened, in each case whether or not such Person is a
party, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under sub-paragraph (i) or (ii)
above;
provided, however, that this indemnity agreement does not apply to any Holder or
Underwriter with respect to any loss, liability, claim, damage, judgment or
expense to the extent arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus, or the omission or
alleged omission therefrom of a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in any such case made in reliance upon and in conformity with
written information furnished to the Company by such Holder or Underwriter
expressly for use in a Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto).
(b) Indemnification by Holders. (i) Each selling Holder severally
--------------------------
agrees to indemnify and hold harmless the Company, each Underwriter and the
other selling Holders, and each of their respective partners, directors,
officers and employees (including each officer of the Company who signed the
Registration Statement), and each Person, if any, who controls the Company, any
Underwriter or any other selling Holder within the meaning of Section 15 of the
Securities Act, against any and all losses, liabilities, claims, damages,
judgments and expenses described in the indemnity contained in paragraph (a) of
this Section (provided that any settlement of the type described therein is
effected with the written consent of such selling Holder), as incurred, but only
with respect to untrue statements or alleged untrue statements of a material
fact contained in any Prospectus or the omissions, or alleged omissions
therefrom of a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, in any
such case made in reliance upon and in conformity with written information
furnished to the Company by such selling Holder expressly for use in such
Registration Statement (or any amendment thereto) or such Prospectus (or any
amendment or supplement thereto).
(c) Conduct of Indemnification Proceedings. Each indemnified party
--------------------------------------
or parties shall give reasonably prompt notice to each indemnifying party or
parties of any action or
-16-
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure so to notify an indemnifying party or parties shall not
relieve it or them from any liability which it or they may have under this
indemnity agreement, except to the extent that the indemnifying party is
materially prejudiced by such failure to give notice. If the indemnifying party
or parties so elects within a reasonable time after receipt of such notice, the
indemnifying party or parties may assume the defense of such action or
proceeding at such indemnifying party's or parties' expense with counsel chosen
by the indemnifying party or parties and approved by the indemnified party
defendant in such action or proceeding, which approval shall not be unreasonably
withheld; provided, however, that, if such indemnified party or parties
determine in good faith that a conflict of interest exists and that therefore it
is advisable for such indemnified party or parties to be represented by separate
counsel or that, upon advice of counsel, there may be legal defenses available
to it or them which are different from or in addition to those available to the
indemnifying party, then the indemnifying party or parties shall not be entitled
to assume such defense and the indemnified party or parties shall be entitled to
separate counsel (limited in each jurisdiction to one counsel for all
Underwriters and another counsel for all other indemnified parties under this
Agreement) at the indemnifying party's or parties' expense. If an indemnifying
party or parties is not so entitled to assume the defense of such action or does
not assume such defense, after having received the notice referred to in the
first sentence of this paragraph, the indemnifying party or parties will pay the
reasonable fees and expenses of counsel for the indemnified party or parties
(limited in each jurisdiction to one counsel for all Underwriters and another
counsel for all other indemnified parties under this Agreement). No indemnifying
party or parties will be liable for any settlement effected without the written
consent of such indemnifying party or parties, which consent shall not be
unreasonably withheld. If an indemnifying party is entitled to assume, and
assumes, the defense of such action or proceeding in accordance with this
paragraph, such indemnifying party or parties shall not, except as otherwise
provided in this subsection (c), be liable for any fees and expenses of counsel
for the indemnified parties incurred thereafter in connection with such action
or proceeding.
(d) Contribution.
------------
(i) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Section is
for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms in respect of any losses, liabilities,
claims, damages, judgments and expenses suffered by an indemnified party
referred to therein, each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, liabilities, claims, damages,
judgments and expenses in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and of the liable selling Holders
(including, in each case, that of their respective officers, directors,
employees and agents) on the other in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages, judgments
or expenses, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of the liable selling Holders
(including, in each case, that of their respective officers, directors,
employees and agents) on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state
-17-
a material fact relates to information supplied by the Company, on the one hand,
or by or on behalf of the selling Holders, on the other, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, liabilities, claims, damages, judgments and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in paragraph (c) of this Section, any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim.
(ii) The Company and each Holder of Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this
paragraph (d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in sub-paragraph (i) above. Notwithstanding the provisions of this paragraph
(d), in the case of distributions to the public, an indemnifying Holder shall
not be required to contribute any amount in excess of the amount by which (A)
the total price at which the Registrable Securities sold by such indemnifying
Holder and its affiliated indemnifying Holders and distributed to the public
were offered to the public exceeds (B) the amount of any damages which such
indemnifying Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(iii) For purposes of this Section, each Person, if any, who
controls a Holder or an Underwriter within the meaning of Section 15 of the
Securities Act (and their respective partners, directors, officers and
employees) shall have the same rights to contribution as such Holder or
Underwriter; and each director of the Company, each officer of the Company who
signed the Registration Statement, and each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act, shall have the
same rights to contribution as the Company.
SECTION 6. MISCELLANEOUS.
(a) No Inconsistent Agreements. The Company will not on or after
--------------------------
the date of this Agreement enter into any agreement which conflicts with the
provisions of this Agreement or which grants registration or similar rights nor
has the Company entered into any such agreement, except for the registration
rights which have been granted heretofore pursuant to (i) that certain Asset
Purchase Agreement by and between IVI Checkmate Corporation, DataCard Financial
Systems Corporation, and DataCard Corporation dated April 1, 1999 and the
related Series D Preferred Stock issued pursuant to such Asset Purchase
Agreement and having the rights as set forth in the Certificate of the Powers,
Designations, Preferences and Rights of the Series D Preferred Stock of IVI
Checkmate Corp, including the registration rights agreement made part thereof
and (ii) that certain Compromise Agreement, dated March 29, 2000, by and
between, IVI Checkmate Corporation and or its affiliates and Mr. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇ & ▇▇▇▇▇▇▇ & Co, including the registration rights agreement
made part thereof, and the Company will not on or after the date of this
Agreement modify in any manner adverse to the Holders such existing agreements;
provided, however, that nothing in this sentence shall prohibit the Company from
granting registration rights to any Person (a "Third Party") who becomes an
-----------
owner of
-18-
Common Stock after the termination of the Merger Agreement (including granting
incidental registration rights with respect to any Registration Statement
required to be filed or maintained hereunder) if, and only if, (i) the
Third-Party's registration rights (including, without limitation, demand
registration rights) provide to the Holders of Registrable Securities who seek
to participate in such registration (whether or not such registration is
initiated hereunder) rights no less favorable to such Holders than those rights
provided to the Holders hereunder as if such registration were a Required
Registration (including, without limitation, the priority provisions contained
in Sections 2(a)(vi)), provided further however, that if such registration is
not initiated by the Initial Holders such registration shall not be deemed one
of the three Required Registrations for purposes of the limitations contained in
the second paragraph of Section 2(a)(v), and (ii) require the Third Party to
enter into the agreements provided for in Section 3 hereof (as if it were the
Company) on the terms and for the period applicable to the Company (including
preventing sales pursuant to Rule 144 under the Securities Act) if requested by
the sole Underwriter or lead managing Underwriter in an Underwritten Offering
initiated by Holders of Registrable Securities pursuant to Section 2(a). The
rights granted to the Holders hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of a
majority of the Holders and, if any such amendment, modification, supplement,
waiver or consent would adversely affect the rights of any Holder hereunder, the
written consent of each Holder which is affected shall be obtained; provided,
however, that nothing herein shall prohibit any amendment, modification,
supplement, waiver or consent the effect of which is limited only to those
Holders who have agreed to such amendment, modification, supplement, waiver or
consent.
(c) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand delivery, telex,
telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder,
at the most current address given by such Holder to the Company by means of a
notice given in accordance with the provisions of this paragraph (c), which
address initially is, with respect to each Holder as of the date hereof, the
address set forth next to such Holder's name on the signature pages hereof with
a copy to ▇▇▇▇▇ ▇. ▇▇▇▇, Esq. and ▇▇▇▇▇ ▇. ▇▇▇▇, Esq., telecopier number (212)
403-2000, and with respect to each Holder who becomes such after the date
hereof, the address of such Holder in the stock or warrant records of the
Company, or (ii) if to the Company at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer, and thereafter at such other address, notice
of which is given in accordance with the provisions of this paragraph (c), with
a copy to ▇▇▇▇▇ ▇. Hobby, Esq. and W. Tinley ▇▇▇▇▇▇▇▇, III, Esq., telecopier
number (▇▇▇) ▇▇▇-▇▇▇▇. Notwithstanding the foregoing, the Company shall not be
obligated to provide any notice to any other than Parent except with respect to
a Required, Required Shelf or Incidental Registration Statement which has been
filed and pursuant to which such Holder is identified as a selling stockholder.
-19-
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to a courier guaranteeing overnight
delivery. Notwithstanding the foregoing, nothing in this Section 6(d) is
intended to enlarge the class of Persons which are Holders, as defined in the
preamble of this Agreement, and thus entitled to the rights granted hereunder.
(d) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without the need for an express assignment,
subsequent Holders. If any successor, assignee or transferee of any Holder shall
acquire Registrable Securities in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable Securities such
Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement and to receive the benefits
hereof. Notwithstanding the foregoing, nothing in this Section 6(d) is intended
to enlarge the class of Persons which are Holders, as defined in the preamble of
this Agreement, and thus entitled to the rights granted hereunder. For purposes
of this Agreement, "successor" for any entity other than a natural person shall
mean a successor to such entity as a result of such entity's merger,
consolidation, liquidation, dissolution, sale of substantially all of its
assets, or similar transaction.
(e) Recapitalizations, Exchanges, etc., Affecting Registrable
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Securities. The provisions of this Agreement shall apply, to the full extent set
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forth herein with respect to the Registrable Securities, to any and all
securities or capital stock of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets or otherwise) which
may be issued in respect of, in exchange for, or in substitution of such
Registrable Securities, by reason of any dividend, split, issuance, reverse
split, combination, recapitalization, reclassification, merger, consolidation or
otherwise. Upon the occurrence of any of such events, Common Share amounts
hereunder shall be appropriately adjusted if necessary.
(f) Counterparts. This Agreement may be executed in two or more
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counterparts, each of which, when so executed and delivered, shall be deemed to
be an original, but all of which counterparts, taken together, shall constitute
one and the same instrument.
(g) Descriptive Headings, Etc. The headings in this Agreement are
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for convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Agreement
otherwise requires: (1) words of any gender shall be deemed to include each
other gender; (2) words using the singular or plural number shall also include
the plural or singular number, respectively; (3) the words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section and paragraph references are to the Articles,
Sections and paragraphs to this Agreement unless otherwise specified; (4) the
word "including" and words of similar import when used in this Agreement shall
mean "including, without limitation," unless otherwise specified; (5) "or" is
--
not exclusive; and (6) provisions apply to successive events and transactions.
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(h) Severability. In the event that any one or more of the
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provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the other remaining provisions,
paragraphs, words, clauses, phrases or sentences hereof shall not be in any way
impaired, it being intended that all rights, powers and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF).
(j) Specific Performance. The parties hereto acknowledge that
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there would be no adequate remedy at law if any party fails to perform in any
material respect any of its obligations hereunder, and accordingly agree that
each party, in addition to any other remedy to which it may be entitled at law
or in equity, shall be entitled to compel specific performance of the
obligations of any other party under this Agreement in accordance with the terms
and conditions of this Agreement in any court of the United States or any State
thereof having jurisdiction.
(k) Entire Agreement. This Agreement is intended by the parties as
----------------
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the Company, on the one hand, and
the other parties to this Agreement, on the other, with respect to such subject
matter.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first written above.
IVI CHECKMATE CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President and CFO
INGENICO S.A.
By: /s/ ▇▇▇▇-▇▇▇▇▇▇▇ Poutrel
-------------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇▇ Poutrel
Title: President and CEO
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