EXHIBIT 4.2
PROBUSINESS SERVICES, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is made as of
April 27, 1999, between ProBusiness Services, Inc., a Delaware corporation
("PARENT" or "PROBUSINESS"), and the Company Stockholders listed on EXHIBIT A
hereto, pursuant to the Agreement and Plan of Reorganization by and among
Parent, Clemco, Inc., a Georgia corporation (the "COMPANY"), Runway Acquisition
Corp., a Delaware corporation and a wholly owned subsidiary of Parent ("SUB"),
and, with respect to Article VII thereto, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Skip ▇▇▇▇▇, as
Stockholder Representatives, and, with respect to Section 7.7 only, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ and U.S. Bank Trust, N.A., as Escrow Agent,
dated as of April 27, 1999 (the "REORGANIZATION AGREEMENT").
1. DEFINITIONS. As used in this Agreement:
(a) "EFFECTIVE TIME" means the Effective Time as defined in
Article I of the Reorganization Agreement.
(b) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
SEC thereunder, all as shall be in effect at the time.
(c) "FORM S-3" means Form S-3 under the Securities Act as in
effect on the date hereof or any registration form under the Securities Act
subsequently adopted by the SEC which similarly permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the SEC, or if such form cannot be used by Parent, then such
other form under the Securities Act pursuant to which Parent can register the
Registrable Securities.
(d) "MATERIAL EVENT" means the happening of any event during the
period that the registration statement described in Section 2 hereof is required
to be effective as a result of which, in the reasonable judgment of Parent, such
registration statement or the related prospectus contains or may contain any
untrue statement of a material fact or omits or may omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading.
(e) "REGISTRABLE SECURITIES" means the Parent Common Stock issued
to the Company Stockholders (including the Escrow Shares) pursuant to the
Reorganization Agreement, any security received as a dividend with respect to
such Parent Common Stock and any security into which such Parent Common Stock
may hereafter be changed or for which such Parent Common Stock may be exchanged
(by way of reorganization, recapitalization, merger, consolidation or
otherwise).
(f) "SEC" means the Securities and Exchange Commission and any
other similar or successor agency of the federal government at the time
administering the Securities Act or the Securities Exchange Act.
(g) "SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC thereunder, all as shall be in effect
at the time.
Terms not otherwise defined herein have the meanings given to them
in the Reorganization Agreement.
2. REGISTRATION. Parent shall use commercially reasonable efforts to
cause the Registrable Securities issued to the Company Stockholders to be
registered under the Securities Act as soon as practicable after the Effective
Time so as to permit the resale thereof 180 days after the Effective Time and in
connection therewith shall prepare and file with the SEC no later than
September 30, 1999, and shall use commercially reasonable efforts to cause to
become effective, a Form S-3 covering the Registrable Securities on or before
October 27, 1999 (the "DEADLINE"); PROVIDED, HOWEVER, that the Company
Stockholders shall provide all such information and materials relating to the
Company Stockholders, as applicable, and take all such action as may be
reasonably required in order to permit Parent to comply with all the applicable
requirements of the SEC and to obtain any desired acceleration of the effective
date of such Form S-3. Notwithstanding anything herein to the contrary, no
Company Stockholder shall be required to make any representation or warranty to,
or make any agreements with, Parent other than the representations, warranties
or agreements regarding such Company Stockholder or such Company Stockholder's
intended method of distribution. If any such Form S-3 refers to any Company
Stockholder by name or otherwise as the holder of any securities of Parent, then
such Company Stockholder shall have the right to require (i) the insertion
therein of language, in form and substance satisfactory to such Company
Stockholder, to the effect that the holding by such Company Stockholder of such
securities is not to be construed as a recommendation by such Company
Stockholder of the investment quality of Parent's securities covered thereby and
that such holding does not imply that such Company Stockholder will assist in
meeting any future financial requirements of Parent, or (ii) in the event that
such reference to such Company Stockholder by name or otherwise is not required
by the Securities Act or any state blue sky or securities law then in force, the
deletion of the reference to such Company Stockholder. Notwithstanding the
foregoing, Parent shall not be required to cause the Registrable Securities of
any Company Stockholder to be registered if Parent's legal counsel delivers a
legal opinion to such Company Stockholder seeking to sell all of its Registrable
Securities that such sale may then be effected in a single three-month period
without registration under the Securities Act pursuant to Rule 144 under the
Securities Act.
3. POSTPONEMENT OF REGISTRATION.
(a) Notwithstanding Section 2 above, Parent shall be entitled to
postpone the declaration of effectiveness of any Form S-3 prepared and filed
pursuant to Section 2 for a reasonable period of time, but not in excess of 30
calendar days after the Deadline, if the Board of Directors of Parent, acting in
good faith, determines that there exists material non-public information about
ProBusiness.
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(b) The Company Stockholders agree that, upon receipt of any
written notice from Parent of the happening of a Material Event (a "SUSPENSION
NOTICE"), the Company Stockholders will forthwith suspend disposition of the
Registrable Securities pursuant to any Form S-3 described in Section 2 until the
Company Stockholders' receipt of copies of supplemented or amended prospectuses
prepared by Parent (which Parent will use its commercially reasonable efforts to
prepare and file promptly), and, if so directed in writing by Parent, the
Company Stockholders will deliver to Parent all copies in their possession,
other than permanent file copies then in the Company Stockholders' possession,
of the prospectus covering such Registrable Securities current at the time of
receipt of such notice. In no event shall Parent delay causing to be effective
a supplement or post-effective amendment to any Form S-3 pursuant to Section 2
or the related prospectus, for more than 30 consecutive days or 60 days during
any 365 consecutive calendar day period.
4. OBLIGATIONS OF PARENT. Except as set forth in Sections 2 and 3,
Parent shall (i) use commercially reasonable efforts to cause the Form S-3 to
become effective as provided in Section 2 and to prepare and file with the SEC
such amendments and supplements to the registration statement and the prospectus
used in connection therewith as may be necessary to keep, and shall use
commercially reasonable efforts to keep, the Form S-3 continuously effective in
compliance with the provisions of the Securities Act, the Exchange Act and the
rules and regulations of the SEC promulgated thereunder applicable to it with
respect to the disposition of Registerable Securities covered by the Form S-3
until the earlier to occur of (A) the sale of all of the Registrable Securities
so registered, (B) the date when all Registrable Securities can be sold within a
given three-month period without compliance with the registration requirements
of the Securities Act pursuant to Rule 144 or other applicable exemption, and
(C) the second anniversary of the Effective Time; (ii) furnish to the Company
Stockholders such number of copies of any prospectus (including any preliminary
prospectus and any amended or supplemented prospectus), as the Company
Stockholders may reasonably request in order to effect the offering and sale of
the shares of the Registrable Securities to be offered and sold, but only while
Parent shall be required under the provisions hereof to cause such Form S-3 to
remain current; (iii) use its commercially reasonable efforts to register or
qualify (and to keep each such registration and qualification effective,
including through new filings, renewals or amendments during the period such
registration statement is required to be kept effective) the shares of the
Registrable Securities covered by such Form S-3 under the securities or blue sky
laws of such jurisdictions as any Company Stockholder shall reasonably request
(provided that Parent shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such jurisdiction where it has not been qualified),
and do any and all other acts or things which may be reasonably necessary or
advisable to enable the Company Stockholders to consummate the public sale or
other disposition of the Registrable Securities in such jurisdictions;
(iv) cause all such Registrable Securities to be listed on the Nasdaq Stock
Market or such other securities exchange on which similar securities issued by
Parent are then listed; (v) notify the Company Stockholders upon the happening
of any event as a result of which the prospectus included in such Form S-3, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing; (vi) so long as the Form S-3 remains effective, subject to Section 3
above, promptly prepare, file with the SEC and furnish to the Company
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Stockholders a reasonable number of copies of a supplement to or an amendment of
the Form S-3 or such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of the Registrable Securities, the Form S-3 or such
prospectus shall not include an 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 in the light of the circumstances then
existing; (vii) notify the Company Stockholders in writing within 2 days after
it shall receive notice thereof, of the date and time any Form S-3 and each
post-effective amendment thereto has become effective or a supplement to any
prospectus forming a part of such Form S-3 has been filed; (viii) notify the
Company Stockholders in writing promptly of any request by the SEC for the
amending or supplementing of such Form S-3 or prospectus or for additional
information; (ix) notify the Company Stockholders in writing promptly after it
shall receive notice or obtain knowledge thereof, of the issuance, threat or
contemplation of any stop order by the SEC preventing or suspending the
effectiveness of any Form S-3 or the initiation or threatening of any proceeding
for that purpose and promptly use commercially reasonable efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such stop order should
be issued; (x) at least 3 days before the filing of the Form S-3 or prospectus
or amendments or supplements thereto, furnish to counsel for the Company
Stockholders copies of all such documents proposed to be filed; (xi) cooperate
with the Company Stockholders to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold, which
certificates shall not bear any restrictive legends; and enable such Registrable
Securities to be in such denominations and registered in such names as the
Company Stockholders may reasonably request; and (xii) upon execution and
delivery of such confidentiality agreements as Parent shall reasonably request,
make available for inspection by any Company Stockholder and by any attorney,
accountant or other agent retained by any Company Stockholder pertinent
financial and other records, pertinent corporate documents and properties of
Parent and cause the Parent's officers, directors and employees to supply all
information reasonably requested by any such Company Stockholder, underwriter,
attorney, accountant or agent in connection with such Form S-3, all as necessary
to conduct a reasonable investigation within the meaning of Section 11 of the
Securities Act.
5. PIGGYBACK REGISTRATION RIGHTS.
(a) If at any time or from time to time during the two-year period
following the date hereof, Parent shall initiate a registration of any of its
equity securities in an underwritten public offering, Parent will:
(i) promptly (but in no event less than 10 days before the
anticipated effective date) give Company Stockholders then owning Registrable
Securities written notice thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and underwriting,
Registrable Securities in an amount of up to 30% of the securities to be sold in
such offering (subject to cutback as set forth in clause (b)) specified in a
written request or requests made within ten days after receipt of such written
notice from Parent by such Company Stockholder.
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(b) The right of any Company Stockholder to registration
pursuant to this Section 5 shall be conditioned upon such Company Stockholder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting to the extent provided herein. If any Company Stockholder
proposes to distribute its securities through such underwriting, such Company
Stockholder shall (together with Parent and/or any other stockholders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the managing underwriter selected
for such underwriting by Parent. Notwithstanding any other provision of this
Section 5, if the managing underwriter determines that marketing factors require
a limitation of the number of shares to be underwritten, the managing
underwriter may limit or exclude the Registrable Securities requested to be
included in such registration. In the event of a limitation of the number of
shares to be underwritten, Parent shall so advise the Company Stockholders and
the other stockholders distributing their securities through such underwriting
pursuant to piggyback registration rights similar to this Section 5, and the
number of shares of Registrable Securities and other securities that may be
included in the registration and underwriting shall be allocated among the
Company Stockholder and any other participating stockholders with piggyback
registration rights in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities held by such Company Stockholder and other
securities held by other stockholders with piggyback registration rights at the
time of filing the registration statement; provided, however, that before
including securities held by any holder of registration rights other than the
Company Stockholders, Parent will include in such registration Registrable
Securities in an amount equal to 15% of the securities to be sold in such
offering (or such lesser amount of Registrable Securities proposed to be sold by
the Company Stockholders in such offering). If any Company Stockholder or other
stockholders disapprove of the terms of any such underwriting, he or she may
elect to withdraw therefrom by written notice to Parent and the managing
underwriter.
(c) Parent shall have the right to terminate or withdraw any
registration initiated by it under this Section 5 prior to the effectiveness of
such registration, whether or not any Company Stockholder has elected to include
securities in such registration.
(d) No registration effected under this Section 5 shall relieve
Parent of its obligation to effect the registration required under Section 2
hereof.
6. EXPENSES. Parent shall pay the following expenses incurred in
connection with any registration of Registrable Securities pursuant to this
Agreement: all SEC, NASD and blue sky registration and filing fees, all fees
and expenses incurred in connection with the listing of the Registerable
Securities, printing expenses, transfer agents' and registrars' fees, fees and
disbursements of Parent's outside counsel and independent accountants, internal
expenses of Parent, fees and expenses of any special experts retained by Parent
in connection with such registration, and the reasonable fees and expenses of
one law firm (designated by the holders of the majority of Registrable
Securities and reasonably acceptable to the Company) acting as counsel for the
Company Stockholders in connection with the registration hereunder. The Company
Stockholders shall be responsible for all commissions and transfer taxes, as
well as any other expenses incurred by the Company Stockholders that Parent has
not agreed to pay pursuant to this Section 6.
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7. INDEMNIFICATION. In the event of any offering registered pursuant
to this Agreement:
(a) Parent will indemnify each Company Stockholder, each of its
partners, directors, officers and employees, each person who controls such a
person within the meaning of Section 15 of the Securities Act, and any
underwriter of Registrable Securities, and each person who controls such
underwriter within the meaning of Section 15 of the Securities Act, with respect
to any registration effected pursuant to this Agreement, against all expenses,
claims, losses, damages and liabilities (or actions in respect thereof),
including any of the foregoing incurred in settlement of any litigation,
commenced or threatened, arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any registration
statement, or any amendment or supplement thereto, or prospectus related
thereto, incident to any such registration, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they are made, not misleading, or any violation by Parent of any rule or
regulation promulgated under the Securities Act, or state securities laws, or
common law, applicable to Parent in connection with any such registration, and
will reimburse such Company Stockholder, each of its partners, directors,
officers and employees and each person who controls such a person within the
meaning of Section 15 of the Securities Act, for any legal and any other
expenses reasonably incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action, provided that
Parent will not be liable in any such case (i) to the extent that any such
claim, loss, damage, liability or expense arises out of or is based in any
untrue statement or omission or alleged untrue statement or omission, made in
reliance upon and in conformity with written information furnished to Parent by
an instrument duly executed by such Company Stockholder and stated to be
specifically for use therein or (ii) if a copy of the final prospectus relating
to any registration statement (as then amended or supplemented if Parent shall
have furnished any amendments or supplements thereto) (the "FINAL PROSPECTUS")
was not sent or given by or on behalf of such Company Stockholder to a purchaser
of the Company Stockholder's Registrable Securities, if required by law so to
have been delivered, at or prior to the written confirmation of the sale of the
Registrable Securities to such purchaser, and if the final prospectus (as so
amended or supplemented) would have cured the defect giving rise to such loss,
claim, damage or liability.
(b) Each Company Stockholder will severally indemnify Parent, each
of its directors and officers, each person who controls Parent within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) or a material fact contained in
any registration statement, or any amendment or supplement thereto, or
prospectus related thereto, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement or prospectus in reliance upon and in
conformity with written information furnished to Parent by an instrument duly
executed by such Company Stockholder and stated to be specifically for use
therein and will reimburse Parent, the remaining Company Stockholders, such
directors, officers, or control persons for any legal or any other expenses
reasonably incurred in connection with
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investigating or defending any such claim, loss, damage, liability or action,
but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement or prospectus, in reliance upon and in conformity with written
information furnished to Parent by an instrument duly executed by such
Company Stockholder and stated to be specifically for use therein.
(c) 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 notice 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 (with counsel reasonably satisfactory to the Indemnified
Party), and the Indemnified Party may participate in such defense at such
party's expense unless (i) the Indemnifying Party has agreed to pay such fees
and expenses or (ii) the named parties to any such action or proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party, and such Indemnified Party has been advised by counsel that
there is a conflict of interest on the part of counsel employed by the
Indemnifying Party to represent such Indemnified Party (in which case, if such
Indemnified Party notifies the Indemnifying Party in writing that it elects to
employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party will not have the right to assume the defense of such action
or proceeding on behalf of such Indemnified Party; it being understood, however,
that the Indemnifying Party will not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (together with appropriate local counsel) at any time for all
such Indemnified Parties). The failure of any Indemnified Party to give notice
as provided herein shall not relieve the Indemnifying Party of its obligations
under this Agreement, except to the extent, but only to the extent, that the
Indemnifying Party's ability to defend against such claim or litigation is
impaired as a result of such failure to give notice. 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 any settlement
which (i) 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 to such claim or litigation and (ii) is not solely for monetary
damages. Whether or not the defense of any claim or action is assumed by the
Indemnifying Party, such Indemnifying Party will not be subject to any liability
for any settlement without its consent, but if settled with its written consent,
or if there is a final judgment for the plaintiff in any claim or action for
which the Indemnifying Party assumes the defense, the Indemnifying Party will
indemnify and hold harmless such Indemnified Parties from and against any loss,
damage or liability (to the extent stated above) by reason of such settlement or
judgment.
(d) If for any reason the indemnification provided for in the
preceding Sections 7(a) and 7(b) is unavailable to an Indemnified Party as
contemplated by those sections, then the Indemnifying Party will contribute to
the amount paid or payable by the Indemnified Party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect not
only the relative benefits received by the Indemnified Party and the
Indemnifying Party, but also the
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relative fault of the Indemnified Party and the Indemnifying Party, as well
as any other relevant equitable considerations, PROVIDED that no Company
Stockholder will be required to contribute in an amount greater than the
difference between (x) the net proceeds received by such Company Stockholder
with respect to the sale of any Registrable Securities and (y) all amounts
paid or owing to Parent by such Company Stockholder pursuant to Section 7(b)
or Section 7(c). The relative fault of Parent on one hand, and of any
Company Stockholder on the other hand, 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 a material fact
relates to information supplied by Parent or by the Company Stockholder and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or 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.
(e) The obligations of Parent and the Company Stockholders under
this Section 7 shall survive the completion of any offering of stock in a
registration statement under this Agreement.
8. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause Parent to
register Registrable Securities pursuant to this Agreement may not be assigned
by the Company Stockholders to any person or entity other than a Permitted
Assignee. As used herein, "Permitted Assignee" shall mean: (i) in the case of
any Company Stockholder or Permitted Assignee who is a natural person, such
person's spouse or children or grandchildren (in each case, natural or adopted),
any trust for the sole benefit of such person and such person's spouse or
children or grandchildren (in each case, natural or adopted), any charitable
trust the grantor of which is a Company Stockholder or Permitted Assignee, or
any corporation or partnership in which the direct and beneficial owner of all
of the equity interest is such individual person or such person's spouse or
children or grandchildren (in each case, natural or adopted) (or any trust
solely for the benefit of such persons), (ii) in the case of Company Stockholder
or Permitted Assignee who is a natural person, the heirs, executors,
administrators or personal representatives upon the death of such person or upon
the incompetency or disability of such person for purposes of the protection and
management of such person's assets; (iii) in the case of any Company Stockholder
or Permitted Assignee who is a partnership, such partnership's partners, (iv) in
the case of any Company Stockholder or Permitted Assignee who is a limited
liability company, such limited liability company's members, (v) in the case of
any Company Stockholder, any person or entity that receives Registrable
Securities as a gift, including any organization qualified under
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and (vi) in
the case of any Company Stockholder or Permitted Assignee, to any person or
entity who acquires five percent or more of the total number of Registrable
Securities.
9. AMENDMENT OF REGISTRATION RIGHTS. This Agreement may be amended by
the holders of a majority of the Registrable Securities and Parent at any time
by execution of an instrument in writing signed on behalf of each of the
parties.
10. TERMINATION. The registration rights set forth in this Agreement
shall terminate as to any Company Stockholder at such time as all of the
Registrable Securities then held by such Company
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Stockholder can be sold by such Company Stockholder in a single 3-month
period in accordance with Rule 144 under the Securities Act.
11. GRANT OF ADDITIONAL REGISTRATION RIGHTS. The Company Stockholders
acknowledge that Parent may acquire other companies and in the course of such
acquisitions may grant the equity owners thereof registration rights with
respect to their shares of Parent on terms which would be negotiated at such
time and may be materially different than the terms of this Agreement. Parent
will not hereafter enter into any agreement or arrangements which would grant
any party a right to participate in any registration that is superior to the
rights to participate set forth in this Registration Rights Agreement.
12. NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed effectively given upon
delivery to the party to be notified in person, by facsimile or by courier
service or five days after deposit with the United States mail, postage prepaid,
addressed (a) if to the Company Stockholders, at the Company Stockholders'
addresses as set forth in the securities register of Sub or Parent as the case
may be or (b) if to Parent at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: President.
13. GOVERNING LAW; INTERPRETATION. This Agreement shall be construed in
accordance and governed for all purposes by the laws of the State of New York
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof.
14. SEVERABILITY; SURVIVAL. If any portion of this Agreement is held by
a court of competent jurisdiction to conflict with any federal, state or local
law, or to be otherwise invalid, illegal or unenforceable, such portion of this
Agreement shall be of no force or effect, and this Agreement shall otherwise
remain in full force and effect and be construed as if such portion had not been
included in this Agreement. Notwithstanding the immediately preceding sentence,
the parties shall endeavor in good faith negotiations to replace any invalid,
illegal or unenforceable provision with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
15. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding of the parties and supersedes all prior discussions, agreement and
understandings relating to the subject matter hereof.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
17. WAIVERS. No failure or delay of any Company Stockholder or Parent
in exercising any power or rights hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of
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any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof
or the exercise of any other right or power.
IN WITNESS WHEREOF, Parent and the Company Stockholders have caused this
Agreement to be executed as of the date first above written.
PROBUSINESS SERVICES, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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SIGNATURE OF AUTHORIZED SIGNATORY
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Executive Officer
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PRINT NAME AND TITLE
COMPANY STOCKHOLDERS
Cambridge Technology Capital
Fund II, L.P.
By: Cambrdige Technology GPLP, L.P.
its general partner
By: Cambridge Technology CGP, Inc.
its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
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D. ▇▇▇▇▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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Noro-▇▇▇▇▇▇ Partners III, L.P.
By: ▇▇▇▇▇▇▇ & Company III, LLC
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Estate of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: personal representative for
the estate
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Wolvy, L.P.
By: Wolvy Management, Inc.
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Fidelity Investors II Limited
Partnership
By: Fidelity Investors Management,
L.L.C.
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Fidelity Ventures Limited
By: Fidelity Capital Associates, Inc.
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Infinium Software, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. Infinium
---------------------------------
Name: ▇▇▇▇▇▇ ▇. Infinium
Title: Chief Financial Officer
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
TL Ventures III, L.P.
By: TL Ventures III Management L.P.,
its general partner
By: TL Ventures III LLC,
its general partner
By: /s/
-------------------------------
Name:
Title: Managing Director
TL Ventures III Offshore L.P.
By: TL Ventures III Offshore Partners
L.P.,
its general partner
By: TL Ventures III Offshore Ltd,
its general partner
By: /s/
-------------------------------
Name:
Title: Managing Director
TL Ventures III INTERFUND L.P.
By: TL Ventures III LLC,
its general partner
By: /s/
-------------------------------
Name:
Title: Managing Director
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
EXHIBIT A
Company Stockholders