EXHIBIT 10.28
CHANNEL PARTNER AGREEMENT
THIS CHANNEL PARTNER AGREEMENT (the "Agreement") is entered into as of the
27th day of March, 2000, between Trans Union LLC, a Delaware limited liability
company ("Trans Union"), and PRIMIS, Inc., a Georgia corporation ("PRIMIS").
RECITALS
A. Trans Union is engaged in providing consumer credit reporting and other
services, including packaged settlement services, to lenders and others on a
nationwide basis.
B. PRIMIS is engaged in providing appraisals, home inspections, title
services, flood determinations, energy audits and other related property
information services to lenders and others on a nationwide basis.
C. Trans Union and PRIMIS desire to promote each other's products and
services and engage in certain joint or coordinated marketing and promotional
activities on the terms and conditions set forth in this Agreement.
D. In connection with this Agreement and in consideration for the
marketing, promotional and other assistance or services to be provided by Trans
Union from time to time hereunder, PRIMIS has agreed to issue to Trans Union a
Warrant (as defined in Section 6 hereof) to purchase shares of Common Stock of
PRIMIS.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the parties hereto agree as follows:
1. MARKETING AND PROMOTION. From and after the Effective Date (as defined
in Section 8):
(a) Trans Union shall use its commercially reasonable best efforts to
assist PRIMIS to market to PRIMIS's actual or potential clients a "bundled" set
of services that will include services provided by Trans Union; PROVIDED,
HOWEVER, that Trans Union shall not be required to provide any such assistance
with respect to any clients of Trans Union or lenders or financial institutions
to which Trans Union intends to actively market its own packaged settlement
services.
(b) Trans Union and PRIMIS shall use their commercially reasonable best
efforts to create a mutual understanding of opportunities that are of priority
interest for the other party and assist the other party to identify target
clients, develop proposals, jointly or, in situations in which joint efforts are
not practicable or appropriate, individually, and present such proposals to the
potential or target clients to the extent such efforts relate to products and
services that meet each party's overall price and quality criteria and are
consistent with such party's organizational objectives as determined from time
to time. Without limiting the generality of the foregoing, Trans
Union will use its commercially reasonable best efforts to assist PRIMIS to
promote PRIMIS's "electronic collateral assessment" (ECA) valuation tool to
Trans Union's customers to the extent the ECA meets Trans Union's overall price
and quality criteria and such assistance is consistent with Trans Union's
organizational objectives as determined from time to time.
(c) Trans Union and PRIMIS shall use their commercially reasonable best
efforts to develop a joint marketing and business development plan each year.
Such plan shall be completed and approved by both parties within thirty (30)
days prior to the end of the previous year.
2. ADVERTISING AND PROMOTIONAL MATERIAL. Trans Union hereby consents to the
reference to Trans Union as a client of PRIMIS in any marketing, advertising and
promotional material of PRIMIS, including, without limitation, advertising in
magazines, newspapers, flyers, brochures, radio or outdoor advertising,
marketing presentations and related advertising materials and PRIMIS's web-site;
PROVIDED, HOWEVER, that Trans Union shall have the opportunity to review any
such materials that include a reference to Trans Union in advance and to approve
them prior to their release, which approval shall not be unreasonably delayed or
withheld.
3. DISCLOSURE AND PUBLICITY.
(a) PRIMIS PROSPECTUS. Trans Union hereby consents to the reference to
Trans Union in the prospectus (which terms shall include any preliminary
prospectus) to be used by PRIMIS in connection with its initial public offering
and to the description of all relationships between PRIMIS and Trans Union in
the prospectus; PROVIDED, HOWEVER, that Trans Union and its counsel shall be
given reasonable opportunity to review and comment on such description before
the registration statement of which the prospectus forms a part, or such
prospectus, is filed with the Securities and Exchange Commission and approve
such description, which approval shall not be unreasonably delayed or withheld.
Nothing herein shall prevent PRIMIS from making any disclosure that, based on
the written advice of counsel (a copy of which shall be delivered to Trans
Union), it is required to make under applicable federal securities laws and
regulations.
(b) PRESS RELEASES. If PRIMIS and Trans Union shall deem appropriate to
issue a press release regarding the relationship established by this Agreement,
they shall cooperate with each other on the preparation of and shall approve the
form and content of such press release. Any press release concerning the
relationship established by this Agreement proposed by either party during the
term hereof shall be subject to the other party's approval, which approval shall
not be unreasonably delayed or withheld.
4. JOINT RELATIONSHIPS WITH THIRD PARTY SUPPLIERS. From and after the
Effective Date and subject to all applicable law, including, without limitation,
the federal Real Estate Settlement Procedures Act (12 USC 2601 ET SEQ.) and all
regulations enacted thereunder ("RESPA"), PRIMIS and Trans Union shall use their
commercially reasonable best efforts to establish joint relationships with third
party suppliers of property data and to develop additional or enhanced "bundled"
services combining such third party data with property information services from
PRIMIS and Trans Union for particular segments of the property information
services market to the extent such efforts relate to services that meet each
party's overall price and quality criteria and are consistent with such party's
organizational objectives as determined from time to time; PROVIDED, HOWEVER,
that neither
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party hereto shall be required to enter into any exclusive relationship with any
third party. From and after the Effective Date, PRIMIS and Trans Union shall use
their commercially reasonable best efforts to jointly develop a "bundled" set of
services for the "real estate owned" (REO) segment incorporating data from a
third party supplier, PRIMIS's valuation tools and credit reports and related
information from Trans Union to the extent such set of services meets each
party's overall price and quality criteria and is consistent with such party's
organizational objectives as determined from time to time; subject, however, to
all applicable law including, without limitation, RESPA.
5. QUARTERLY REVIEW MEETINGS. From and after the Effective Date, Trans
Union and PRIMIS shall meet no less frequently than quarterly to review the
status of joint marketing projects and other initiatives under this Agreement
and to consider additional areas of cooperation.
6. ISSUANCE OF WARRANT; REGISTRATION RIGHTS AGREEMENT. In consideration of
Trans Union's marketing, promotional and other assistance and services
hereunder, PRIMIS agrees that, upon the closing of the initial public offering
of Common Stock, provided that this Agreement has not been terminated by PRIMIS
pursuant to Section 8(b) prior to such time, PRIMIS will issue to Trans Union a
warrant (the "Warrant") to purchase 190,875 shares of Common Stock (as adjusted
for a 1.8622-for-1 stock split to be effected as a stock dividend concurrently
with the initial public offering of Common Stock of PRIMIS), and otherwise on
the terms and conditions set forth on EXHIBIT A hereto. Concurrently with the
issuance of the Warrant, PRIMIS and Trans Union shall enter into the
Registration Rights Agreement (the "Registration Rights Agreement"), a form of
which is attached as EXHIBIT B hereto.
7. NONSOLICITATION.
(a) Trans Union and PRIMIS agree that if, during the term of this
Agreement, one of them is engaged by the other as a subcontractor
("Subcontractor Partner") in providing services to a customer ("Customer"), then
the Subcontractor Partner shall not directly solicit the business of Customer,
either during the course of providing those subcontracted services, or for one
hundred and eighty (180) days after the termination of such subcontracted
services. Likewise, if either Trans Union or PRIMIS originates a sales call with
a prospective customer and invites the other party hereto (the "Invitee") to
participate in such sales call, the Invitee agrees that it will neither solicit
nor accept business directly from any such prospective customer to the detriment
of the business arrangement proposed at that sales call; furthermore, the
Invitee will in good faith offer reasonable assistance to help secure the
proposed business arrangement for both parties hereto, for a one hundred and
eighty (180) day period after the sales call. Should a client or proposed client
of either PRIMIS or Trans Union reject the inclusion of the services of the
other party hereto in any business arrangement, then the party with whom the
client or proposed client wishes to contract shall be free to contract with that
client.
(b) The parties hereto agree that the covenants and agreements
contained in this Section 7 are reasonable and necessary to protect and preserve
the interests and business of the parties; that irreparable loss and damage will
be suffered by a party hereto should the other party breach any of such covenant
and agreements; that each of such covenants and agreements is separate, distinct
and severable from the other and remaining provisions of this Agreement; that
the unenforceability of
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any other such covenant or agreements or any other provision or provisions of
this Agreement; and that, in addition to other remedies available to it, each
party hereto shall be entitled to specific performance of this Agreement and
to both temporary and permanent injunctions without the necessity of posting
bond to prevent a breach or contemplated breach by the other party of any of
such covenants or agreements.
8. TERM AND TERMINATION. Subject to the provisions for early termination
hereinafter provided, this Agreement shall be for a term of three (3) years
commencing on the closing of the initial public offering of Common Stock (the
"Effective Date"; except that the provisions of Sections 3(a) shall take effect
upon the execution and delivery of this Agreement). Either party (a
non-defaulting party) may terminate this Agreement immediately upon the
occurrence of any of the following events:
(a) failure by PRIMIS to issue the Warrant and to execute and deliver
the Registration Rights Agreement by June 15, 2000;
(b) a material failure by the other party to observe or perform any
material covenant or obligation under this Agreement, or the material breach of
any representation or warranty made herein by the other party, and the
continuation of such failure or breach for a period of thirty (30) days after
notice of such failure or breach has been given by the non-defaulting party;
(c) the other party admitting its inability to pay its debts as they
mature or making of an assignment for the benefit of creditors;
(d) the commencement of proceedings by or against the other party in
bankruptcy, or for corporate reorganization, or for the readjustment of debts
under laws relating to bankruptcy or for the relief of debtors now or hereafter
existing, and, in the case of proceedings commenced against such party, the
failure to discharge such proceedings within sixty (60) days of their
commencement; or
(e) the appointment of a receiver or trustee for the other party or a
substantial part of the other party's assets or the institution of any
proceedings for the dissolution or the full or partial liquidation of the other
party, which proceedings shall not have been discharged within thirty (30) days
of their commencement.
9. REPRESENTATIONS AND WARRANTIES OF PRIMIS. PRIMIS hereby represents and
warrants to Trans Union as follows:
(a) PRIMIS is a corporation duly organized, validly existing and in
good standing the laws of the State of Georgia, and has the full corporate power
and authority (i) to own and use its properties, (ii) to transact the business
in which it is engaged and (iii) to execute, deliver and perform this Agreement.
(b) The execution, delivery and performance of this Agreement, the
Warrant and the Registration Rights Agreement by PRIMIS has been duly authorized
by all necessary corporate action and will not violate any provision of its
organizational documents or constitute a material
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breach or violation of or default under, or require the consent of any other
person under, any material agreement including, without limitation, the Second
Amended and Restated Registration Rights Agreement dated as of June 16, 1998, to
which PRIMIS is a party or is otherwise bound.
(c) This Agreement constitutes and, upon the execution and delivery
thereof by PRIMIS as contemplated herein, the Warrant and the Registration
Rights Agreement will constitute, the valid and binding obligations of PRIMIS
enforceable against PRIMIS in accordance with their respective terms.
10. MISCELLANEOUS.
(a) INDEPENDENT CONTRACTOR; NON-EXCLUSIVITY. Nothing in this Agreement
shall be construed to create a relationship of partnership or joint venture
between the parties and, to the extent Trans Union and PRIMIS perform services
for each other under this Agreement, each of Trans Union and PRIMIS shall be
independent contractors with respect to the conduct of their respective
businesses. Nothing contained in this Agreement shall be construed to prohibit
Trans Union and PRIMIS from obtaining services from or entering into any
relationship with any other person during the term of this Agreement.
(b) SCHEDULES AND EXHIBITS. Any Schedules and Exhibits attached hereto
are an integral part of this Agreement and reference to this Agreement shall be
deemed to include any such Schedules and Exhibits.
(c) SEVERABILITY. If any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, and
each provision of this Agreement shall be enforced to the fullest extent
permitted by law.
(d) WAIVER. No waiver of a breach of any provision of this Agreement
shall be effective unless given in writing by the party from which the waiver is
sought. No waiver by any party of a breach of any provision of this Agreement by
the other party shall operate or be construed as a waiver of any subsequent
breach of such provision by such other party or of any breach of any other
provision of this Agreement.
(e) NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered personally,
including delivery by courier or overnight delivery service, or on the date
delivered by facsimile (with receipt confirmed electronically), or three (3)
days following the date when deposited in the United States mail, certified or
registered mail, return receipt requested, postage prepaid, in each case
addressed as follows:
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If to PRIMIS:
PRIMIS, Inc.
00000 Xxxxx Xxxx Xxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Chief Legal Officer
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to Trans Union:
Trans Union LLC
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as either party shall notify the other as provided
herein.
(f) BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of Trans Union and PRIMIS and their respective
successors and permitted assigns. Neither party may assign this Agreement or any
of its rights or obligations hereunder without the prior written consent of the
other party.
(g) COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
(h) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, without regard to the
conflicts of laws provisions thereof.
(i) ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the entire
agreement between the parties hereto with respect to the services to be provided
hereunder and supersedes all prior and contemporaneous agreements and
understandings with respect thereto. No modifications or amendments of this
Agreement shall be valid or effective unless in writing executed by both parties
hereto.
(j) COSTS OF ENFORCEMENT. In the event any legal action is taken by
either party against the other party to enforce any of the terms and provisions
of this Agreement, the unsuccessful party to such action shall pay to the
prevailing party therein all court costs, reasonable attorneys' fees and
expenses incurred by the prevailing party.
(k) INTERPRETATION. This Agreement is a contract of Trans Union acting
through its Resources and Property Management Division; shall be interpreted
solely with respect to the
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Resource and Property Management Division and no other division or business unit
of Trans Union; and any performance obligation of Trans Union under this
Agreement shall be considered a performance obligation of the Resource and
Property Management Division and no other division or business unit of Trans
Union.
(l) REPRESENTATIONS AND WARRANTIES OF TRANS UNION. This Agreement
constitutes and, upon the execution and delivery thereof by Trans Union as
contemplated herein, the Registration Rights Agreement will constitute, valid
and binding obligations of Trans Union enforceable against Trans Union in
accordance with their respective terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
PRIMIS, INC.
By:
-----------------------------------------------
Name:
Title:
TRANS UNION LLC
By:
-----------------------------------------------
Name:
Title:
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THIS WARRANT AND SHARES ISSUABLE ON EXERCISE OF THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
APPLICABLE STATE SECURITIES LAWS BY REASON OF EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF THE ACT AND SUCH STATE SECURITIES LAWS AND MAY NOT BE SOLD,
PLEDGED, ASSIGNED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR AN
EXEMPTION THEREFROM UNDER SUCH ACT OR LAWS.
WARRANT
To Purchase Up To 190,875(1) Shares
of Common Stock of
PRIMIS, INC.
For value received, PRIMIS, INC., a Georgia corporation (the
"Corporation"), hereby grants to TRANS UNION LLC, a Delaware limited liability
company ("Trans Union"), or its registered assigns, the right to subscribe for
and purchase, from time to time during the Effective Period, up to 190,875
shares of duly authorized, validly issued, fully paid and non-assessable Common
Stock of the Corporation, at the Warrant Price, subject to adjustment as
hereinafter provided, upon the terms and subject to the conditions hereinafter
set forth.
1. DEFINITIONS. For the purposes of this Warrant, the following terms have
the following meanings:
"Business Day" shall mean any day other than a Saturday, Sunday or other
day on which commercial banks in Atlanta, Georgia are required by law to close.
"Channel Partner Agreement" shall mean that certain Channel Partner
Agreement, dated March 27, 2000, between Trans Union and the Corporation.
"Common Stock" shall mean the Corporation's Common Stock, par value $0.01
per share, and, in the case of a reclassification, recapitalization or other
similar change in such Common Stock or in the case of a consolidation or merger
of the Corporation with or into another Person, such consideration to which a
holder of a share of Common Stock would have been entitled upon the occurrence
of such event.
"Corporation" shall mean PRIMIS, Inc., a Georgia corporation, and its
successors and assigns.
---------------------------
1 Adjusted for a 1.8622-for-1 stock split to be effected in the form of a
stock dividend concurrently with the Corporation's initial public offering.
"Effective Period" shall mean the period beginning on the date of issuance
hereof and ending at 5:00 p.m. Eastern Standard Time on the tenth anniversary of
the closing of the PRIMIS IPO.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any similar Federal statute then in effect.
"Exercise Date" shall mean the date on which an exercising Holder has
submitted to the Corporation this Warrant and the subscription form attached
hereto as EXHIBIT A and, if applicable, has paid the Warrant Price as required
by Section 3.3.1 hereof.
"Fair Market Value" of a share of Common Stock as of any date shall mean,
as of any date, the average of the closing prices of Common Stock for the twenty
(20) consecutive Trading Days next preceding the date five (5) Business Days
prior to the date in question. The closing price for each day shall be:
(i) the average of the closing sale price or, in the absence of a closing
sale price, the highest bid and lowest asked prices of one share of
Common Stock quoted in the Nasdaq National Market System or any
similar system of automated dissemination of quotations of securities
prices then in common use, if so quoted; or
(ii) if not quoted as described in clause (i), the average of the highest
bid and lowest offered quotations for one share of Common Stock as
reported by the National Quotation Bureau Incorporated if at least two
securities dealers have inserted both bid and offered quotations for
Common Stock on at least five (5) of the twenty (20) consecutive
Trading Days next preceding the date five (5) days prior to the date
in question; or
(iii) if the Common Stock is listed or admitted for trading on any national
securities exchange, the last sale price, or the closing bid price if
no sale occurred, of one share of Common Stock on the principal
securities exchange on which the Common Stock is listed or admitted
for trading.
If none of the conditions set forth above is met, the closing price of one share
of Common Stock on any day or the average of such closing prices for any period
shall be the Fair Market Value of Common Stock for such day or period as
determined by a member firm of the New York Stock Exchange selected by the
Corporation and approved by the Holder. If the Corporation and the Holder are
unable to agree on the selection of a member firm, then the issue of selection
of a member firm shall be submitted to the American Arbitration Association.
"Holder" shall mean Trans Union, as the original registered holder of this
Warrant, and any registered transferee of a Holder.
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"Person" shall mean an individual, corporation, partnership, trust,
unincorporated association, limited liability company, limited liability
partnership, government organization or agency or political subdivision thereof,
sole proprietorship or any other form of entity not specifically listed herein.
"PRIMIS IPO" shall mean an initial offering of Common Stock to the general
public which is effected pursuant to a registration statement filed with and
declared effective by the Securities and Exchange Commission under the
Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar Federal statute then in effect.
"Stock" shall include any and all shares, interests or other equivalents
(however designated) of, or participations in, the capital stock of the
Corporation of any class.
"Subsidiary" shall mean any corporation at least 50% of whose outstanding
capital stock shall at the time be owned directly or indirectly by the
Corporation or by one or more Subsidiaries or by the Corporation and one or more
Subsidiaries.
"Trading Day" shall mean, with respect to the Common Stock: (i) if the
Common Stock is quoted on the Nasdaq National Market System, any similar system
of automated dissemination or quotations of securities prices, or the National
Quotation Bureau Incorporated, each day on which quotations may be made on such
system; or (ii) if the Common Stock is listed or admitted for trading on any
national securities exchange, days on which such national securities exchange is
open for business; or (iii) if shares of the Common Stock are not quoted on any
system or listed or admitted for trading on any securities exchange, a Business
Day.
"Warrant" shall mean this Warrant.
"Warrant Price" shall initially mean the price per share at which shares of
Common Stock are sold to the public in the PRIMIS IPO, and thereafter such other
prices as shall result from the adjustments specified in Section 5 hereof.
"Warrant Shares" shall initially mean One Hundred Ninety Thousand Eight
Hundred and Seventy-Five (190,875) shares of Common Stock and thereafter such
number of shares of Common Stock as shall result from the adjustments specified
in Section 5 hereof.
2. DURATION. Subject to the vesting provisions of Section 3.1 hereof, the
right to exercise this Warrant to subscribe for and purchase shares of Common
Stock shall commence on date hereof and shall expire at the end of the Effective
Period.
3. VESTING; METHOD OF EXERCISE; PAYMENT; ISSUANCE OF NEW WARRANT; TRANSFER
AND EXCHANGE.
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3.1 During the Effective Period, the Holder hereof may exercise this
Warrant only to the extent that the Warrant Shares have vested. Subject to the
accelerated vesting provisions in this Section 3.1, the Warrant Shares shall
vest one hundred eighty (180) days after the date of the closing of the PRIMIS
IPO provided that the Channel Partner Agreement has not been terminated by the
Corporation pursuant to Section 8(b) thereof on or prior to such date.
Notwithstanding the foregoing, all Warrant Shares shall immediately vest
upon the occurrence of a Change in Control of the Corporation. For purposes
hereof, the term "Change in Control" shall mean:
(i) The acquisition (other than from the Corporation) by any person,
entity or "group", within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act (excluding, for this purpose, the Corporation or any
employee benefit plan of the Corporation which acquires beneficial
ownership of voting securities of the Corporation) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
50% or more of either the then outstanding shares of Common Stock or the
combined voting power of the Corporation's then outstanding voting
securities entitled to vote generally in the election of directors;
(ii) Individuals who, as of the date hereof, constitute the Board of
Directors of the Corporation (as of the date hereof the "Incumbent Board")
cease for any reason to constitute at least a majority of the Board of
Directors, provided that any person becoming a director subsequent to the
date hereof whose election, or nomination for election by the Corporation's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to the
election of the directors of the Corporation, as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) shall be,
for purposes of this Warrant, considered as though such person were a
member of the Incumbent Board; or
(iii) Approval by the shareholders of the Corporation of (A) a
reorganization, merger or consolidation, in each case, with respect to
which persons who were the shareholders of the Corporation immediately
prior to such reorganization, merger or consolidation do not, immediately
thereafter, own more than 50% of the outstanding Common Stock or combined
voting power entitled to vote generally in the election of directors of the
reorganized, merged or consolidated Corporation in substantially the same
proportions as their ownership, immediately prior to such reorganization,
merger or consolidation, of such Common Stock or combined voting power, (B)
a liquidation or dissolution of the Corporation or (C) the sale of all or
substantially all of the assets of the Corporation.
3.2 Subject to Section 3.1 hereof, the Holder hereof may exercise this
Warrant, in whole or in part, by delivery to the Corporation at its office at
00000 Xxxxx Xxxx Xxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Chief
Legal Officer (or such other address as the Corporation
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may specify to Holder from time to time), of (i) a written notice of Holder's
election to exercise this Warrant, which notice shall specify the number of
shares of Common Stock to be purchased, (ii) payment of the Warrant Price in the
manner provided in Section 3.3 and (iii) this Warrant. Such notice shall be
substantially in the form of the subscription form appearing at the end of this
Warrant as EXHIBIT A, duly executed by Holder or its agent or attorney. In the
event of any exercise of the rights represented by this Warrant, (i)
certificates for the shares of Common Stock so purchased shall be dated the date
of such exercise and delivered within a reasonable time, not exceeding 15 days
after such exercise, to or upon the written order of the Holder and in such name
or names as Holder may designate, and the Holder hereof shall be deemed for all
purposes to be the Holder of the shares of Common Stock so purchased as of the
date of such exercise, and (ii) unless this Warrant has expired, this Warrant
shall be returned to the Holder hereof within such time with a notation made on
SCHEDULE I attached to this Warrant as to the number of shares of Common Stock
for which this Warrant was exercised, the exercise date, and the number of
shares of Common Stock which remain issuable pursuant thereto.
3.3 The Warrant Price may be paid by any of the following methods, or any
combination thereof, as specified in the subscription form appearing at the end
of this Warrant as EXHIBIT A:
3.3.1 Cash payment of an amount equal to the product of the Warrant
Price and the number of shares of Common Stock to be purchased, made either by
(i) wire transfer to an account in a bank located in the United States
designated for such purpose by the Corporation or (ii) delivery of a certified
or official bank check.
3.3.2 By delivering to the Corporation shares of Common Stock already
held by the Holder, duly endorsed for transfer, having a Fair Market Value on
the Exercise Date equal to the aggregate Warrant Price for the Warrant Shares as
to which the Warrant is being exercised.
3.3.3 In a broker-assisted transaction, by delivering to the
Corporation a copy of irrevocable instructions to a broker to deliver promptly
to the Corporation an amount of sale proceeds from the sale of Warrant Shares
equal to the aggregate Warrant Price for the Warrant Shares as to which the
Warrant is being exercised.
3.4 The Corporation will, at its own expense, from time to time take
all action which may be necessary to obtain and keep effective any and all
permits, consents, orders and approvals of governmental agencies and authorities
which are or become required or necessary so that any Common Stock, immediately
upon its issuance upon the exercise of this Warrant, will be listed on each
securities exchange or listing or quotation services, if any, on which Common
Stock of the Corporation is then listed.
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4. STOCK FULLY PAID; RESERVATION OF SHARES.
4.1 The Corporation covenants and agrees that all shares of Common
Stock which may be issued upon the exercise of the rights represented by this
Warrant will, upon issuance, be fully paid and non-assessable and free from all
taxes, liens and charges with respect to issuance. The Corporation further
covenants and agrees that during the Effective Period, the Corporation will at
all times have authorized and reserved for the purpose of the issue upon
exercise of this Warrant a sufficient number of shares of Common Stock to
provide for the exercise of the rights represented by this Warrant. If the
Warrant Price is at any time less than the par value of the Common Stock, the
Corporation also covenants and agrees to cause to be taken such action (whether
by decreasing the par value of the Common Stock, the conversion of the Common
Stock from par value to no par value, or otherwise) as will permit the exercise
of this Warrant and the issuance of the Common Stock without any additional
payment by the Holder hereof (other than payment of the Warrant Price and
applicable transfer taxes, if any), which Common Stock, upon such issuance, will
be fully paid and non-assessable.
4.2 The Corporation shall not by any action, including, without
limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate to protect the
rights of the Holder hereof against impairment. Without limiting the generality
of the foregoing, the Corporation will (a) not increase the par value of any
shares of Common Stock above the amount payable therefor upon the exercise of
this Warrant immediately prior to such increase in par value and (b) take all
such action as may be necessary or appropriate in order that the Corporation may
validly and legally issue fully paid and nonassessable shares of Common Stock,
free and clear of any liens, claims, encumbrances and restrictions (other than
as provided herein) upon the exercise of this Warrant.
5. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. The number and kind
of securities purchasable upon the exercise of this Warrant and the amount of
the Warrant Price shall be subject to adjustment from time to time upon the
happening of certain events as follows:
5.1 RECAPITALIZATION, REORGANIZATION, RECLASSIFICATION, CONSOLIDATION
OR MERGER. In case of any recapitalization or reorganization of the Corporation
or any reclassification or change of outstanding Stock issuable upon exercise of
this Warrant (other than a change in par value, or from par value to no par
value, or from no par value to par value or as a result of a subdivision or
combination), or in case of any consolidation or merger of the Corporation with
or into another corporation (other than a merger with another corporation in
which the Corporation is the surviving corporation and which does not result in
any reclassification or change (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of a
subdivision or combination) of outstanding Stock issuable upon exercise of this
Warrant), the Holder of this Warrant shall be entitled to receive, upon exercise
of this Warrant, the kind and the highest amount of shares of Stock, other
securities, money and property receivable upon such recapitalization,
reorganization, reclassification, change, consolidation or merger by a Holder of
one
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share of Common Stock as if this Warrant had been exercised immediately
prior to such recapitalization, reorganization, reclassification, change,
consolidation or merger. The provisions of this Section 5.1 shall similarly
apply to successive recapitalizations, reorganizations, reclassifications,
changes, consolidations and mergers.
5.2 SUBDIVISION OR COMBINATION OF SHARES. If the Corporation, at any
time while this Warrant is outstanding, shall subdivide or combine any class or
classes of its Common Stock, the Warrant Price shall be proportionately reduced,
in case of subdivision of shares, to reflect the increase in the total number of
shares of Common Stock outstanding as a result of such subdivision, as at the
effective date of such subdivision, or if the Corporation shall take a record of
holders of any class or classes of its Common Stock for the purpose of so
subdividing, as at the applicable record date, whichever is earlier, or shall be
proportionately increased, in the case of combination of shares, to reflect the
reduction in the total number of shares of Common Stock outstanding as a result
of such combination, as at the effective date of such combination or, if the
Corporation shall take a record of holders of any class or classes of its Common
Stock for the purpose of so combining, as at the applicable record date,
whichever is earlier.
5.3 STOCK DIVIDENDS. If the Corporation, at any time while this Warrant
is outstanding, shall pay a dividend in, or make any other distribution of,
Common Stock, the Warrant Price shall be adjusted, as at the date the
Corporation shall take a record of the holders of such class or classes of
Common Stock, for the purpose of receiving such dividend or other distribution
(or if no such record is taken, as at the date of such payment or other
distribution), to that price determined by multiplying the Warrant Price in
effect immediately prior to the record date (or if no such record is taken, then
immediately prior to such payment or other distribution), by a fraction (i) the
numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution, and (ii) the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution (plus, in the event
that the Corporation paid cash for fractional shares, the number of additional
shares which would have been outstanding had the Corporation issued fractional
shares in connection with said dividends).
5.4 TREASURY SHARES. In making any adjustments in the Warrant Price
hereinbefore provided in this Section 5, the number of shares of Common Stock at
any time outstanding shall not include any shares thereof then directly or
indirectly owned or held by or for the account of the Corporation or any of its
Subsidiaries.
5.5 OTHER ACTION AFFECTING COMMON STOCK. In case after the date hereof
the Corporation shall take any action affecting its Common Stock, other than an
action described in any of the foregoing Sections 5.1 through 5.3, inclusive,
and the failure to make any adjustment would not fairly protect the purchase
rights represented by this Warrant in accordance with the essential intent and
principles of this Section 5, then the Warrant Price and the number of shares of
Common Stock purchasable upon the exercise of this Warrant shall be adjusted in
such manner as the Board of Directors of the Corporation shall in good faith
determine to be equitable in the circumstances.
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5.6 ADJUSTMENT OF NUMBER OF SHARES. Upon each adjustment in the Warrant
Price pursuant to any provision of Section 5.2 or 5.3, the number of shares of
Common Stock purchasable hereunder shall be adjusted, to the nearest whole
share, to the product obtained by multiplying the number of such shares
purchasable immediately prior to such adjustment in the Warrant Price by a
fraction, the numerator of which shall be the Warrant Price immediately prior to
such adjustment and the denominator of which shall be the Warrant Price
immediately thereafter. If the Corporation shall be in default under any
provision contained in the last sentence of Section 4.2 of this Warrant so that
such shares, upon issuance, would not be validly issued under applicable law at
the Warrant Price adjusted in accordance with this Section 5, the adjustment of
shares provided in the foregoing sentence shall nonetheless be made and the
Holder of this Warrant shall be entitled to purchase such greater number of
shares at the lowest price at which such shares may be validly issued under
applicable law. Such exercise shall not constitute a waiver of any claim arising
against the Corporation by reason of its default under Section 4.2 of this
Warrant.
6. NOTICE OF ADJUSTMENTS. Whenever the Warrant Price or number of shares of
Common Stock purchasable upon exercise of this Warrant shall be adjusted
pursuant to Section 5 hereof, the Corporation shall cause the independent
accounting firm then regularly engaged by it to report on its financial
statements to prepare and execute a certificate setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated (including a description of the
basis on which the Board of Directors of the Corporation made any determination
hereunder), and the Warrant Price and number of shares of Common Stock
purchasable hereunder after giving effect to such adjustment, and shall cause
copies of such certificate to be mailed (by first class mail postage prepaid) to
the Holder of this Warrant promptly after each adjustment.
7. RESTRICTIONS ON TRANSFERABILITY. Subject to compliance with this Section
7, this Warrant may be transferred on the books of the Corporation by the Holder
hereof in person or by duly authorized attorney, upon surrender of this Warrant
at the principal office of the Corporation, properly endorsed and upon payment
of any necessary transfer tax or other governmental charge imposed upon such
transfer. Subject to compliance with this Section 7, this Warrant is
exchangeable at the aforesaid principal office of the Corporation for warrants
for the purchase of the same aggregate number of shares of Common Stock, each
new warrant to represent the right to purchase such number of shares of Common
Stock as the Holder hereof shall designate at the time of such exchange. All
warrants issued on transfers or exchanges shall be dated the date hereof and
shall be identical with this Warrant except as to the number of shares of Common
Stock issuable pursuant hereto.
7.1 The Warrant and the Warrant Shares issued upon exercise of the
Warrant shall not be transferred, hypothecated or assigned before satisfaction
of the conditions specified in this Section 7 (unless transferred or assigned
pursuant to Section 8), which conditions are intended to ensure compliance with
the provisions of the Securities Act and state securities or "blue sky" laws
with respect to the transfer, hypothecation or assignment of the Warrant or any
Warrant Shares. Holder, by acceptance of this Warrant, agrees to be bound by the
provisions of this Section 7.
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7.2 Prior to any transfer, hypothecation or assignment or attempted
transfer, hypothecation or assignment of the Warrant or any Warrant Shares
issued upon exercise of the Warrant, the Holder of such Warrant or Warrant
Shares shall give ten (10) days prior written notice (a "Transfer Notice") to
the Corporation of such Holder's intention to effect such transfer,
hypothecation or assignment, describing the manner and circumstances of the
proposed transfer, hypothecation or assignment, and provide the Corporation with
a written opinion of counsel addressed to the Corporation that the proposed
transfer, hypothecation or assignment of the Warrant or such Warrant Shares may
be effected without registration under the Securities Act and applicable state
securities or "blue sky" laws. After receipt of the Transfer Notice and written
opinion, the Corporation shall, within five (5) days thereof, so notify the
Holder of the Warrant or such Warrant Shares in writing and such Holder shall
thereupon be entitled to transfer, hypothecate or assign the Warrant or Warrant
Shares, in accordance with the terms of the Transfer Notice. The Holder of the
Warrant or such Warrant Shares, as the case may be, giving the Transfer Notice
shall not be entitled to transfer the Warrant or such Warrant Shares until
receipt of notice from the Corporation under this Section 7.2.
8. REGISTRATION RIGHTS. The Holder of this Warrant shall be entitled to the
rights, privileges and benefits set forth in the Registration Rights Agreement
dated as of the date hereof between the initial Holder of this Warrant and the
Corporation.
9. AMENDMENT AND WAIVER. Any term, covenant, agreement or condition in this
Warrant may be amended, or compliance therewith may be waived (either generally
or in a particular instance and either retroactively or prospectively), by a
written instrument or written instruments executed by the Corporation and the
Holder.
10. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA WITHOUT GIVING EFFECT TO THE
CHOICE OF LAW PRINCIPLES OF SUCH STATE.
11. REPLACEMENT. On receipt of evidence reasonably satisfactory to the
Corporation of the loss, theft, destruction or mutilation of this Warrant and in
the case of loss, theft or destruction, on delivery of an indemnity agreement or
bond reasonably satisfactory in form and amount to the Corporation or, in the
case of mutilation, on surrender and cancellation of this Warrant the
Corporation, at its expense, will execute and deliver in lieu of this Warrant a
new warrant of like tenor.
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12. SPECIFIC PERFORMANCE. The Holder shall have the right to specific
performance by the Corporation of the provisions of this Warrant. The
Corporation hereby irrevocably waives, to the extent that it may do so under
applicable law, any defense based on the adequacy of a remedy at law which may
be asserted as a bar to the remedy of specific performance in any action brought
against the Corporation for specific performance of this Warrant by the Holder.
Dated: ________, 2000 PRIMIS, INC.
By:
------------------------------------
Name:
Title:
Attest:
----------------------------------
Secretary
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SCHEDULE I
SCHEDULE OF WARRANT EXERCISE
NUMBER OF WARRANT NUMBER OF WARRANT
EXERCISE DATE SHARES BEING EXERCISED SHARES REMAINING
EXHIBIT A
SUBSCRIPTION FORM
[To be executed only upon exercise of Warrant]
Cash Exercise Method
The undersigned registered owner of the attached Warrant irrevocably
exercises, by the Cash Exercise Method in accordance with Section 3.3.1 of the
Warrant, the attached Warrant for the purchase of _______ shares of Common
Stock, $0.01 par value, of PRIMIS, INC. (the "Corporation") and herewith makes
payment therefor, to the order of the Corporation in the amount of $___________
as payment of the aggregate Warrant Price in accordance with the terms set forth
in Section 3.3.1.
Delivery of Shares Exercise Method
The undersigned registered owner of the attached Warrant irrevocably
exercises, by the Delivery of Shares Exercise Method in accordance with Section
3.3.2 of the Warrant, the attached Warrant for the purchase of _______ shares of
Common Stock, $0.01 par value, of the Corporation, and makes payment as follows:
(a) The Warrant Price on the Exercise Date: .
-----------------
(b) The Fair Market Value of a shares of Common Stock on the Exercise Date:
.
--------------------
(c) The number of shares of Common Stock, duly endorsed for transfer, being
delivered by the Holder herewith: .
---------------------
Broker-Assisted Transaction Exercise Method
The undersigned registered owner of the attached Warrant irrevocably
exercises, by the Broker-Assisted Transaction Exercise Method in accordance with
Section 3.3.4 of the Warrant, the attached Warrant for the purchase of _______
shares of Common Stock, $0.01 par value, of the Corporation, and makes payment
as follows:
(a) The Warrant Price on the Exercise Date: .
----------------
(b) Warrant Shares to be delivered to the following broker:
----------------
.
-------------------------
(c) Attached hereto are irrevocable instructions to the foregoing broker
to deliver to the Corporation an amount of sale proceeds from the sale
of
Warrant Shares delivered to said broker in accordance herewith equal
to the aggregate Warrant Price for the Warrant Shares being purchased
hereunder.
Issuance Instructions
The undersigned requests that a certificate for such Common Stock be
registered in the name of whose address is and
--------------- -----------------
that such certificate be delivered to whose address is . If such
----------------
number of shares of Common Stock is less than all of the shares of Common Stock
which may be purchased upon the exercise of the Warrant, the undersigned hereby
requests that a new Warrant representing the remaining balance of this Warrant
be registered in the name of whose address is
---------------- ------------------
and that such Warrant be delivered to whose address is
--------------- ---------.
------------------------------
Name of Registered Owner
------------------------------
Signature of Registered Owner
------------------------------
------------------------------
Address
------------------------------
------------------------------
Federal ID Number
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is entered into as of the _____ day of
______, 2000, by and between PRIMIS, INC., a Georgia corporation (the
"Corporation"), and TRANS UNION LLC, a Delaware limited liability company
("Trans Union").
PRELIMINARY STATEMENT
The Corporation has issued to Trans Union a warrant (the "Warrant"),
dated the date hereof, pursuant to which Trans Union has the right to purchase a
number of shares of Common Stock (such shares of Common Stock, as adjusted
pursuant to the provisions of Section 5 of the Warrant, being referred to
hereinafter as the "Shares").
Pursuant to the Warrant, the Corporation has agreed to extend certain
registration rights to Trans Union with respect to the Shares. In consideration
of the premises and mutual covenants and agreements hereinafter contained, the
parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1 DEFINITIONS. For purposes of this Agreement, capitalized terms
used and not defined elsewhere herein shall have the following meanings:
"ACT" means the Securities Act of 1933, as amended, or any similar Federal
statute, and the rules and regulations of the Commission issued under the Act,
as they each may, from time to time, be in effect.
"COMMISSION" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the Act.
"COMMON STOCK" means the shares of common stock, $0.01 par value, of the
Corporation.
"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 the Exchange Act, as they each may, from time to time, be in
effect.
"HOLDER" means Trans Union, any original registered holder of Registrable
Securities, and any registered transferee of a Holder.
"WARRANT" means the Warrant, dated the date hereof, issued by the
Corporation to Trans Union.
"REGISTRABLE SECURITIES" means (i) the Shares, and (ii) any other shares of
Common Stock of the Corporation issued in respect of the Shares (because of
stock splits, stock dividends, reclassifications, recapitalizations, or similar
events).
ARTICLE 2.
CAPITALIZATION
Section 2.1 CAPITALIZATION. The Corporation represents and warrants to
Trans Union that, on the date hereof, the authorized and issued and outstanding
shares of capital stock of the Corporation are as set forth on Schedule I
hereto.
ARTICLE 3.
REGISTRATION RIGHTS
Section 3.1 OPTIONAL REGISTRATIONS. If at any time or times after the date
hereof, the Corporation shall determine to register any of its Common Stock or
securities convertible into or exchangeable or exercisable for Common Stock
under the Securities Act (whether in connection with a public offering of
securities by the Corporation (a "primary offering"), a public offering thereof
by shareholders (a "secondary offering"), or both, but not in connection with
the Corporation's initial primary offering or a registration effected solely to
implement an employee benefit plan or a transaction to which Rule 145 or any
other similar rule or regulation of the Commission under the Securities Act is
applicable), it agrees to do the following:
(a) The Corporation shall promptly give written notice of registration
under this Section 3.1 to the Holders and will use its best efforts to effect
the registration under the Securities Act of all Registrable Securities for
which the Holders may request registration in a writing delivered to the
Corporation within thirty (30) days after receipt of such notice from the
Corporation; PROVIDED, HOWEVER, that in the case of the registration of Common
Stock by the Corporation in connection with an underwritten public offering, the
Corporation shall not be required to register Registrable Securities of the
Holders in excess of the amount, if any, of Common Stock which the principal
underwriter of an underwritten offering shall reasonably and in good faith agree
in writing to include in such offering.
(b) If any Registrable Securities are not to be registered pursuant to this
Section 3.1 because the number of Registrable Securities for which registration
has been requested by the Holders pursuant to paragraph (a) above exceeds the
amount of Registrable Securities which the principal underwriter of an
underwritten offering shall reasonably and in good faith agree in writing to
include in such offering, the Holders who have requested participation shall be
entitled to participate in such registration and offering in accordance with
Section 10 of the Second Amended and Restated Registration Rights Agreement
dated as of June 16, 1998 between the Corporation and certain shareholders.
(c) All expenses of the registration and offering and the reasonable fees
and expenses of not more than one independent counsel for the Holders shall be
borne by the Corporation, except that the Holders shall bear underwriting
commissions attributable to their Registrable Securities being registered and
transfer taxes on Registrable Securities being sold by such Holders.
(d) Without in any way limiting the types of registrations to which this
Section 3.1 shall apply, in the event that the Corporation shall effect a "shelf
registration" under Rule 415
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promulgated under the Securities Act or any other similar rule or regulation
("Rule 415"), the Corporation shall take all necessary action, including,
without limitation, the filing of post-effective amendments, to permit the
Holders to include their shares in such registration in accordance with all of
the terms of this Section 3.1.
Section 3.2 SELECTION OF UNDERWRITER. In the case of any registration
effectuated through an underwritten offering, the Corporation shall have the
right in its sole discretion to designate the managing underwriter or
underwriters, and each Holder whose Registrable Securities are registered for
sale through such underwritten offering shall enter into an underwriting
agreement in form and on terms customary for such transactions.
Section 3.3 STAND OFF AGREEMENT. Each Holder of Registrable Securities, if
requested by the Corporation and an underwriter of Common Stock or other
securities of the Corporation, shall agree not to sell or otherwise transfer or
dispose of any Registrable Securities or other securities of the Corporation
held by such Holder for a specified period of time (not to exceed 180 days)
following the effective date of a Registration Statement, provided all persons
holding not less than the number of shares of Common Stock held by such Holder
(including shares of Common Stock issuable upon the conversion of Shares, or
other convertible securities, or upon the exercise of options, warrants or
rights) enter into similar agreements. Such agreements shall be in writing in a
form satisfactory to the Corporation and such underwriter. The Corporation may
impose stop-transfer instructions with respect to the Registrable Securities or
other securities subject to the foregoing restriction until the end of the
standoff period.
Section 3.4 FURTHER OBLIGATIONS OF THE CORPORATION. Whenever under the
preceding sections of this Article 3 the Corporation is required to register
Registrable Securities, it agrees that it shall also do the following:
(a) Use its best efforts diligently to prepare for filing with the
Commission a registration statement and such amendments and supplements to said
registration statement and the prospectus used in connection therewith as may be
necessary to keep said registration statement effective and to comply with the
provisions of the Securities Act with respect to the sale of securities covered
by said registration statement for the period necessary to complete the proposed
public offering (but not in excess of 180 days);
(b) Furnish to each selling Holder such copies of each preliminary and
final prospectus and such other documents as such Holder may reasonably request
to facilitate the public offering of his or its Common Stock; and
(c) Use its best efforts to register or qualify the Common Stock covered by
said registration statement under the securities or "blue-sky" laws of such
jurisdictions as any selling Holder may reasonably request, provided that the
Corporation shall not be required to register in any states which require it to
qualify to do business or subject itself to general service of process.
Section 3.5 FORM S-3 REGISTRATION. If the Corporation becomes eligible to
use Form S-3 under the Securities Act or a comparable successor form, the
Corporation shall use its best efforts to continue to qualify at all times for
registration on Form S-3 or such successor form. At any time after the
Corporation becomes eligible to use Form S-3 or such successor form, the
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Holders of an aggregate of not less than ten percent (10%) of Registrable
Securities then outstanding and held by the Holders shall have the right to
request and have effected a registration of shares of Registrable Securities on
Form S-3 or such successor form for a public offering of shares of Registrable
Securities so long as at least 20,000 shares of Registrable Securities (as
adjusted for stock splits, stock dividends, recapitalizations or similar events)
are proposed to be included in such registration (such requests shall be in
writing and shall state the number of shares of Registrable Securities to be
disposed of and the intended method of disposition of such shares by such Holder
or Holders). The Corporation shall not be required to cause a registration
statement requested pursuant to this Section 3.5 to become effective prior to
ninety (90) days following the effective date of a registration statement
initiated by the Corporation, if the Corporation gives written notice, made in
good faith, to the Holders of Registrable Securities to the effect that the
Corporation is commencing to prepare a Corporation initiated registration
statement (other than a registration effected solely to implement an employee
benefit plan or a transaction to which Rule 145 or any other similar rule of the
Commission under the Securities Act is applicable); PROVIDED, HOWEVER, that the
Corporation shall use its best efforts to achieve such effectiveness promptly
following such ninety (90) day period if the request pursuant to this Section
3.5 has been made prior to the expiration of such ninety (90) day period. The
Corporation may postpone the filing of any registration statement required
hereunder for a reasonable period of time, not to exceed sixty (60) days, if the
Corporation has been advised by legal counsel that such filing would require the
disclosure of a material transaction or other factor and the Corporation
determines reasonably and in good faith that such disclosure would have a
material adverse effect on the Corporation. The Corporation shall give notice to
all Holders of the receipt of a request for registration pursuant to this
Section 3.5 and shall provide a reasonable opportunity for such Holders to
participate in the registration. Subject to the foregoing, the Corporation will
use its best efforts to effect promptly the registration of all Registrable
Securities on Form S-3 or such successor form to the extent requested by the
Holder or Holders thereof for purposes of disposition. If so requested by any
Holder in connection with a registration under this Section 3.5, the Corporation
shall take such steps as are required to register such Holder's Registrable
Securities for sale on a delayed or continuous basis under Rule 415, and to keep
such registration effective until all of such Holder's Registrable Securities
registered thereunder are sold (but not in excess of 365 days). All expenses
incurred in connection with a registration requested pursuant to this Section
3.5, including, without limitation, all registration, qualification, printing,
and accounting and counsel fees, shall be paid by the Holders participating in
such registration on a pro-rata basis in proportion to such participation.
Notwithstanding the foregoing, the Corporation shall not be required to effect a
registration under this Section 3.5 if, in the opinion of counsel for the
Corporation, which counsel and opinion shall be reasonably acceptable to the
Holders, such Holders may then sell all Registrable Securities proposed to be
sold in the manner proposed without registration under the Securities Act.
Section 3.6 INDEMNIFICATION. Incident to any registration statement
referred to in this Article 3, and subject to applicable law, (a) the
Corporation will indemnify each underwriter, each Holder of Registrable
Securities so registered, and each person controlling any of them, against all
claims, losses, damages and liabilities, including legal and other expenses
reasonably incurred in investigating or defending against the same, arising out
of any untrue statement of a material fact contained therein, or any omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or arising out of any
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violation by the Corporation of the Securities Act, any state securities or
"blue-sky" laws or any rule or regulation thereunder in connection with such
registration, except insofar as the same may have been caused by an untrue
statement or omission based upon information furnished in writing to the
Corporation by such underwriter, Holder, or controlling person, respectively,
expressly for use therein, and (b) with respect to such untrue statement or
omission in the information furnished in writing to the Corporation by such
Holder, such Holder will indemnify the underwriters, the Corporation, its
directors and officers, the other Holders and each person controlling any of
them against any losses, claims, damages, expenses (including legal or other
expenses) or liabilities to which any of them may become subject to the same
extent.
Section 3.7 RULE 144 REQUIREMENTS. The Corporation will use its best
efforts to file with the Commission such information as the Commission may
require under the reporting requirements of either Section 13 or Section 15(d)
of the Securities Exchange Act of 1934, as amended, and in such event, the
Corporation shall use its best efforts to take all action as may be required as
a condition to the availability of Rule 144 under the Securities Act (or any
successor exemptive rule hereafter in effect). The Corporation shall furnish to
any Holder of Registrable Securities upon request a written statement executed
by the Corporation as to the steps it has taken to comply with the current
public information requirement of Rule 144 or such successor rule.
Section 3.8 AMENDMENT OR WAIVER OF REGISTRATION RIGHTS. The registration
rights provided for in this Article 3 may not be waived otherwise than by a
written instrument signed by the party so waiving such rights; PROVIDED,
HOWEVER, that changes in or additions to, and any consents required by this
Article 3 may be made, and compliance with any term, covenant, condition or
provision set forth in this Article 3 may be omitted or waived (either generally
or in a particular instance and either retroactively or prospectively) by a
consent or consents in writing signed by Holders holding a majority in interest
of the Registrable Securities held by the Holders and (in the case of any such
waiver, change or addition) the Corporation. Any amendment or waiver effected in
accordance with this Section 3.8 shall be binding upon each Holder of
Registrable Securities, each transferee of a Holder under Section 3.9 and the
Corporation.
Section 3.9 TRANSFER OF RIGHTS; TERMINATION.
(a) The rights granted to Trans Union under this Agreement may be
transferred by a Holder (a) to any affiliate of a Holder or to any person or
entity acquiring Registrable Securities representing ownership of, or the right
to acquire, at least 100,000 shares of Common Stock (as adjusted for stock
splits, stock dividends, recapitalizations or similar events), or (b) to a
shareholder or partner of a Holder who receives Registrable Securities as a
distribution from such Holder. Each such transferee shall be deemed to be a
"Holder" for purposes of this Article 3.
(b) Any transferee (other than a stockholder who is already a party to an
agreement in form and substance similar to this Agreement) to whom rights under
this Agreement are transferred shall, as a condition to such transfer, deliver
to the Corporation a written instrument by which such transferee identifies
itself, gives the Corporation notice of the transfer of such rights, indicates
the Registrable Securities owned by it and agrees to be bound by the obligations
imposed upon Trans Union under this Agreement.
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(c) A transferee to whom rights are transferred pursuant to this Section
3.9 may not again transfer such rights to any other person or entity, other than
as provided in this Section 3.9.
ARTICLE 4.
MISCELLANEOUS
Section 4.1 SUCCEEDING SECURITIES. In the event the Common Stock of the
Corporation covered by this Agreement is converted into any other security of
the Corporation or any other corporation, the terms of this Agreement shall
apply with full force and effect to any such other security and the obligations
of the Corporation to effect registration rights shall include such other
filings, qualifications, notices and similar acts as may be necessary to enable
the Holder to realize the benefits of registration rights provided by this
Agreement.
Section 4.2 WAIVERS; MODIFICATIONS IN WRITING. No failure or delay on the
part of Trans Union, or any holder of rights under this Agreement, in exercising
any right, power, or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any other right, power
or remedy. No amendment, modification, supplement, terminations consent or
waiver of or to any provision of this Agreement, nor consent to any departure
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Trans Union and the Corporation. Any waiver of any provision of
this Agreement, and any consent to any departure by the Corporation from the
terms of any provisions of this Agreement, shall be effective only in the
specific instance and for the specific purpose for which given. No notice to or
demand on the Corporation in any case shall entitle the Corporation to any other
or further notice or demand in similar or other circumstances.
Section 4.3 NOTICES, ETC. All notices, demands, instructions and other
communications required or permitted to be given to or made upon any party
hereto shall be in writing delivered to the parties at the addresses set forth
below (or such other address as may be provided by one party in a notice to the
other):
If to Trans Union:
Trans Union LLC
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
PRIMIS, Inc.
00000 Xxxxx Xxxx Xxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Chief Legal Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Notice delivered in accordance with the foregoing shall be effective (i) when
delivered, if delivered personally, by facsimile transmission (with receipt
confirmed electronically) or by courier or overnight delivery service which
regularly provides such service and regularly obtains executed receipts
evidencing delivery or (ii) three (3) days after being deposited in the United
States mail, certified or registered mail, return receipt requested and postage
prepaid.
Section 4.4 BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective successors and assigns of
the parties hereto.
Section 4.5 HEADINGS. Article and Section headings used in this Agreement
are for convenience of reference only and shall not constitute a part of this
Agreement for any purpose or affect the construction of this Agreement.
Section 4.6 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by different parties on separate counterparts,
each of which counterparts, when so executed and delivered, shall be deemed to
be an original and all of which counterparts, taken together, shall constitute
one and the same Agreement. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto.
Section 4.7 GOVERNING LAW. The validity of this Agreement, the
construction, interpretation, and enforcement thereof, and the rights of the
parties thereto shall be determined under, governed by, and construed in
accordance with the internal laws of the State of Georgia, without regard to
principles of conflicts of law.
Section 4.8 WAIVER OF JURY TRIAL. The Corporation hereby waives all right
to trial by jury in any action, proceeding or counterclaim arising out of or
relating to this Agreement, or any other agreement or instrument contemplated
hereby.
Section 4.9 SPECIFIC PERFORMANCE. Trans Union and each other Holder shall
have the right to specific performance by the Corporation of the provisions of
this Agreement. The Corporation hereby irrevocably waives, to the extent that it
may do so under applicable law, any defense based on the adequacy of a remedy at
law which may be asserted as a bar to the remedy of specific performance in any
action brought against the Corporation for specific performance of this
Agreement by Trans Union or any other Holder.
Section 4.10 SEVERABILITY OF PROVISIONS. Whenever possible this Agreement
and each provision hereof shall be interpreted in such manner as to be
effective, valid and enforceable under applicable law. If and to the extent that
any such provision shall be held invalid and unenforceable by any court of
competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provisions hereof, and any determination that the
application of any provision hereof to any person or under any circumstance is
illegal and unenforceable shall not affect the legality, validity and
enforceability of such provision as it may be applied to any other person or in
any other circumstance.
Section 4.11 SURVIVAL OF AGREEMENTS, REPRESENTATIONS AND WARRANTIES. All
agreements, representations and warranties made herein shall survive the
execution and delivery of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first hereinabove set forth.
PRIMIS, INC.
By:
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Name:
Title:
TRANS UNION LLC
By:
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Name:
Title:
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SCHEDULE I
Authorized, Issued and Outstanding Shares of
Capital Stock of PRIMIS, INC.
as of March 24, 2000(1)
AUTHORIZED SHARES:
Common shares 100,000,000
Preferred shares 8,000 000
ISSUED SHARES:
Common shares 14,420,401
Preferred shares(2)
Series A 1,091,242
Series B 725,130
STOCK OPTIONS: 3,408,559
WARRANTS: 851,058
CONVERTIBLE DEBT(3): $19,733,036
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(1) Adjusted for a 1.8622-for-1 stock split to be effected as a stock
dividend concurrently with PRIMIS, Inc.'s initial public offering.
(2) Convertible into an aggregate of 3,411,574 shares of Common Stock based
on aggregate stated values and accrued dividends as of February 29, 2000.
(3) Convertible into an aggregate of 2,435,624 shares of Common Stock based
on principal amount and accrued interest as of February 29, 2000.
