1
EXHIBIT 4.10
ANNEX B TO THE SUBSCRIPTION AGREEMENT
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement constitutes a part of a Subscription
Agreement (the "Subscription Agreement") relating to the sale by Online
Resources & Communications Corporation, a Delaware corporation (the "Company")
of shares (the "Shares") of the Company's Common Stock, (the "Common Stock")
$.0001 par value. The Shares are being sold in a private placement transaction
(the "Placement") which is exempt from the registration requirements for the
Securities Exchange Act of 1933, as amended (the "Securities Act"). In the
Placement, the Company is offering a minimum of 1,200,000 and a maximum of
2,800,000 Shares at a purchase price of $2.50 per share. Each purchaser of
Shares in the Placement (a "Purchaser") will execute a Subscription Agreement
substantially in the form of the Subscription Agreement of which this
Registration Rights Agreement forms a part, and each such Subscription Agreement
will provide the Purchaser with the registration rights with respect to the
Common Stock as set forth herein.
1. If the Company at any time proposes to register any of its
securities on a form which permits the inclusion of Common Stock, the Company
will, each such time and so long as the Purchaser owns Common Stock, give
written notice to the Purchaser of its intention to effect such registration and
allow the Purchaser, together with all other Purchasers who elect to do so, the
right to participate in such registration as to all or a portion of the Common
Stock as to which the Purchaser shall have requested such right in writing
within 10 days of receipt of the Company's notice. The Company may, without the
consent of the Purchaser, withdraw any registration statement filed under this
paragraph and abandon the proposed offering.
2. All expenses incurred in effecting the registration referred to in
Section 1 of this Agreement, including but not limited to, all registration and
filing fees relating to securities being sold by the Company, printing expenses,
fees and disbursements of counsel for the Company, underwriting expenses and
commissions (insofar as such commissions relate to the sale of securities by the
Company), expenses of any audits or other accounting fees and expenses incident
to such registration, expenses of complying with state securities or blue sky
laws, listing or similar fees, and costs and fees of any transfer agent shall be
borne by the Company in any such registration. The Purchaser who exercises his
registration rights shall bear his proportionate cost of SEC and NASD filing
fees and other registration fees related to the sale of Shares by such Purchaser
and the proportionate cost of counsel for Purchasers and the cost of any counsel
which such Purchaser may individually employ in connection with the
registration.
3. In the event that the Company receives requests from Purchasers to
participate in a registration in accordance with Section 1 and such registration
relates to an underwritten public offering, the right of the Purchaser and all
other Purchasers to participate in the offering is subject to limitation in
accordance with the terms of this Section 3. If the managing underwriter or
underwriters for the offering furnish a written opinion that the total amount of
Common Stock to be included in the offering would exceed the maximum amount of
Common Stock (as specified in such opinion) which can be marketed at a price
reasonably related to the then current market value of the Common Stock and
without materially and adversely affecting such offering, then the right of the
Purchaser and all other Purchasers to participate in such offering shall be
subordinate, in whole or in part, to the right of the Company to sell securities
in the offering. In the event that the opinion of the underwriters specifies
that some, but not all, Shares may reasonably be sold in the offering without
materially affecting the offering price or other terms of the offering, such
number of specified Shares as may be sold by the Purchasers shall be prorated,
as nearly as possible to the nearest 100 shares, among all Purchasers who
requested to participate in the registration based on the relative number of
Shares which each such Purchaser had originally requested be included in the
registration.
2
4. In the event of any registration of any Shares pursuant to this
Agreement, the Company shall indemnify and hold harmless the Purchaser and each
underwriter (as defined in the Securities Act), each other person who
participates in the offering of Common Stock and each other person, if any, who
controls (within the meaning of the Securities Act) the Purchaser, such
underwriter or participating person against any losses, claims, damages or
liabilities, joint or several, to which the Purchaser, such underwriter,
participating person or controlling person may become subject under the
Securities Act or any other statute or at common law, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any alleged untrue statement of any material fact contained,
on the effective date thereof, in any registration statement under which the
Common Stock were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any summary prospectus
issued in connection therewith, or any amendment or supplement thereto, or (ii)
any alleged omission to state in any such document a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and shall reimburse the Purchaser, each such underwriter, participating person
or controlling person for any legal or other expenses reasonably incurred by any
such person in connection with investigating or defending any such loss, claim,
damage, liability or action: provided, however, that the Company shall not be
liable to any such person in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any alleged untrue
statement or alleged omission made in such registration statement, preliminary
prospectus, prospectus or amendment or supplement thereto in reliance upon and
in conformity with written information furnished to the Company by such person
specifically for use in such document.
In the event of any registration of any Common Stock pursuant to this
Agreement, the Purchaser agrees to provide indemnities to and hold harmless each
underwriter (as defined in the Securities Act) and each other person, if any,
who controls (within the meaning of the Securities Act) such underwriter in a
nature similar to that set forth in the foregoing paragraph, provided, that such
indemnity shall only relate to any losses, claims, damages or liabilities which
arise out of or are based upon any untrue statement or alleged omission made in
the registration statement, preliminary prospectus, prospectus or amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by such Purchaser specifically for use therein, and
provided, further, that the aggregate amount payable by the Purchaser pursuant
to the indemnity provided for under this paragraph shall not exceed the net
proceeds received by such Purchaser from the sale of Shares.
The terms of the foregoing indemnities may be set forth more fully in
an underwriting agreement between the Company, the Purchaser and the
underwriters for the offering relating to an underwritten public offering.
6. In addition to the foregoing indemnity provisions, the Company and
the Purchaser agree to enter into an underwriting agreement with the
underwriters of any underwritten public offering containing such terms as are
reasonably customary for such agreements.
7. This Agreement constitutes a binding agreement between the Company
and the Purchaser as for the date of execution of the Subscription Agreement of
which this Agreement forms a part. The registration rights provided for in this
Agreement will become effective on the date of closing of the sale of Shares by
the Company to the Purchaser pursuant to this Subscription Agreement. The rights
herein do not constitute part of the right of all holders of the Common Stock
but constitute rights given by the Company to the Purchaser, and the Purchasers
heirs, successors or permitted assigns. The registration may not be transferred
or assigned by the Purchaser to another party without the prior written consent
of the Company.
2