1
EXHIBIT 4.1
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Second Amended and Restated Registration Rights Agreement (the
"AGREEMENT") dated as of November 23, 1999 is entered into by and among Secure
Commerce Services, Inc., a Delaware corporation (the "COMPANY"), ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇ (each a "FOUNDER" and collectively, the
"FOUNDERS"), and the persons and entities listed on Exhibit A hereto. The
persons and entities listed on Exhibit A are sometimes referred to in this
Agreement as "INVESTORS," and each as an "INVESTOR".
WHEREAS, concurrently with the execution of this Agreement, certain
Investors are purchasing 13,274,338 shares of Series C Convertible Preferred
Stock, par value $0.0001 per share, pursuant to that certain Series C
Convertible Preferred Stock Purchase Agreement of even date herewith; and
WHEREAS, a certain Investor has purchased from the Company an aggregate
of 1,000,000 shares of Series A Convertible Preferred Stock, $0.0001 par value
per share of the Company and a warrant to purchase 1,000,000 shares of the
Company's common stock, $0.0001 par value per share (the "COMMON STOCK") (the
"WARRANT"), each pursuant to a Subscription Agreement between the Company and
such Investor dated as of February 4, 1999 (the "SUBSCRIPTION AGREEMENT");
WHEREAS, certain Investors have purchased from the Company an aggregate
of 7,926,829 shares of Series B Convertible Preferred Stock, par value $0.0001
per share, pursuant to that certain Series B Convertible Preferred Stock
Purchase Agreement dated May 28, 1999 (the "SERIES B PURCHASE AGREEMENT"); and
WHEREAS, the parties hereto desire to grant to the Investors certain
demand and incidental registration rights, desire to amend and restate the
Amended and Restated Registration Rights Agreements between the purchasers of
the Series A Preferred Stock, Series B Preferred Stock and the Company dated May
28, 1999 and desire to grant to the Founders certain incidental registration
rights.
NOW THEREFORE, in consideration of the premises and mutual covenants
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
1.1 "COMMISSION" means the Securities and Exchange Commission,
or any other Federal agency at the time administering the Securities Act.
2
1.2 "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended, or any similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
1.3 "PREFERRED STOCK" means the Series A Preferred, the Series
B Preferred and the Series C Preferred.
1.4 "QUALIFIED PUBLIC OFFERING" means the first underwritten
public offering of the Company's Common Stock pursuant to a Registration
Statement under the Securities Act in which the aggregate gross proceeds to the
Company are no less than $20,000,000 and at a per share price of no less than
$7.00 (as adjusted for stock splits, stock dividends, recapitalizations and
similar events).
1.5 "REGISTRABLE SHARES" means (i) the Series A Conversion
Shares; (ii) the Series B Conversion Shares; (iii) the Series C Conversion
Shares; (iv) any shares of Common Stock purchased or acquired by the Investors
subsequent to the date hereof including upon exercise of the Warrant; (v) any
other shares of Common Stock of the Company issued in respect of the shares
described in clauses (i), (ii), (iii) and (iv) above (because of stock splits,
stock dividends, reclassifications, recapitalizations, or similar events); and
(vi) for the purposes of Section 4 only, shares of Common Stock of the Company
held by the Founders; provided, however, that shares of Common Stock that are
Registrable Shares shall cease to be Registrable Shares (x) upon any sale
pursuant to a Registration Statement, Section 4(l) of the Securities Act or Rule
144 under the Securities Act, (y) with respect to a Stockholder, when such
Stockholder is eligible to sell, transfer or otherwise convey all of such
Stockholder's Registrable Shares pursuant to Rule 144 under the Securities Act
in any 3 month period or (z) upon any sale in any manner to a person or entity
which, by virtue of Section 11 of this Agreement, is not entitled to the rights
provided by this Agreement. Wherever reference is made in this Agreement to a
request or consent of holders of a certain percentage of Registrable Shares, the
determination of such percentage shall include shares of Common Stock issuable
upon conversion of the Series A Preferred, Series B Preferred and Series C
Preferred, even if such conversion has not yet been effected.
1.6 "REGISTRATION EXPENSES" means the expenses described in
Section 6.
1.7 "REGISTRATION STATEMENT" means a registration statement
filed by the Company with the Commission for a public offering and sale of
securities of the Company (other than a registration statement on Form S-8 or
Form S-4, or their successors, or any other form for a limited purpose, or any
registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation).
1.8 "SECURITIES ACT" means the Securities Act of 1933, as
amended, or any similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
1.9 "SERIES A CONVERSION SHARES" means the shares of Common
Stock into which each share of Series A Preferred has been converted or is then
convertible
2
3
1.10 "SERIES A PREFERRED" means the Company's Series A
Convertible Preferred Stock, $0.0001 par value per share.
1.11 "SERIES B CONVERSION SHARES" means the shares of Common
Stock into which each share of Series B Preferred has been converted or is
convertible.
1.12 "SERIES B PREFERRED" means the Company's Series B
Convertible Preferred Stock, $0.0001 par value per share.
1.13 "SERIES C CONVERSION SHARES" means the shares of Common
Stock into which each share of Series C Preferred has been converted or is
convertible.
1.14 "SERIES C PREFERRED" means the Company's Series C
Convertible Preferred Stock, $0.0001 par value per share.
1.15 "SERIES C PREFERRED STOCK PURCHASE AGREEMENT" means the
Series C Preferred Stock Purchase Agreement by and among the Company and the
parties set forth therein.
1.16 "STOCKHOLDERS" means the Investors and any persons or
entities to whom the rights granted under this Agreement are transferred by the
Investors, their successors or assigns pursuant to Section 15 hereof.
Section 2. Sale or Transfer of Shares of Preferred Stock; Legend.
2.1 The shares of Preferred Stock and the Registrable Shares
and shares issued in respect of the shares of Preferred Stock or the Registrable
Shares shall not be sold or transferred unless either (i) they first shall have
been registered under the Securities Act, or (ii) the Company first shall have
been furnished with an opinion of legal counsel, reasonably satisfactory to the
Company, to the effect that such sale or transfer is exempt from the
registration requirements of the Securities Act.
2.2 Notwithstanding anything to the contrary contained in the
foregoing Section 2.1, no registration or opinion of counsel shall be required
for either (A) a transfer by an Investor (i) to a partner of such Investor or a
retired partner of such Investor who retires after the date hereof, (ii) to the
estate of any such partner or retired partner, (iii) to a member of a limited
liability company, (iv) to an affiliate of such Investor or (v) to a family
member or trust for the benefit of an individual Investor, if the transferee
agrees in writing to be subject to the terms of this Agreement to the same
extent as if he were an original Investor hereunder, provided that such transfer
is pursuant to an exemption under state and federal securities laws, or (B) a
transfer made in accordance with Rule 144 under the Securities Act.
2.3 Each certificate representing shares of Preferred Stock or
the Registrable Shares and shares issued in respect of the shares of Preferred
Stock and the Registrable Shares shall bear legends substantially in the
following form:
3
4
The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such shares are registered under
such Act or an opinion of counsel satisfactory to the Company
is obtained to the effect that such registration is not
required.
The shares of stock represented by this certificate are
subject to (i) certain voting agreements as set forth in an
Amended and Restated Stockholders' Voting Agreement, as
amended from time to time, by and among the registered owner
of this certificate, the Company and certain other
stockholders of the Company, (ii) the terms of a Second
Amended and Restated Registration Rights Agreement between the
Company and the registered owner of this certificate (or the
registered owner's predecessor in interest) and (iii)
restrictions on transfer and an option to purchase set forth
in an Amended and Restated Right of First Refusal and Co-Sale
Agreement between the Company and the registered owner of this
certificate (or the registered owner's predecessor in
interest). Copies of such agreements are available for
inspection during normal business hours at the principal
executive office of the Company.
2.4 The Company agrees, upon the request of an Investor, to
make available to such Investor and to any prospective transferee of any shares
of Preferred Stock or Registrable Shares of such Investor the information
concerning the Company described in Rule 144A(d)(4) under the Securities Act.
Section 3. Required Registrations.
3.1 At any time after the earliest of (i) six months after the
Company shall become a reporting company under Section 12 of the Exchange Act,
(ii) six months after the closing of the Company's initial public offering of
Common Stock or (iii) October 30, 2002, the Investors or any transferee of the
Investors holding in the aggregate at least 40% of the Registrable Shares
collectively held by the Investors and any transferees of the Investors may
request, in writing, that the Company effect a registration on Form S-1 (or any
successor form) of Registrable Shares owned by such Stockholder or Stockholders
covering at least 20% of the Common Stock issuable upon conversion of the
aggregate number of shares of Preferred Stock issued by the Company or having an
aggregate offering price of at least $5,000,000 (based on the then current
market price or fair value); provided, however, that the Company shall not be
required to effect any registration (other than on Form S-2 or Form S-3 or any
successor form relating to secondary offerings) (i) within 6 months after the
effective date of the initial Registration Statement or any other Registration
Statement of the Company in which the holder of Registrable Shares was entitled
to participate or (ii) if the Company delivers notice to the holders initiating
the registration within thirty (30) days of the Company's receipt of such
registration request of the Company's intent to file a registration statement
for the Company's
4
5
Qualified Public Offering within ninety (90) days. If the holders initiating the
registration intend to distribute the Registrable Shares by means of an
underwriting, they shall so advise the Company in their request. In the event
such registration is underwritten, the right of other Stockholders to
participate shall be conditioned on such Stockholders' participation in such
underwriting. Upon receipt of any such request, the Company shall promptly give
written notice of such proposed registration to all Stockholders. Such
Stockholders shall have the right, by giving written notice to the Company
within 30 days after the Company provides its notice, to elect to have included
in such registration such of their Registrable Shares as such Stockholders may
request in such notice of election, subject to the approval of the underwriter
managing the offering. Thereupon, the Company shall, as expeditiously as
possible, use its best efforts to effect the registration, on Form S-1 (or any
successor form), of all Registrable Shares that the Company has been requested
so to register.
3.2 At any time after the Company becomes eligible to file a
Registration Statement on Form S-3 (or any successor forms relating to secondary
offerings), any holder of Registrable Shares will have the right, upon written
notice to the Company, to require the Company to effect an unlimited number of
Registration Statements on Form S-3 (or such successor forms), of Registrable
Shares having an aggregate market price in each registration on Form S-3 in
excess of $500,000 (based on the current public market price). Upon receipt of
any such notice, the Company shall promptly give written notice of such proposed
registration to all Stockholders. Such Stockholders shall have the right, by
giving written notice to the Company within 30 days after the Company provides
its notice, to elect to have included in such registration such of their
Registrable Shares as such Stockholders may request in such notice of election.
Thereupon, the Company shall, as expeditiously as possible, use its best efforts
to effect the registration on Form S-3 (or such successor forms) of all
Registrable Shares that the Company has been requested to register.
3.3 The Company shall be required to effect not more than two
(2) registrations pursuant to Section 3.1 above and two (2) registrations per
year pursuant to Section 3.2 above; provided, however, that the Company shall
not be required to effect any registration (other than on Form S-3 or any
successor forms relating to secondary offerings) within six (6) months after the
effective date of the initial Registration Statement or any other Registration
Statement of the Company in which the holder of Registrable Shares was entitled
to participate, or if all of the shares proposed to be sold may be sold without
a Registration Statement pursuant to Rule 144.
3.4 If at the time of any request to register Registrable
Shares pursuant to this Section 3, the Company is engaged or has fixed plans to
engage within 30 days of the time of the request in a registered public offering
as to which the Stockholders may include Registrable Shares pursuant to Section
4 or is engaged in any other activity that, in the good faith determination of
the Company's Board of Directors, would be adversely affected by the requested
registration to the material detriment of the Company, then the Company may at
its option direct that such request be delayed for a period not in excess of 90
days from the effective date of such offering or the date of commencement of
such other material activity, as the case may be, such right to delay a request
to be exercised by the Company not more than once in any one (1) year period.
5
6
Section 4. Incidental Registration.
4.1 Subject to Section 4.2, below, whenever the Company
proposes to file a Registration Statement (other than pursuant to Section 3) at
any time and from time to time, it will, at least twenty (20) days prior to such
filing, give written notice to all Stockholders of its intention to do so and,
upon the written request of a Stockholder or Stockholders given within 20 days
after the Company provides such notice (which request shall state the intended
method of disposition of such Registrable Shares), the Company shall use its
best efforts to cause all Registrable Shares that the Company has been requested
by such Stockholder or Stockholders to register to be registered under the
Securities Act to the extent necessary to permit their sale or other disposition
in accordance with the intended methods of distribution specified in the request
of such Stockholder or Stockholders; provided that the Company shall have the
right to postpone or withdraw any registration effected pursuant to this Section
4 without obligation to any Stockholder.
4.2 In connection with any offering under this Section 4
involving an underwriting, the Company shall not be required to include any
Registrable Shares in such underwriting unless the holders thereof accept the
terms of the underwriting as agreed upon between the Company and the
underwriters selected by it, and then only in such quantity as will not, in the
opinion of the underwriters, jeopardize the success of the offering by the
Company. If, in the opinion of the managing underwriter, the registration of
all, or part of, the Registrable Shares that the Investors have requested to be
included would materially and adversely affect such public offering, then the
Company shall be required to include in the underwriting only that number of
Registrable Shares held by the Investors, if any, that the managing underwriter
believes may be sold without causing such adverse effect. If the managing
underwriter determines that marketing factors require such a limitation of the
number of shares to be included in the registration, the number of shares that
may be included in such registration shall be allocated as follows: first, to
the Company; second, to the Investors pro rata based on the total number of
Registrable Shares held by the Investors; third, to the Founders; and fourth, to
any other shareholder of the Company on a pro rata basis. No such reduction
shall reduce the amount of Registrable Shares included in the offering below 35%
of the total number of shares of Common Stock (giving effect to the conversion
into Common Stock of all securities convertible thereinto) included in the
offering unless the offering is the Company's first underwritten public
offering, in which case the amount of Registrable Shares included in the
offering may be reduced to zero. In no event shall (i) any Founder include any
of his Registrable Shares in the Offering or (ii) any other persons or entities
other than the Company, the Stockholders or persons or entities holding
registration rights pursuant to Section 11 hereof include Registrable Shares in
the Offering that would reduce the number of shares which may be included by the
Investors without the written consent of Investors holding not less than 66 2/3%
of the Registrable Shares proposed to be sold in the Offering. If any holder
would thus be entitled to include more shares than such holder requested to be
registered, the excess shall be allocated among other requesting holders pro
rata based upon their total ownership of Registrable Shares.
Section 5. Registration Procedures. If and whenever the Company is
required by the provisions of this Agreement to use its best efforts to effect
the registration of any of the Registrable Shares under the Securities Act, the
Company shall:
6
7
5.1 file with the Commission a Registration Statement with
respect to such Registrable Shares and use its best efforts to cause that
Registration Statement to become and remain effective until the completion of
the distribution;
5.2 as expeditiously as possible prepare and file with the
Commission any amendments and supplements to the Registration Statement and the
prospectus included in the Registration Statement as may be necessary to keep
the Registration Statement effective, in the case of a firm commitment
underwritten public offering, until each underwriter has completed the
distribution of all securities purchased by it and, in the case of any other
offering, until the earlier of the sale of all Registrable Shares covered
thereby or 180 days after the effective date thereof;
5.3 as expeditiously as possible furnish to each selling
Stockholder such reasonable number of copies of the prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as the selling Stockholder may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Shares owned by the selling Stockholder; and
5.4 as expeditiously as possible use its best efforts to
register or qualify the Registrable Shares covered by the Registration Statement
under the securities or Blue Sky laws of such states as the selling Stockholders
shall reasonably request, and do any and all other acts and things that may be
reasonably necessary to enable the selling Stockholders to consummate the public
sale or other disposition in such states of the Registrable Shares owned by the
selling Stockholder; provided, however, that the Company shall not be required
in connection with this Section 5.4 to qualify as a foreign corporation in any
jurisdiction.
If the Company has delivered preliminary or final prospectuses
to the selling Stockholders and after having done so the prospectus is amended
to comply with the requirements of the Securities Act, the Company shall
promptly notify the selling Stockholders and, if requested, the selling
Stockholders shall immediately cease making offers of Registrable Shares and
return all prospectuses to the Company. The Company shall promptly provide the
selling Stockholders with revised prospectuses and, following receipt of the
revised prospectuses, the selling Stockholders shall be free to resume making
offers of the Registrable Shares.
Section 6. Allocation of Expenses. The Company will pay all
Registration Expenses (as defined below) of all registrations under Sections 3.1
and 4 of this Agreement and the first three (3) registrations under Section 3.2
of this Agreement; provided, however, that if a registration under Section 3 is
withdrawn at the request of the Stockholders requesting such registration (other
than as a result of information concerning the business or financial condition
of the Company that is made known to the Stockholders after the date on which
such registration was requested) and if the requesting Stockholders elect not to
have such registration counted as a registration requested under Section 3, the
requesting Stockholders shall pay the Registration Expenses of such registration
pro rata in accordance with the number of their Registrable Shares included in
such registration. The selling Stockholders will pay or reimburse the Company
for all Registration Expenses of all registrations under Section 3.2 of this
Agreement after the first three (3) such registrations have been filed. For
purposes of this Section, the term "REGISTRATION EXPENSES" shall mean all
expenses incurred by the Company in complying with this Agreement,
7
8
including, without limitation, all registration and filing fees, exchange
listing fees, printing expenses, fees and disbursements of accountants and
counsel for the Company and the fees and expenses of one (1) counsel selected by
the selling Stockholders to represent the selling Stockholders (in an amount not
to exceed $25,000 per registration), state Blue Sky fees and expenses, and the
expense of any special audits incident to or required by any such registration,
but excluding underwriting discounts, selling commissions and the fees and
expenses of selling Stockholders' own counsel (other than the counsel selected
to represent all selling Stockholders).
Section 7. Indemnification and Contribution. In the event of any
registration of any of the Registrable Shares under the Securities Act pursuant
to this Agreement, the Company will indemnify and hold harmless the seller of
such Registrable Shares (including, for this purpose only, its directors and
officers), each underwriter of such Registrable Shares, and each other person,
if any, who controls such seller or underwriter within the meaning of the
Securities Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which such seller, underwriter or controlling
person may become subject under the Securities Act, the Exchange Act, state
securities or Blue Sky laws or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement under which such Registrable Shares were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to such Registration Statement, or arise out of or are based upon the
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Company will reimburse such seller, underwriter and each such controlling person
for any legal or any other expenses reasonably incurred by such seller,
underwriter or controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or omission made in such Registration Statement, preliminary prospectus or
prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by or on
behalf of such seller, underwriter or controlling person specifically for use in
the preparation thereof.
In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, each seller of
Registrable Shares, severally and not jointly, will indemnify and hold harmless
the Company, each of its directors and officers and each underwriter (if any)
and each person, if any, who controls the Company or any such underwriter within
the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which the Company, such
directors and officers, underwriter or controlling person may become subject
under the Securities Act, Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the
8
9
statements therein not misleading, if the statement or omission was made in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of such seller, specifically for use in connection with
the preparation of such Registration Statement, prospectus, amendment or
supplement; provided, however, that the obligations of such seller hereunder
shall be limited to an amount equal to the proceeds to such seller of
Registrable Shares sold as contemplated herein.
Each party entitled to indemnification under this Section 7
(the "INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement. The Indemnified Party may participate in such
defense at such party's expense; provided, however, that the Indemnifying Party
shall pay such expense if representation of such Indemnified Party by the
counsel retained by the Indemnifying Party would be inappropriate due to actual
or potential differing interests between the Indemnified Party and any other
party represented by such counsel in such proceeding. No Indemnifying Party in
the defense of any such claim or litigation shall, except with the consent of
each Indemnified Party, consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect of such claim or litigation, and no Indemnified Party shall
consent to entry of any judgment or settle such claim or litigation without the
prior written consent of the Indemnifying Party.
In order to provide for just and equitable contribution to
joint liability in any case in which any seller of Registrable Shares exercising
rights under this Agreement, or any controlling person of any such seller, makes
a claim for indemnification pursuant to this Section 7 but it is judicially
determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 7 provides for indemnification in
such case, then, in such case, the Company and such seller will contribute to
the aggregate losses, claims, damages, liabilities or expenses to which they may
be subject (after contribution from others) in such proportion as is appropriate
to reflect the relative fault of the Company and such seller in connection with
the actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of the Company and such seller shall be determined by reference to, among
other things, whether any action in question, including any untrue statement of
a material fact or omission to state a material fact, has been made by, or
relates to information supplied by, the Company or such seller, and each of such
party's relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The parties hereto agree that it would not be
just and equitable if contribution pursuant hereto were determined by pro rata
allocation or by any other method of allocation which does not take into account
all the foregoing equitable considerations. Notwithstanding the foregoing, no
such seller will be required to contribute any amount in excess of the proceeds
to it of all Registrable Shares
9
10
sold by it pursuant to such Registration Statement, and no person or entity
guilty of fraudulent misrepresentation, within the meaning of Section 11(f) of
the Securities Act, shall be entitled to contribution from any person or entity
who is not guilty of such fraudulent misrepresentation.
Section 8. Underwriting Agreement with Respect to Underwritten
Offering. In the event that Registrable Shares are sold pursuant to a
Registration Statement in an underwritten offering pursuant to Section 3, the
Company agrees to enter into an underwriting agreement containing customary
representations and warranties with respect to the business and operations of an
issuer of the securities being registered and customary covenants and agreements
to be performed by such issuer, including without limitation customary
provisions with respect to indemnification by the Company of the underwriters of
such offering.
Section 9. Information by Holder. Each holder of Registrable Shares
included in any registration shall furnish to the Company such information
regarding such holder and the distribution proposed by such holder as the
Company may request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement.
Section 10. "Market Stand-Off" Agreement. Each Stockholder, if
requested by the Company and an underwriter of Common Stock or other securities
of the Company, shall agree not to sell or otherwise transfer or dispose of any
Registrable Shares or other securities of the Company held by such Stockholder
for a specified period of time (not to exceed 180 days) following the effective
date of a Registration Statement; provided, that:
(a) such agreement shall only apply to the first such
Registration Statement covering Common Stock of the Company to be sold on its
behalf to the public in an underwritten offering; and
(b) all holders of at least 1% of the Company's voting
securities and all officers and directors of the Company enter into similar
agreements.
Notwithstanding anything herein to the contrary, this Section 10 shall not be
deemed to restrict any Stockholder or its affiliates from engaging in any
brokerage, investment advisory, financial advisory, anti-raid advisory, merger
advisory, financing, asset management, trading, market making, arbitrage and
other similar activities conducted in the ordinary course of its or its
affiliates' business.
Such agreement shall be in writing in a form satisfactory to the Company and
such underwriter. The Company may impose stop-transfer instructions with respect
to the Registrable Shares or other securities subject to the foregoing
restriction until the end of the stand-off period.
Section 11. Limitations on Subsequent Registration Rights. The Company
shall not, without the prior written consent of Stockholders holding at least
70% of the Registrable Shares, enter into any agreement (other than this
Agreement) with any holder or prospective holder of any securities of the
Company that would allow such holder or prospective holder either (a) to include
securities of the Company in any registration filed under Section 3 or 4, or (b)
to make a
10
11
demand registration that could result in such registration statement being
declared effective prior to the Company's initial public offering.
Section 12. Rule 144 Requirements. After the earliest of (i) the
closing of the sale of securities of the Company pursuant to a Registration
Statement, (ii) the registration by the Company of a class of securities under
Section 12 of the Exchange Act, or (iii) the issuance by the Company of an
offering circular pursuant to Regulation A under the Securities Act, the Company
agrees to:
(a) comply with the requirements of Rule 144(c) under the
Securities Act with respect to current public information about the Company;
(b) file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) furnish to any holder of Registrable Shares upon request
(i) a written statement by the Company as to its compliance with the
requirements of said Rule 144(c), and the reporting requirements of the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements), (ii) a copy of the most recent annual or quarterly
report of the Company, and (iii) such other reports and documents of the Company
as such holder may reasonably request to avail itself of any similar rule or
regulation of the Commission allowing it to sell any such securities without
registration.
Section 13. Selection of Underwriter. In the case of any registration
effected pursuant to this Agreement, the Company shall have the right to
designate the managing underwriter in any underwritten offering, subject to the
approval of the holders of a majority of the Registrable Shares requested to be
included in such offering, which approval shall not be unreasonably withheld.
Section 14. Mergers, Etc. The Company shall not, directly or
indirectly, enter into any merger, consolidation, or reorganization in which the
Company shall not be the surviving corporation unless the proposed surviving
corporation shall, prior to such merger, consolidation, or reorganization, agree
in writing to assume the obligations of the Company under this Agreement, and
for that purpose references hereunder to "Registrable Shares" shall be deemed to
be references to the securities that the Stockholder would be entitled to
receive in exchange for Registrable Shares under any such merger, consolidation,
or reorganization; provided, however, that the provisions of this Agreement
shall not apply in the event of any merger, consolidation, or reorganization in
which the Company is not the surviving corporation if all Stockholders are
entitled to receive in exchange for their Registrable Shares consideration
consisting solely of (i) cash, (ii) securities of the acquiring corporation that
may be immediately sold to the public without registration under the Securities
Act, or (iii) securities of the acquiring corporation that the acquiring
corporation has agreed to register within 90 days of completion of the
transaction for resale to the public pursuant to the Securities Act.
11
12
Section 15. Successors and Assigns. Except as provided in Section 16,
the provisions of this Agreement shall be binding upon, and inure to the benefit
of, the respective successors, assigns, heirs, executors and administrators of
the parties hereto.
Section 16. Transfers of Certain Rights.
16.1 Amount. The rights granted to each Investor under this
Agreement may be transferred only (i) to a partner of such Investor or a retired
partner of such Investor who retires after the date hereof, (ii) to the estate
of any such partner or retired partner, (iii) to a member of a limited liability
company, (iv) to an affiliate of such Investor, (v) to a family member or trust
for the benefit of an individual Investor, or (vi) or to a transferee who
acquires at least 1,000,000 shares of Preferred Stock (and Conversion Shares)
held by such transferring Investor.
16.2 Transferees. Any transferee to whom rights under this
Agreement are transferred shall, as a condition to such transfer, deliver to the
Company a written instrument by which such transferee agrees to be bound by the
obligations imposed upon the Investors under this Agreement to the same extent
as if such transferee were an Investor hereunder.
16.3 Subsequent Transferees. A transferee to whom rights are
transferred pursuant to this Section 16 may not again transfer such rights to
any other person or entity, other than as provided in Sections 16.1 or 16.2
above.
16.4 Partners and Members. Notwithstanding anything to the
contrary herein, an Investor may transfer rights granted to it under this
Agreement to any partner, in the case of a partnership, or to any member, in the
case of a limited liability company, of such Investor to whom shares of
Preferred Stock are transferred pursuant to Section 2 and who delivers to the
Company a written instrument in accordance with Section 16.2 above and
containing the representation that the transfer is exempt from registration
under the Securities Act. In the event of such transfer, such partner or member
shall be deemed to be an Investor for purposes of this Section 16 and may again
transfer such rights to any other person or entity that acquires shares of
Preferred Stock from such partner or member, in accordance with, and subject to,
the provisions of Section 16.1, 16.2 and 16.3 above; provided, however, that if
an Investor transfers rights under this Agreement to its partners or members, as
applicable, at any time prior to the completion of the Qualified Public
Offering, the general partner or manager, as applicable, of the Investor shall
be deemed the sole recipient of notices for all of such Investor's partners or
members, as applicable, for the purposes of Section 17.6 of this Agreement.
Section 17. Miscellaneous.
17.1. No Inconsistent Agreements. The Company will not
hereafter enter into any agreement with respect to its securities that is
inconsistent with or violates the rights granted to the holders of Registrable
Shares in this Agreement.
17.2. Adjustments Affecting Registrable Shares. The Company
will not take any action, or permit any change to occur, with respect to its
securities that would adversely
12
13
affect the ability of the holders of Registrable Shares to include such
Registrable Shares in a registration undertaken pursuant to this Agreement or
that would adversely affect the marketability of such Registrable Shares in any
such registration (including, without limitation, effecting a stock split or a
combination of shares).
17.3. Remedies. Any person having rights under any provision
of this Agreement will be entitled to enforce such rights specifically (without
posting any bond or other security), to recover damages caused by reason of any
breach of any provision of this Agreement and to exercise all other rights
granted by law.
17.4. Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may be amended and the Company may take
action herein prohibited, or omit to perform any act herein required to be
performed by it, if, but only if, the Company has obtained the written consent
of holders of at least 70% of the Registrable Shares then in existence.
17.5. Governing Law; Jury Waiver. This Agreement shall be
governed by and construed under the laws of the State of Delaware. The parties
hereto waive all right to trial by jury in any action or proceeding to enforce
or defend any rights under this Agreement.
17.6. Notices. All notices and other communications required
or permitted hereunder shall be in writing and shall be deemed to have been
given when delivered personally or faxed to the recipient, one (1) business day
after they have been sent to the recipient by reputable overnight courier
service (charges prepaid) or three (3) business days after mailed by first class
mail, postage prepaid. Such notices, demands, and other communications shall be
addressed:
If to the Company, at:
Secure Commerce Services, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President,
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius, LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
or at such other address or addresses as may have been furnished in writing by
the Company to the Investors.
If to the Investors, at such addresses set forth on Exhibit A
hereto, with a copy to:
13
14
▇▇▇▇▇▇ Godward LLP
Five Palo Alto Square
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to any other transferee to whom shares were transferred
pursuant to Section 2, at such address or addresses as may have been furnished
to the Company in writing.
17.7. Severability. In case any provision of this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions of this Agreement or any provision of
the other Agreements shall not in any way be affected or impaired thereby.
17.8. Titles and Subtitles. The titles of the sections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
17.9. No Registration of Preferred Stock. The registration
rights contained herein apply only to the Company's Common Stock, and the
Company shall never be obligated to register any of the Preferred Stock.
17.10 Counterparts; Facsimile Signatures. This Agreement may
be executed in any number of counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same document.
This Agreement may be executed by facsimile signatures.
14
15
IN WITNESS WHEREOF, the parties have executed this Second
Amended and Restated Registration Rights Agreement as of the date first written
above.
COMPANY:
SECURE COMMERCE SERVICES, INC.
By: /s/ Flint ▇. ▇▇▇▇
--------------------------------
Name: Flint ▇. ▇▇▇▇
Title:
FOUNDERS:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
/s/ Flint ▇. ▇▇▇▇
------------------------------------
Flint ▇. ▇▇▇▇
INVESTORS:
ARALIA TECHNOLOGY PARTNERS, LP
By Aralia Technology Group, Inc.
Its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
President
AT&T VENTURE FUND II, LP
By: Venture Management, LLC
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Manager
16
SPECIAL PARTNERS FUND, LP
By: Venture Management III, LLC
Its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Manager
SPECIAL PARTNERS FUND
INTERNATIONAL, LP
By: Venture Management III, LLC
Its Investment General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Manager
SPECTRUM EQUITY INVESTORS III, L.P.
By Spectrum Equity Associates III, L.P.
Its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
General Partner
SPECTRUM III INVESTMENT MANAGERS'
FUND, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
General Partner
17
NASSAU HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
President
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇
------------------------------
▇▇▇▇ ▇▇▇▇
18
SOFTBANK TECHNOLOGY VENTURES V, L.P.
By: STV V LLC, its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
SOFTBANK TECHNOLOGY ADVISORS FUND V, L.P.
By: STV V LLC, its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
SOFTBANK ENTREPRENEURS FUND V, L.P.
By: STV V LLC, its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
19
GE CAPITAL EQUITY INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
TWP PAYTRUST INVESTORS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
TAILWIND CAPITAL PARTNERS, L.P.
By ▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Partners LLC
Its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
AMERICAN EXPRESS TRAVEL RELATED SERVICES
COMPANY, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President AERS
THE ▇▇▇▇▇▇▇ SACHS GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, V.P.
Title:
20
EXHIBIT A
INVESTOR NAME AND ADDRESS
Aralia Technology Partners, LP
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
AT&T Venture Fund II, LP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Special Partners Fund, LP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Special Partners Fund International, ▇▇
▇▇▇▇▇▇ House, South Church Street
Georgetown
Grand Cayman, Cayman Islands
and
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(If to AT&T Venture Fund II, LP, Special
Partners Fund, LP or Special Partners
Fund International, LP, with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇
Commerce Executive Park III, Suite 610
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.)
Spectrum Equity Investors III, L.P.
Spectrum III Investment Managers' Fund, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
21
Nassau Holdings, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
The ▇▇▇▇ Group
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SOFTBANK Technology Ventures V, L.P.
SOFTBANK Technology Advisors Fund V, L.P.
SOFTBANK Entrepreneurs Fund V, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
GE Capital Equity Investments, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
TWP Paytrust Investors
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇ Drum
Tailwind Capital Partners, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇ Drum
American Express Travel Related Services
Company, Inc.
World Financial Center
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇