SPS COMMERCE, INC. REGISTRATION RIGHTS AGREEMENT (Amended and Restated April 10, 2007)
TABLE OF CONTENTS
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Section 1. Definitions |
1 | |||
Section 2. Securities Subject to this Agreement |
3 | |||
Section 3. Demand Registration |
3 | |||
Section 4. Piggyback Registrations |
4 | |||
Section 5. Restrictions on Public Sale by the Company and Others |
6 | |||
Section 6. Registration Procedures |
6 | |||
Section 7. Registration Expenses |
9 | |||
Section 8. Indemnification |
9 | |||
Section 9. Rule 144 and Rule 144A; Company Obligations |
10 | |||
Section 10. Participation in Underwritten Registrations |
11 | |||
Section 11. Miscellaneous |
11 | |||
Exhibit A Investors |
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Exhibit B Notice of Adoption |
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| SPS Registration Rights Agreement [Amended and Restated April 2007] | Page i |
SPS COMMERCE, INC.
REGISTRATION RIGHTS AGREEMENT
(Amended and Restated April 10, 2007)
(Amended and Restated April 10, 2007)
This Amended and Restated Registration Rights Agreement (“Agreement”) is entered into as of
April 10, 2007 (the “Effective Date”), by and among SPS Commerce, Inc., a Delaware corporation (the
“Company”), the investors listed on Exhibit A (each an “Investor”) and the stockholders on
Exhibit A (each a “Stockholder”).
Preliminary Statements
A. On the Effective Date the Company filed a Fifth Amended and Restated Certificate
of Incorporation authorizing shares of Series A Convertible Preferred Stock, $.001 par value
(“Series A Preferred Stock”), Series B Convertible Preferred Stock, $.001 par value (“Series B
Preferred Stock”), and Series C Convertible Preferred Stock, $.001 par value (“Series C Preferred
Stock,” and collectively with the Series A Preferred Stock and Series B Preferred Stock, the
“Preferred Stock”).
B. Pursuant to the terms and conditions of that certain Series C Convertible Preferred Stock
Purchase Agreement, by and among the Company and certain of the Investors, dated as of the date
hereof (the “Stock Purchase Agreement”), such Investors purchased Series C Preferred Stock.
C. Certain of the Investors and the Company are parties to that certain Fourth Amended and
Restated Registration Rights Agreement, dated as of May 16, 2003, as amended (the “2003
Registration Rights Agreement”), that provides for certain registration rights as set forth
therein.
D. It is a condition to the closing of the transactions contemplated by the Stock Purchase
Agreement that the parties enter into this Agreement, and that this Agreement will amend, supersede
and restate in its entirety the 2003 Registration Rights Agreement.
E. The 2003 Registration Rights Agreement may be amended only by a written agreement executed
by the Company and the holders of at least 66.67% of the issued and outstanding Series A Preferred
Stock and the holders of at least 66.67% of the issued and outstanding Series B Preferred Stock.
F. The Company, the holders of at least 66.67% of the issued and outstanding Series A
Preferred Stock, and the holders of 66.67% of the issued and outstanding Series B Preferred Stock
desire to amend and restate the 2003 Registration Rights Agreement to provide such contractual
rights to the Series C Preferred Stock as set forth herein.
Terms and Conditions
In consideration of the mutual covenants and agreements contained in this Agreement and the
Stock Purchase Agreement, and intending to be legally bound, the parties hereto agree as follows:
Section 1. Definitions. As used in this Agreement, and in addition to other terms
defined herein, the following terms have the meanings indicated below or in the referenced sections
of this Agreement:
“2003 Purchase Agreement” means the Series B Convertible Preferred Stock Purchase Agreement,
by and among the Company and the purchasers listed therein, dated as of May 16, 2003, as from time
to time amended in accordance with the provisions thereof.
“2006 Purchase Agreement” means the Series B Convertible Preferred Stock Purchase Agreement,
by and among the Company and the purchasers listed therein, dated as of February 21, 2006, as from
time to time amended in accordance with the provisions thereof.
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“Business Day” means any day other than a Saturday, Sunday or public holiday or the equivalent
for banks under the laws of the States of Minnesota or Indiana.
“Common Stock” means the Company’s common stock, $.001 par value per share, as the same may be
constituted from time to time.
“Demand Registration” has the meaning set forth in Section 3(a).
“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 the same may be in effect at
the time.
“Exchange Agreement” means the Preferred Stock Exchange Agreement, by and among the Company
and the investors listed therein, dated as of May 16, 2003, as from time to time amended in
accordance with the provisions thereof.
“Initial Public Offering” means the first primary offering of Common Stock to the public by
the Company registered pursuant to the Securities Act.
“Majority of the Registrable Securities” means 51% or more of the Registrable Securities being
registered, unless the text of this Agreement indicates that it is 51% or more of the Registrable
Securities then issued and outstanding.
“Person” means an individual, a partnership, a corporation, a limited liability company, an
association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a
government entity or any department, agency, or political subdivision thereof.
“Piggyback Registration” has the meaning set forth in Section 4(a).
“Preferred Stock” means the Company’s Series A Preferred Stock, Series B Preferred Stock and
Series C Preferred Stock.
“Pro rata basis” means with respect to each Investor (or Stockholder if applicable) the ratio
determined by dividing (i) the number of Registrable Securities (on an as-if-converted to Common
Stock basis) then held by such Investor (or Stockholder if applicable) by (ii) the aggregate number
of outstanding Registrable Securities (on an as-if-converted to Common Stock basis).
“Registrable Securities” means (a) the Common Stock issued or issuable upon conversion of the
Preferred Stock acquired by the Investors pursuant to the Exchange Agreement, the 2003 Purchase
Agreement, the 2006 Purchase Agreement and the Stock Purchase Agreement; (b) any Common Stock
issued as (or issuable upon the conversion or exercise of any warrant, right, or other security
that is issued as) a dividend or other distribution with respect to, or in exchange for, or in
replacement of, the Preferred Stock; (c) any other shares of Common Stock that the Investors have
the right to acquire or do acquire upon conversion of shares of Preferred Stock or other equity or
debt securities of the Company issued or acquired pursuant to any current or future agreement
between or among any of the Investors and the Company or any current stockholder of the Company;
(d) any shares of Common Stock otherwise acquired by the Investors; and (e) the shares of Common
Stock held by the Stockholders as of the date of this Agreement (including shares of Common Stock
issuable upon the conversion or exercise of any warrant, right, or option currently held by any
Stockholder), but as to the shares subject to this phrase (e), only in connection with the
Piggyback Registration rights provided for in Section 4, and any other rights or obligations of the
Stockholders provided herein to effectuate Stockholders’ rights under Section 4.
“Registration Expenses” has the meaning set forth in Section 7.
“SEC” means the United States Securities and Exchange Commission (or any other federal agency
at that time administering the Securities Act).
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“Securities Act” means the Securities Act of 1933, as amended, or any similar federal statute,
and the rules and regulations of the SEC thereunder, all as the same may be in effect at the time.
“Underwritten registration” or “underwritten offering” means a registration in which
securities of the Company are sold pursuant to a firm commitment underwriting.
Section 2. Securities Subject to this Agreement.
(a) Registrable Securities. The securities entitled to the benefits of this Agreement
are Registrable Securities. A Registrable Security ceases to be entitled to the benefits of this
Agreement when it is registered under the Securities Act and disposed of in accordance with the
registration statement covering it.
(b) Holders of Registrable Securities. A Person is deemed to be a holder of
Registrable Securities whenever that Person owns, directly or beneficially, or has the right to
acquire Registrable Securities, disregarding any legal restrictions upon the exercise of that
right.
Section 3. Demand Registration.
(a) Requests for Registration. At any time after the completion of an Initial Public
Offering, the holders of the Registrable Securities may demand that the Company register all or
part of their Registrable Securities under the Securities Act (a “Demand Registration”) on Forms
S-1 or S-3 (or similar forms then in effect) promulgated by the SEC under the Securities Act.
Within ten days after receipt of a demand, the Company will notify in writing all holders of
Registrable Securities of the demand. Any holder who wants to include his, her or its Registrable
Securities in the Demand Registration must notify the Company within ten Business Days of receiving
the notice of the Demand Registration. Except as provided in this Section 3, the Company will
include in all Demand Registrations all Registrable Securities for which the Company receives
timely written demands for inclusion. All demands made pursuant to this Section 3(a) must specify
the number of Registrable Securities to be registered (that may not be less than 20% in the
aggregate of the then outstanding Registrable Securities on a fully diluted basis, including
Registrable Securities issued upon conversion of the then-outstanding Preferred Stock) and the
intended method of disposing of the Registrable Securities.
(b) Number of Demand Registrations. The Company is obligated to effect up to four
Demand Registrations pursuant to this Section 3, including two that may be Demand Registrations on
Form S-1 (or any successor form).
(c) Form of Registration. The Demand Registration will be on Form S-3 whenever the
Company is permitted to use the form, unless the holders of a Majority of the Registrable
Securities or the underwriter reasonably request registration on an expanded form; provided,
however, that no more than two Demand Registrations will be on Form S-1. The Company will use its
reasonable best efforts to qualify for registration on Form S-3.
(d) Registration Expenses. The Company will pay all Registration Expenses for the
Demand Registrations. A registration initiated as a Demand Registration for which the Company pays
the Registration Expenses will not count (i) toward the limit on Demand Registrations set forth in
Section 3(b) or (ii) for the purposes of the first sentence of this Section 3(d) until it becomes
effective and at least 50% of all of the Registrable Securities included in that registration have
actually been sold.
(e) Selection of Underwriters. The holders of a majority of the Registrable
Securities requested to be included in a Demand Registration may select the investment banker(s)
and manager(s) that will administer the offering, as long as the investment banker(s) and the
manager(s) are reasonably satisfactory to the Company. The Company will enter into a customary
underwriting agreement with those investment banker(s) and manager(s).
(f) Priority on Demand Registrations. If the managing underwriters give the Company
and the holders of the Registrable Securities being registered a written opinion that the number
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of
Registrable Securities requested to be included exceeds the number of securities that can be sold,
the Company will include in the registration only the number of Registrable Securities that the
underwriters believe can be sold. The number of securities registered will be allocated on a pro
rata basis among the holders of Registrable Securities on the basis of the total number of
Registrable Securities requested to be included in the registration.
(g) Delay in Filing. The Company may delay the filing of the registration statement
in connection with a Demand Registration for a period of not more than 120 calendar days upon the
advice of the investment banker(s) and manager(s) that will administer the offering that a delay is
necessary or appropriate under the circumstances to prevent a material adverse effect on the
Company. The Company may not use this right to delay more than once during the term of this
Agreement.
(h) Limited Piggyback Right on Demand Registrations.
(i) Whenever the holders of Registrable Securities demand a Demand Registration, the Company
may notify in writing the other holders of securities of the same type as the Registrable
Securities that are to be registered not later than the earlier to occur of (A) the fifth Business
Day following the Company’s receipt of notice of exercise of the Demand Registration right or (B)
45 calendar days prior to the anticipated filing date.
(ii) The Company may include in the Demand Registration securities of the same type and class
to be sold for its own account or held by other holders, but only to the extent that the managing
underwriters give the Company their written opinion that the total number or dollar amount of
securities requested to be included can be sold. If the number or dollar amount of securities
requested to be sold exceeds the amount that in the opinion of the managing underwriters can be
sold, the Company will include in the registration: (A) first, up to all Registrable Securities
(allocated on a pro rata basis among the holders of Registrable Securities on the basis of the
total number of Registrable Securities requested to be included in the registration), (B) second,
up to the full number or dollar amount of securities requested to be included for the account of
the Company, and (C) third, up to the full number or dollar amount of securities requested to be
included in the registration in excess of the number or dollar amount of Registrable Securities to
be registered (allocated on a pro rata basis among the holders of the securities in such
proportions as the Company and those holders may agree).
(iii) The holders of securities (including the Company) other than Registrable Securities to
be registered pursuant to this Section 3(h) will enter into the same agreement with the managing
underwriters as do the holders of the Registrable Securities.
(iv) If the Company registers any of its securities on its own behalf in a Demand Registration
(in accordance with the provisions of this Section 3(h)), that Demand Registration will not count
(i) toward the limit on Demand Registrations set forth in Section 3(b) or (ii) for the purpose of
determining the number of Demand Registrations for which the Company is required under Section 3(h)
to pay all Registration Expenses, and the Company will pay all of the Registration Expenses of that
registration.
(v) If any of the holders of any other securities of the Company register those securities in
a Demand Registration in accordance with this Section 3(h), those holders will pay the fees and
expenses of their counsel and their share on a pro rata basis of the Registration Expenses not paid
by the Company for any reason.
Section 4. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any of its
securities under the Securities Act (except for the registration of securities to be offered
pursuant to an employee benefit plan on Form S-8 or pursuant to a registration made on Form S-4, or any successor
forms then in effect) at any time other than pursuant to a Demand Registration and the registration
form to
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be used may be used for the registration of the Registrable Securities (a “Piggyback
Registration”), it will so notify in writing all holders of Registrable Securities not later than
the earlier to occur of (i) the fifth Business Day following the Company’s receipt of notice of
exercise of other demand registration rights, or (ii) 30 calendar days prior to the anticipated
filing date. Subject to the provisions of Sections 4(c) and (d), the Company will include in the
Piggyback Registration all Registrable Securities with respect to which the Company has received
written requests for inclusion within 15 Business Days after the applicable holder’s receipt of the
Company’s notice. The holders of Registrable Securities may withdraw all or any part of the
Registrable Securities from a Piggyback Registration at any time before five Business Days prior to
the effective date of the Piggyback Registration. If a Piggyback Registration is an underwritten
offering effected under Section 4(c), all Persons whose securities are included in the Piggyback
Registration must sell their securities on the same terms and conditions as apply to the securities
being issued and sold by the Company. If a Piggyback Registration is an underwritten offering
effected under Section 4(d), all Persons whose securities are included in the Piggyback
Registration must sell their securities on the same terms and conditions as apply to the securities
being sold by the Person(s) initiating the Piggyback Registration. A registration of Registrable
Securities pursuant to this Section 4 will not be counted as a Demand Registration under Section 3.
(b) Piggyback Expenses. The Company will pay all Registration Expenses in connection
with each Piggyback Registration.
(c) Priority on Primary Registrations. If a Piggyback Registration is an underwritten
primary registration on behalf of the Company and the managing underwriters give the Company their
written opinion that the total number or dollar amount of securities requested to be included in
the registration exceeds the number or dollar amount of securities that can be sold, the Company
will include the securities in the registration in the following order of priority: (i) first, all
securities the Company proposes to sell; (ii) second, up to the full number or dollar amount of
Registrable Securities requested to be included in the registration (allocated on a pro rata basis
among the holders of Registrable Securities on the basis of the dollar amount or number of
Registrable Securities requested to be included); and (iii) third, any other securities (provided
they are of the same class as the securities sold by the Company) requested to be included,
allocated among the holders of securities in such proportions as the Company and those holders may
agree.
(d) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Company’s securities, and the
managing underwriters give the Company their written opinion that the dollar amount or number of
securities requested to be included in the registration exceeds the dollar amount or number of
securities that can be sold, the Company will include in the registration: (i) to the extent of
50% of the number or dollar amount of securities other than Registrable Securities that in the
underwriter’s opinion can be sold, the securities requested to be included in the registration,
allocated among the holders of those securities in such proportions as the Company and those
holders may agree, and (ii) to the extent of the balance, the Registrable Securities requested to
be included, allocated on a pro rata basis among the holders of Registrable Securities on the basis
of the dollar amount or number of securities requested to be included. If after including all of
the Registrable Securities the underwriters determine that there are additional securities that can
be sold, then securities other than the foregoing may be added to the registration.
(e) Selection of Underwriters. If any Piggyback Registration is an underwritten
offering, the Company will select the investment banker(s) and manager(s) that will administer the
offering, as long as the investment banker(s) and manager(s) are reasonably satisfactory to the
holders of a Majority of the Registrable Securities. The Company and the holders of Registrable
Securities participating in the offering will enter into a customary underwriting agreement with
the investment banker(s) and manager(s).
| SPS Registration Rights Agreement [Amended and Restated April 2007] | Page 5 |
(f) Other Registrations. The Company agrees that after filing a registration
statement with respect to Registrable Securities pursuant to Section 3 or this Section 4 that has
not been withdrawn or abandoned, the Company will not register any of its equity securities or
securities convertible or exchangeable into or exercisable for its equity securities under the
Securities Act, whether on its own behalf or at the request of any holder of those securities,
until at least three months has elapsed from the effective date of the previous registration. This
three-month hiatus does not apply to registrations of securities to be issued in connection with
employee benefit plans, to permit exercise or conversions of previously issued options, warrants,
or other convertible securities, or in connection with a Demand Registration.
Section 5. Restrictions on Public Sale by the Company and Others. The Company agrees
not to make any public sale or distribution of its equity securities, or any securities convertible
into or exchangeable or exercisable for its equity securities, including a sale under Regulation D
of the Securities Act or under any other exemption of the Securities Act (except as part of the
underwritten registration or pursuant to registrations on Form S-8 or any successor form), during
the seven days prior to and the 90 days after the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration unless the managing underwriters agree
otherwise. The Company also agrees to use its reasonable best efforts to cause each holder of at
least 5% (on a fully diluted basis) of its equity securities or any securities convertible into or
exchangeable or exercisable for at least 5% (on a fully diluted basis) of its equity securities
(other than Registrable Securities), purchased from the Company at any time on or after the date of
this Agreement (other than in a registered public offering) to agree not to make any public sale or
distribution of those securities, including a sale pursuant to Rule 144 of the Securities Act
(except as part of the underwritten registration, if permitted), during the seven days prior to and
the 90 days after the effective date of the registration unless the managing underwriters agree
otherwise.
Section 6. Registration Procedures.
(a) Best Efforts. Whenever the holders of Registrable Securities request the
registration of any Registrable Securities pursuant to this Agreement, the Company will use its
reasonable best efforts to register and to permit the sale of the Registrable Securities in
accordance with the intended method of disposition. To carry out this obligation, the Company will
as expeditiously as possible:
(i) prepare and file with the SEC, but in any event no later than 90 calendar
days after receipt of a request to file a registration statement (subject to Section
3(g)), a registration statement on the appropriate form and use its best efforts to
cause the registration statement to become effective. At least two Business Days
before filing a registration statement or prospectus or any amendments or
supplements thereto that covers Registrable Securities, the Company will furnish to
the counsel of the holders of a Majority of the Registrable Securities being
registered copies of all documents proposed to be filed for that counsel’s review
and approval, which approval will not be unreasonably withheld or delayed;
(ii) notify immediately each seller of Registrable Securities of any stop order
threatened or issued by the SEC and take all actions reasonably required to prevent
the entry of a stop order or if entered to have it rescinded or otherwise removed;
(iii) prepare and file with the SEC such amendments and supplements to the
registration statement and the corresponding prospectus necessary to keep the
registration statement effective for 180 days or such shorter period as may be
required to sell all Registrable Securities covered by the registration statement;
and comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by the registration statement during each period in
accordance with the sellers’ intended methods of disposition as set forth in the
registration statement;
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(iv) furnish to each seller of Registrable Securities a sufficient number of
copies of the registration statement, each amendment and supplement thereto (in each
case including all exhibits), the corresponding prospectus (including each
preliminary prospectus), and such other documents as seller may reasonably request
to facilitate the disposition of the seller’s Registrable Securities;
(v) use its best efforts to register or qualify the Registrable Securities
under securities or blue sky laws of jurisdictions in the United States of America
as any seller requests and will do any and all other acts and things that may be
necessary or advisable to enable the seller to consummate the disposition of the
seller’s Registrable Securities;
(vi) use its best efforts to cause the Registrable Securities covered by the
registration statement to be registered with or approved by those governmental
agencies or authorities necessary to enable each seller to consummate the
disposition of its Registrable Securities;
(vii) notify each seller of Registrable Securities, at any time when a
prospectus is required to be delivered under the Securities Act, of any event as a
result of which the prospectus or any document incorporated therein by reference
contains an untrue statement of a material fact or omits to state any material fact
necessary to make the statements therein not misleading, and will prepare a
supplement or amendment to the prospectus or any such document incorporated therein
by reference so that thereafter the prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(viii) cause all registered Registrable Securities to be listed on each
securities exchange, if any, on which similar securities issued by the Company are
then listed;
(ix) provide an institutional transfer agent and registrar and a CUSIP number
for all Registrable Securities on or before the effective date of the registration
statement;
(x) enter into such customary agreements (including an underwriting agreement
in customary form) and take all other actions in connection with those agreements as
the holders of the Registrable Securities being registered or the underwriters, if
any, request to expedite or facilitate the disposition of the Registrable
Securities;
(xi) make available for inspection by any seller of Registrable Securities, any
underwriter participating in any disposition pursuant to the registration statement,
and any attorney, accountant, or other agent of any seller or underwriter, all
financial and other records, pertinent corporate documents, and properties of the
Company, and cause the Company’s officers, directors, and employees to supply all
information requested by any seller, underwriter, attorney, accountant, or agent in
connection with the registration statement; provided that an appropriate
confidentiality agreement is executed by any seller, underwriter, attorney,
accountant, or other agent;
(xii) in connection with any underwritten offering, obtain a “cold comfort”
letter from the Company’s independent public accountants in customary form and
covering those matters customarily covered by “cold comfort” letters as the holders
of the Registrable Securities being registered or the managing underwriters request
(and the letter will be addressed to holders of the Registrable Securities);
(xiii) furnish, at the request of any holder of Registrable Securities being
registered, an opinion of the counsel representing the Company for the purposes of
the registration, in the form and substance customarily given to underwriters in an
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underwritten public offering and satisfactory to the counsel representing the
holders of Registrable Securities being registered, addressed to the underwriters,
if any, and to the holders of Registrable Securities being registered; and
(xiv) use its best efforts to comply with all applicable rules and regulations
of the SEC, and make available to its security holders, as soon as practicable, an
earnings statement complying with the provisions of Section 11(a) of the Securities
Act and covering the period of at least 12 months, but not more than 18 months,
beginning with the first month after the effective date of the Registration
Statement.
(b) Distribution of Securities. From time to time, the Company may require each
seller of Registrable Securities subject to the registration to furnish to the Company information
regarding the distribution of the securities subject to the registration.
(c) Prospectus. Each holder of Registrable Securities agrees by acquisition of those
securities that, upon receipt of any notice from the Company of any event of the kind described in
Section 6(a)(vii), the holder will discontinue disposition of Registrable Securities until the
holder receives copies of the supplemented or amended prospectus contemplated by Section 6(a)(vii).
In addition, if the Company requests, the holder will deliver to the Company (at the Company’s
expense) all copies, other than permanent file copies then in the holder’s possession, of the
current prospectus covering the Registrable Securities at the time of receipt of the notice. If
the Company gives any such notice, the time period mentioned in Section 6(a)(iii) will be extended
by the number of days elapsing between the date of notice and the date that each seller receives
the copies of the supplemented or amended prospectus contemplated by Section 6(a)(iii).
(d) Duty to Provide Information. Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this Agreement, those holders
will notify the Company, at any time when a prospectus relating thereto is required to be delivered
under the Securities Act, of the happening of any event that as to any holder of Registrable
Securities is (i) to its respective knowledge, and (ii) uniquely within its respective knowledge,
and (iii) solely as to matters concerning that holder of the Registrable Securities, as a result of
which the prospectus included in the registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the statements therein not misleading.
(e) “Market Stand-Off” Agreement. Each Investor hereby agrees that during a period
not to exceed 180 days and to the extent specified by the Company and an underwriter of Common
Stock or other securities of the Company in connection with any Initial Public Offering of the
Common Stock of the Company, following the effective date of a registration statement of the
Company filed under the Securities Act, it will not, directly or indirectly, sell, offer to sell,
contract to sell (including, without limitation, any short sale), grant any option to purchase, or
otherwise transfer or dispose of (other than to donees who agree to be similarly bound) any
securities of the Company held by it at any time during that period, except Common Stock included
in the registration. Notwithstanding the foregoing:
(i) the agreement provided by this Section will apply only to the first
registration statement of the Company that covers Common Stock (or other securities)
to be sold on its behalf to the public in an underwritten offering; and
(ii) this Section will not be effective unless all officers and directors of
the Company, each holder of greater than 1% of the Company’s Common Stock (on a
fully converted basis), and all other Persons with registration rights (whether or
not pursuant to this Agreement) enter into similar agreements.
In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions
with respect to the securities (assuming exercise of all outstanding options, warrants, and
convertible
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securities) of the Company held by each Investor (and the shares or securities of every other
Person subject to the foregoing restriction) until the end of that period.
Section 7. Registration Expenses.
(a) Defined. All Registration Expenses incident to the Company’s performance of or
compliance with this Agreement will be paid as provided in this Agreement. The term “Registration
Expenses” means all expenses incurred in connection with any registration, filing, or qualification
of Registrable Securities pursuant to this Agreement, including (without limitation) all
registration filing fees, professional fees, and other expenses of compliance with federal, state,
and other securities laws (including fees and disbursements of counsel for the underwriters in
connection with state or other securities law qualifications and registrations); printing expenses,
messenger, telephone, and delivery expenses; fees and disbursements of counsel for the Company and
for the sellers of the Registrable Securities (subject to the provisions of Section 7(b)); and fees
and disbursements of all independent certified public accountants (including the expenses of any
audit or “cold comfort” letters required by or incident to performance of the obligations
contemplated by this Agreement).
(b) Legal Fees and Expenses. In connection with each registration for which the
Company is required to pay the Registration Expenses of the holders of Registrable Securities, the
Company will directly pay the reasonable fees and disbursements of one law firm, selected by the
holders of a Majority of the Registrable Securities participating in such registration, to serve as
counsel to all the holders.
(c) Expenses Not Covered. To the extent the Company is not required to pay
Registration Expenses, each holder of securities included in any registration will pay those
Registration Expenses allocable to the holders of securities so included, and any Registration
Expenses not allocable will be borne by all sellers in proportion to the number of securities each
registers.
Section 8. Indemnification.
(a) Indemnification by Company. To the full extent permitted by law, the Company
agrees to indemnify each holder of Registrable Securities, its officers and directors, and each
Person who controls the holder (within the meaning of the Securities Act and the Exchange Act)
against all losses, claims, damages, liabilities, and expenses caused by any untrue or allegedly
untrue statement of material fact contained in any registration statement, prospectus, or
preliminary prospectus or any omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or any violation by the
Company of the Securities Act or any rule or regulation thereunder applicable to the Company and
relating to the action or inaction of the Company in connection with any registration,
qualification or compliance, except to the extent the untrue statement or omission resulted from
information that the holder furnished in writing to the Company expressly for use therein or by the
holder’s failure to deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto to any purchaser after the Company has furnished the holder with a sufficient
number of copies of the relevant documents. In connection with a firm or best efforts underwritten
offering, to the extent required by the managing underwriters, the Company will indemnify the
underwriters, their officers and directors, and each Person who controls the underwriters (within
the meaning of the Securities Act and the Exchange Act), to the extent customary in such
agreements.
(b) Indemnification by Holders of Securities. In connection with any registration
statement, each participating holder of Registrable Securities will furnish to the Company in
writing the information and affidavits that the Company reasonably requests for use in connection
with any registration statement or prospectus and each holder agrees to indemnify, to the extent
permitted by law, the Company, its directors and officers, and each Person who controls the Company
(within the meaning of the Securities Act and the Exchange Act) against any losses, claims,
liabilities and expenses resulting from any untrue or allegedly untrue statement of a material fact
or any omission or alleged omission
of a
of a
| SPS Registration Rights Agreement [Amended and Restated April 2007] | Page 9 |
material fact required to be stated in the registration statement or prospectus or any amendment
thereof or supplement thereto necessary to make the statements therein not misleading, but only to
the extent that the untrue statement or omission is contained in or omitted from any information or
affidavit the holder furnished in writing, or resulting from the holder’s failure to deliver a copy
of the registration statement or prospectus or any amendments or supplements thereto to any
purchaser after the Company has furnished the holder with a sufficient number of copies of the
relevant documents; provided, however, that the obligations of any holder of Registrable Securities
hereunder will be limited to an amount equal to the proceeds to such holder of the sale of
securities pursuant to the applicable registration statement as contemplated herein.
(c) Indemnification Proceedings. Any Person entitled to indemnification under this
Agreement will (i) give prompt notice to the indemnifying party of any claim with respect to which
it seeks indemnification, and (ii) unless in the indemnified party’s reasonable judgment a conflict
of interest may exist between the indemnified and indemnifying parties with respect to the claim,
permit the indemnifying party to assume the defense of the claim with counsel reasonably
satisfactory to the indemnified party. If the indemnifying party does not assume the defense, the
indemnifying party will not be liable for any settlement made without its consent (but that consent
may not be unreasonably withheld). No indemnifying party will consent to entry of any judgment or
will enter into any settlement that does not include as an unconditional term the claimant’s or
plaintiff’s release of the indemnified party from all liability concerning the claim or litigation.
An indemnifying party who is not entitled to or elects not to assume the defense of a claim will
not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified
by the indemnifying party with respect to the claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between the indemnified party and any other
indemnified party with respect to the claim, in which event the indemnifying party will be
obligated to pay the fees and expenses of additional counsel.
(d) Contribution to Joint Liability. In order to provide for just and equitable
contribution to joint liability under the Securities Act in any case in which either (i) any holder
of Registrable Securities exercising rights under this Agreement, or any controlling Person of any
such holder, makes a claim for indemnification pursuant to this Section 8 but it is judicially
determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal) that such indemnification
may not be enforced in such case notwithstanding the fact this Section 8 provides for
indemnification in such case, or (ii) contribution under the Securities Act may be required on the
part of any such selling holder or any such controlling Person in circumstances for which
indemnification is provided under this Section 8; then, and in each such case, the Company and such
holder will contribute to the aggregate losses, claims, damages or liabilities that they may be
subject to (after contribution to others) in such proportion so that such holder is responsible for
the portion represented by the percentage that the public offering price of its Registered
Securities offered by the registration statement bears to the public offering price of all
securities offered by such registration statement, and the Company is responsible for the remaining
portion; provided, however, that in any such case, (A) no such holder will be required to
contribute any amount in excess of the public offering price of all such Registered Securities
offered by it pursuant to such registration statement; and (B) no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any Person who was not guilty of such fraudulent misrepresentation.
Section 9. Rule 144 and Rule 144A; Company Obligations. If the Company files a
registration statement pursuant to the requirements of the Securities Act or Section 12 of the
Exchange Act, the Company covenants that it will file the reports required to be filed by it under
the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder
(or, if the Company is not required to file such reports, it will, upon the request of any holder
of Registrable
| SPS Registration Rights Agreement [Amended and Restated April 2007] | Page 10 |
Securities, make publicly available other information), and it will take such further action as any holder of Registrable Securities reasonably may request,
all to the extent required from time to time, to enable the holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the exemptions provided by
(i) Rule 144 under the Securities Act as amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any holder of Registrable Securities,
the Company will deliver to the holder a written statement as to whether it has complied with Rule
144 or any successor rule requirements. The Company also covenants that it will provide all such
information and it will take such further action as any holder of Registrable Securities reasonably
may request to enable the holder to sell Registrable Securities without registration under the
Securities Act within the limitation of Rule 144A under the Securities Act, as amended from time to
time, or any successor rule requirements.
Section 10. Participation in Underwritten Registrations. No Person may participate in
any underwritten registration without (a) agreeing to sell securities on the basis provided in
underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements
(the holders of the Registrable Securities in a Demand Registration pursuant to Section 3(d) and
the Company in a Piggyback Registration pursuant to Section 4(e)), and (b) completing and executing
all questionnaires, powers of attorneys, indemnities, underwriting agreements and other documents
required by the underwriting arrangements.
Section 11. Miscellaneous.
(a) Adjustments Affecting Securities. The Company will not take any action, or permit
any change to occur, with respect to the Registrable Securities that would affect adversely the
ability of the holders to include those securities in a registration undertaken pursuant to this
Agreement or the marketability of the Registrable Securities in any registration.
(b) Amendment. This Agreement may be amended or modified only by a written agreement
executed by the Company and the holders of (i) at least 66.67% of the then issued and outstanding
Series A Preferred Stock and (ii) the holders of at least 66.67% of the then issued and outstanding
Series B and Series C Preferred Stock (taken together as a single class on an as-if converted to
Common Stock basis).
(c) Attorneys’ Fees. In any legal action or proceeding brought to enforce any
provision of this Agreement, the prevailing party will be entitled to recover all reasonable
expenses, charges, court costs, and attorneys’ fees in addition to any other available remedy at
law or in equity.
(d) Benefit of Parties; Assignability. All of the terms and provisions of this
Agreement will be binding upon and inure to the benefit of the parties and their respective
successors and assigns, including without limitation all subsequent holders of securities entitled
to the benefits of this Agreement who agree in writing to become bound by the terms of this
Agreement; provided, however, the Company may not delegate its responsibilities or assign its
rights under this Agreement without the prior written consent of the holders of at least 66.67% of
the then issued and outstanding shares of Preferred Stock, voting separately as a series.
(e) Cooperation. The parties agree that after execution of this Agreement they will
from time to time, upon the request of any other party and without other consideration, execute,
acknowledge, and deliver in proper form any further instruments and take such other action as any
other party may reasonably require to carry out effectively the intent of this Agreement.
(f) Cumulative Remedies and Survival. The rights and remedies specified in this
Agreement will not be exclusive of any other right or remedy and are cumulative and in addition to
every other right or remedy now or hereafter existing at law or in equity or by statute or
otherwise that may be available to the Investors.
| SPS Registration Rights Agreement [Amended and Restated April 2007] | Page 11 |
(g) Counterparts. This Agreement may be executed by facsimile signature and
simultaneously in two or more counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
(h) Entire Agreement. This Agreement, the Stock Purchase Agreement, the 2006 Purchase
Agreement, the 2003 Purchase Agreement, the Exchange Agreement and the Amended and Restated Voting
and Co-Sale Agreement, dated of even date herewith among the Company, the Investors, and certain of
the Company’s other stockholders (“Voting and Co-Sale Agreement”) contain the entire understanding
of the parties with respect to the subject matter hereof and thereof. There are no
representations, promises, warranties, covenants, or undertakings other than those expressly set
forth or provided for herein and therein. This Agreement and the Voting and Co-Sale Agreement
supersede all prior agreements and understandings among the parties with respect to the
transactions contemplated herein and therein. Without limiting the foregoing, this Agreement
amends, supersedes and restates in its entirety the 2003 Registration Rights Agreement.
(i) Governing Law. The internal laws of the State of Delaware will govern all
questions concerning the relative rights of the Company and its stockholders. Delaware law also
will govern the interpretation, construction, and enforcement of this Agreement and all
transactions and agreements contemplated hereby, notwithstanding any state’s choice of law rules to
the contrary.
(j) Interpretation. The terms and conditions of this Agreement represent the results
of bargaining and negotiations among the parties, each of which has the opportunity to be
represented by counsel of its own selection, and none of which has acted under duress or
compulsion, whether legal, economic or otherwise, and represent the results of a combined
draftsmanship effort. Consequently, the terms and conditions hereof will be interpreted and
construed in accordance with their usual and customary meanings and the parties hereby expressly
waive and disclaim in connection with the interpretation and construction hereof any rule of law or
procedures requiring otherwise, specifically including but not limited to any rule of law to the
effect that ambiguous or conflicting terms or conditions contained herein will be interpreted or
construed against the party whose counsel prepared this Agreement or any earlier draft hereof.
(k) Listing. If the Common Stock is listed for trading on any national securities
exchange, that listing will include all of the Registrable Securities (to the extent permitted by
the rules of the exchange).
(l) No Inconsistent Agreements. Except with the prior written consent of the holders
of at least a majority of the then issued and outstanding shares of Series A Preferred Stock, the
holders of at least a majority of the then issued and outstanding shares of Series B Preferred
Stock, each considered separately as a series, and the holders of at least a majority of the then
issued and outstanding shares of Series B Preferred Stock and Series C Preferred Stock, voting
together as a class, the Company will not enter into any agreement with respect to its securities
that will grant to any Person registration rights that are senior to, are in conflict with, or will
interfere with the practical realization of the rights provided under this Agreement except as
disclosed on Schedule 3.2 to the Stock Purchase Agreement.
(m) Notices. All notices, requests, demands, or other communications that are
required or may be given pursuant to the terms of this Agreement will be in writing and delivery
will be deemed sufficient in all respects and to have been duly given on the date of service if
delivered personally by overnight courier or by facsimile transmission if receipt is confirmed to
the party to whom notice is to be given, or on the third day after mailing if mailed by first-class
mail, return receipt requested, postage prepaid, and properly addressed to the most recent
respective address set forth in the 2003 Purchase Agreement, the Exchange Agreement, the 2006
Purchase Agreement or the Stock Purchase Agreement or to such other addresses as the respective
parties hereto may from time to time designate to the others in writing.
| SPS Registration Rights Agreement [Amended and Restated April 2007] | Page 12 |
(n) Severability. Whenever possible, each provision of this Agreement will be
interpreted in such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be prohibited by or invalid under applicable law, that
provision will be ineffective only to the extent of the prohibition or invalidity, without
invalidating the remainder of this Agreement.
(o) Specific Performance. Each of the parties agrees that damages for a breach of or
default under this Agreement would be inadequate and that in addition to all other remedies
available at law or in equity the parties and their successors and assigns will be entitled to
specific performance or injunctive relief, or both, in the event of a breach or a threatened breach
of this Agreement.
(p) Table of Contents and Captions. The table of contents and captions of the
sections and subsections of this Agreement are solely for convenient reference and will not be
deemed to affect the meaning or interpretation of any provision of this Agreement.
(q) Waiver of Breach. Neither any waiver of any breach of, nor any failure to enforce
any term or condition of, this Agreement will operate as a waiver of any other breach of any term
or condition, nor constitute nor be deemed a waiver or release of any other rights, in law or at
equity, or claims that any party may have against any other party for anything arising out of,
connected with, or based upon this Agreement. No waiver will be enforceable against any party
hereto unless set forth in a written instrument or agreement signed by that party. No waiver will
be deemed to occur as a result of the failure of any party to enforce any term or condition of this
Agreement.
(r) Additional Parties. Upon approval by the Company’s board of directors, any holder
of the Company’s capital stock or rights, warrants, or options to purchase the Company’s capital
stock, may become a party to this Agreement as an “Investor.” A holder of the Company’s capital
stock or rights, warrants, or options to purchase the Company’s capital stock shall become a party
to this Agreement following approval of the Company’s board of directors upon such holder’s
execution and proper delivery to the Company of a Notice of Adoption in substantially the form
attached hereto as Exhibit B and Exhibit A to this Agreement shall be automatically
amended to add such holder.
[The remainder of this page is intentionally left blank — signature pages follow]
| SPS Registration Rights Agreement [Amended and Restated April 2007] | Page 13 |
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized representatives as of the date first written above.
| COMPANY: | SPS COMMERCE, INC. | |||||
| By: | /s/ Xxxxxx X. Black | |||||
| Chief Executive Officer | ||||||
| INVESTORS: | ABN AMRO CAPITAL (USA), INC. | |||||
| By: | ||||||
| Name: | ||||||
| Its: | ||||||
| THE XXXXXX XXXXX TRUST U/D/T 7/28/92 | ||||||
| By: | ||||||
| Xxxxxx Xxxxx | ||||||
| Trustee | ||||||
| ALLENWOOD VENTURES, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Its: | ||||||
| AXIOM VENTURE PARTNERS II LIMITED PARTNERSHIP | ||||||
| By: | /s/ Xxxx Xxxxxxxxx | |||||
| Xxxx Xxxxxxxxx | ||||||
| General Partner | ||||||
| /s/ Xxxxx X. Xxxxx | ||||||
| Xxxxx X. Xxxxx | ||||||
| SPS Registration Rights Agreement [Amended and Restated April 2007] | Page A-1 |
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized representatives as of the date first written above.
| BVCF IV, L.P. | ||||||
| By: | X.X. Xxxx Associates LLC, its General Partner | |||||
| By: | Xxxxxxx Venture Management LLC, its Attorney-in-Fact | |||||
| By: | Xxxxx Street Partners, LLC, as its Administrative | |||||
| Member | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Partner | ||||||
| CID EQUITY CAPITAL V, L.P. | ||||||
| By: | CID Equity Partners V, as General Partner | |||||
| By: | /s/ Xxxx X. Xxxxx | |||||
| Xxxx X. Xxxxx | ||||||
| General Partner | ||||||
| CID MEZZANINE CAPITAL, L.P. | ||||||
| By: | CID Mezzanine Partners, L.P., as General Partner | |||||
| By: | /s/ Xxxx X. Xxxxx | |||||
| Xxxx X. Xxxxx | ||||||
| General Partner | ||||||
| /s/ Xxxxx Xxxx Xxxx | ||||||
| Xxxxx Xxxx Xxxx | ||||||
| SPS Registration Rights Agreement [Amended and Restated April 2007] | Page 2 |
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized representatives as of the date first written above.
| DAMAC INVESTORS, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Its: | ||||||
| DAMAC TECHNOLOGY PARTNERS, L.P. | ||||||
| By: | ||||||
| Name: | ||||||
| Its: | ||||||
| GTG DAMAC PARTNERS, LP | ||||||
| By: | ||||||
| Name: | ||||||
| Its: | ||||||
| Xxxxxx Xxxxxxxxx | ||||||
| GRANITE PRIVATE EQUITY II, LLC | ||||||
| By: | ||||||
| Vice President | ||||||
| ML PARTNERS | ||||||
| By: | ||||||
| Name: | ||||||
| Its: | ||||||
| SPS Registration Rights Agreement [Amended and Restated April 2007] | Page 3 |
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized representatives as of the date first written above.
| PACIFIC CAPITAL VENTURES, LLC | ||||||
| By: | /s/ Xxx X. Xxxxxxxx | |||||
| Xxx X. Xxxxxxxx | ||||||
| Member | ||||||
| JAMIT LLC | ||||||
| By: | ||||||
| Xxx X. Xxxxxxxx | ||||||
| Member | ||||||
| PV SECURITIES CORP. | ||||||
| By: | ||||||
| Name: | ||||||
| Its: | ||||||
| XXXXXX X. XXXXXXXXX, TTEE FBO X.X. | ||||||
| XXXXXXXXX CARDIOVASCULAR MEDICAL | ||||||
| GROUP OF SOUTHERN CALIFORNIA 401K | ||||||
| PROFIT SHARING PLAN DTD 1/1/1989 | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||||
| Trustee | ||||||
| RIVER CITIES CAPITAL FUND II LIMITED PARTNERSHIP | ||||||
| By: Xxxxxx, Inc. | ||||||
| Its: General Partner | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Name: | Xxxxx X. Xxxxxxxx | |||||
| Its: | President | |||||
| SPS Registration Rights Agreement [Amended and Restated April 2007] | Page 4 |
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized representatives as of the date first written above.
| /s/ Xxxxxxx Xxxxxxxxx | ||||||
| Xxxxxxx Xxxxxxxxx | ||||||
| ST. XXXX VENTURE CAPITAL AFFILIATES FUND I, LLC |
||||||
| By: St. Xxxx Venture Capital, Inc. | ||||||
| Its: Manager | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Executive Vice President | ||||||
| ST. XXXX VENTURE CAPITAL IV, LLC | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Xxxxxxx X. Xxxxxx | ||||||
| Managing Member | ||||||
| ST. XXXX VENTURE CAPITAL V, LLC | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Xxxxxxx X. Xxxxxx | ||||||
| Managing Member | ||||||
| ST. XXXX VENTURE CAPITAL VI, LLC | ||||||
| By: SPVC Management VI, LLC | ||||||
| Its: Managing Member | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Xxxxxxx X. Xxxxxx | ||||||
| Managing Director | ||||||
| SPS Registration Rights Agreement [Amended and Restated April 2007] | Page 5 |
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized representatives as of the date first written above.
| XXXXXXX, XXXXXXX & COMPANY, L.P. | ||||||
| By: Xxxxxxx, Xxxxxxx L.L.C. | ||||||
| Its: General Partner | ||||||
| By: | ||||||
| Analyst | ||||||
| XXXXXXX, XXXXXXX & COMPANY Q.P., L.P. | ||||||
| By: Xxxxxxx, Xxxxxxx L.L.C. | ||||||
| Its: General Partner | ||||||
| By: | ||||||
| Xxxxxxx X. Xxxxxx | ||||||
| Analyst | ||||||
| TENX VENTURE PARTNERS, LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Its: | ||||||
| ZAFA LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Its: | ||||||
| RIVER CITIES SBIC III, L.P. | ||||||
| By: RCCF Management Inc. | ||||||
| Its: General Partner | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Name: | Xxxxx X. Xxxxxxxx | |||||
| Its: | President | |||||
| SPS Registration Rights Agreement [Amended and Restated April 2007] | Page 6 |
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized representatives as of the date first written above.
| SVOCO, L.P. | ||||||
| By: SvoCo, G.P. | ||||||
| Its: General Partner | ||||||
| By: SvoCo, Inc. | ||||||
| Its: Managing General Partner | ||||||
| By: | ||||||
| President | ||||||
| SPS Registration Rights Agreement [Amended and Restated April 2007] | Page 7 |
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized representatives as of the date first written above.
STOCKHOLDERS:
|
||||
| SPS Registration Rights Agreement [Amended and Restated April 2007] | Page A-8 |
EXHIBIT A
INVESTORS
Xxxxxx Xxxxx Trust U/D/T 7/28/92
Allenwood Ventures, Inc.
Axiom Venture Partners II Limited Partnership
Xxxxx Xxxxx
BVCF IV, LP
CID Equity Capital V, L.P.
CID Mezzanine Capital, L.P.
Xxxxx Xxxx Xxxx
Damac Investors, Inc.
Damac Technology Partners, LP
Xxxxxx Xxxxxxxxx
Granite Private Equity II, LLC
GTG Damac Partners, LP
JAMIT, LLC
Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxx, TTEE**
ML Partners
Pacific Capital Ventures, LLC
PV Securities Corp.
River Cities Capital Fund II Limited Partnership
River Cities SBIC III, L.P.
Xxxxxxx Xxxxxxxxxx
St. Xxxx Venture Capital Affiliates Fund I, L.L.C.
St. Xxxx Venture Capital IV, L.L.C.
St. Xxxx Venture Capital V, LLC
St. Xxxx Venture Capital VI, L.L.C.
Xxxxxxx, Xxxxxxx & Company Q.P., X.X.
Xxxxxxx, Xxxxxxx & Company, L.P.
TenX Venture Partners, LLC
ZAFA LLC
BlueCrest Strategic Limited
Allenwood Ventures, Inc.
Axiom Venture Partners II Limited Partnership
Xxxxx Xxxxx
BVCF IV, LP
CID Equity Capital V, L.P.
CID Mezzanine Capital, L.P.
Xxxxx Xxxx Xxxx
Damac Investors, Inc.
Damac Technology Partners, LP
Xxxxxx Xxxxxxxxx
Granite Private Equity II, LLC
GTG Damac Partners, LP
JAMIT, LLC
Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxx, TTEE**
ML Partners
Pacific Capital Ventures, LLC
PV Securities Corp.
River Cities Capital Fund II Limited Partnership
River Cities SBIC III, L.P.
Xxxxxxx Xxxxxxxxxx
St. Xxxx Venture Capital Affiliates Fund I, L.L.C.
St. Xxxx Venture Capital IV, L.L.C.
St. Xxxx Venture Capital V, LLC
St. Xxxx Venture Capital VI, L.L.C.
Xxxxxxx, Xxxxxxx & Company Q.P., X.X.
Xxxxxxx, Xxxxxxx & Company, L.P.
TenX Venture Partners, LLC
ZAFA LLC
BlueCrest Strategic Limited
| ** | Xxxxxx X. Xxxxxxxxx, TTEE FBO X.X. Xxxxxxxxx Cardiovascular Medical Group of Southern California 401K, profit sharing plan, DTD 1/1/1989 |
STOCKHOLDERS
Xxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
| SPS Registration Rights Agreement [Amended and Restated April 2007] | Page A-1 |
EXHIBIT B
NOTICE OF ADOPTION
(Registration Rights Agreement)
(Registration Rights Agreement)
This Notice of Adoption (“Adoption Notice”) is executed by the undersigned (the “Adopting
Party”) pursuant to the terms of that certain Amended and Restated Registration Rights Agreement
dated as of April 10, 2007, as may be amended from time to time (the “Agreement”), by and among SPS
Commerce, Inc., a Delaware corporation, and the other parties thereto. Capitalized terms used but
not defined herein will have the respective meanings ascribed to such terms in the Agreement. By
the execution and delivery of this Adoption Notice, the Adopting Party agrees as follows:
1. Acknowledgment. Adopting Party acknowledges that Adopting Party is purchasing the
shares of the Company’s capital stock set forth below (the “Shares”).
2. Agreement. Adopting Party: (i) agrees that the Shares acquired by Adopting Party
will be bound by and subject to the terms of the Agreement; and (ii) hereby adopts the Agreement
with the same force and effect as if Adopting Party were originally an “Investor.”
3. Notice. Any notice required or permitted by the Agreement will be given to
Adopting Party at the address or facsimile listed beside Adopting Party’s signature below.
IN WITNESS WHEREOF, the Adopting Party has caused this Notice of Adoption to be executed by
its duly authorized representative as of the date first written below.
Shares Purchased: |
||
Class of Stock:
|
Printed Name of Adopting Party | |
Date: |
||
| Signature | ||
Address |
||
Facsimile: ( )
|
Printed Name and Title of Authorized Signatory of Adopting Party | |
| SPS Registration Rights Agreement [Amended and Restated April 2007] | Page B-1 |
SPS COMMERCE, INC.
Amendment No. 1 to Registration Rights Agreement
This Amendment No. 1 (this “Amendment”) to the Registration Rights Agreement by and among SPS
Commerce, Inc., a Delaware corporation (the “Company”), and the parties listed therein dated as of
April 10, 2007 (the “Agreement”) is effective as of May 5, 2011. Capitalized terms used but not
defined in this Amendment have the meanings given to those terms in the Agreement.
Recitals
A. The Company entered into in the Agreement with the Investors who held shares of the
Company’s previously outstanding Preferred Stock in connection with the Company’s issuance of the
Series C Preferred Stock.
B. In connection with the Company’s initial public offering, all of the Preferred Stock
converted into Common Stock (the “Conversion”) and the Common Stock began trading on the Nasdaq
Global Market.
C. To facilitate the financing of the Company as a publicly-traded company, the undersigned,
constituting (i) the Company and (ii) the Persons who held at least 66.67% of the issued and
outstanding Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock at the
time of Conversion desire to amend the Agreement as set forth below.
Agreement
Now, therefore, for good and valuable consideration, the undersigned hereby agree as follows:
1. The following is added as Section 11(s) of the Agreement:
“(s) Termination of Registration Rights. The right of any Investor to
be notified of or request registration or inclusion of Registrable Securities in any
registration pursuant to Section 3 or Section 4 shall terminate upon the earlier of
such time as Rule 144 under the Securities Act or another similar exemption under
the Securities Act is available for the sale of all of such Investor’s shares
without limitation during a three-month period without registration.”
2. Section 11(b) of the Agreement is amended and restated to read in its entirety as follows:
“(b) Amendments; Waivers. This Agreement may be amended or modified
and the observance of any term or condition of this Agreement may be waived (either
generally or in a particular instance, and either retroactively or prospectively)
only by a written agreement executed by the Company and the holders of at least
66.67% of the Common Stock issued upon conversion of the Preferred Stock that have
not been previously sold and are not able to be sold pursuant to Rule 144 under the
Securities Act or another similar exemption under the Securities Act without
limitation during a three-month period without registration.”
3. Section 11(d) of the Agreement is amended and restated to read in its entirety as follows:
“(d) Benefit of Parties; Assignability. All of the terms and
provisions of this Agreement will be binding upon and inure to the benefit of the
parties and their respective successors and assigns, including without limitation
all subsequent holders of securities entitled to the benefits of this Agreement who
agree in writing to become bound by the terms of this Agreement within two business
days after first becoming a holder of securities entitled to the benefits of this
Agreement; provided, however, the Company may not delegate its responsibilities or
assign its rights under this Agreement
| Amendment of Registration Rights Agreement | Page 1 |
without the prior written consent of the holders of at least 66.67% of the
Common Stock issued upon conversion of the Preferred Stock.”
4. Except as expressly provided herein, no further amendments to the Agreement are provided
hereby.
5. The validity, meaning and effect of this instrument will be determined, construed and
enforced in accordance with the laws of the State of Delaware, without regard to conflict of laws
principles of any other state.
6. This instrument may be executed by facsimile signature and in counterparts, each of which
will be deemed an original, but all of which will constitute one and the same instrument.
[Remainder of page left intentionally blank — signature pages follow]
| Amendment of Registration Rights Agreement | Page 2 |
IN WITNESS WHEREOF, the parties have caused this instrument to be effective as of the date
first written above.
| SPS COMMERCE, INC. |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxx | |||
| Xxxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| Amendment of Registration Rights Agreement | Signature Page |
IN WITNESS WHEREOF, the parties have caused this instrument to be effective as of the date
first written above.
| CID EQUITY FUND V LIQUIDATING TRUST CID EQUITY PARTNERS V, as Trustee By: Xxxxx Partners, LLC, as General Partner |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx | ||||
| Sole Member | ||||
| CID MEZZANINE CAPITAL, L.P. By: CID Mezzanine Partners, L.P., as General Partner |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx | ||||
| General Partner | ||||
| Amendment of Registration Rights Agreement | Signature Page |
IN WITNESS WHEREOF, the parties have caused this instrument to be effective as of the date
first written above.
| BVCF IV, L.P. By: Xxxxx Street Partners, LLC, as General Partner |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
| Partner | ||||
| Amendment of Registration Rights Agreement | Signature Page |
IN WITNESS WHEREOF, the parties have caused this instrument to be effective as of the date
first written above.
| SPVC IV, LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Managing Member | ||||
| SPVC V, LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Managing Member | ||||
| SPVC VI, LLC By: SPVC Management VI, LLC, its Managing Member |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Managing Director | ||||
| SPVC AFFILIATES FUND I, LLC By: Split Rock Partners, LLC Its: Co-Manager |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Managing Director | ||||
| Amendment of Registration Rights Agreement | Signature Page |
IN WITNESS WHEREOF, the parties have caused this instrument to be effective as of the date
first written above.
| RIVER CITIES CAPITAL FUND II LIMITED PARTNERSHIP By: River Cities Management II, L.P. Its: General Partner By: Xxxxxx XX, Inc. Its: General Partner |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx X. Xxxxxxxx | ||||
| President | ||||
| RIVER CITIES SBIC III, L.P. By: RCCF Management Inc. Its: General Partner |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx X. Xxxxxxxx | ||||
| President | ||||
| Amendment of Registration Rights Agreement | Signature Page |
IN WITNESS WHEREOF, the parties have caused this instrument to be effective as of the date
first written above.
| THE XXXXXX XXXXX TRUST U/D/T 7/28/92 |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Xxxxxx Xxxxx | ||||
| Trustee | ||||
| ALLENWOOD VENTURES, INC. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| AXIOM VENTURE PARTNERS II LIMITED PARTNERSHIP |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Its: General Partner | ||||
| Xxxxx X. Xxxxx | ||||
| Xxxxx Xxxx Xxxx | ||||
| Amendment of Registration Rights Agreement | Signature Page |
IN WITNESS WHEREOF, the parties have caused this instrument to be effective as of the date
first written above.
| /s/ Xxxxxx Xxxxxxxxx | ||||
| Xxxxxx Xxxxxxxxx | ||||
| X.X. XXXXXXXXX CARDIOVASCULAR MEDICAL GROUP OF
SOUTHERN CALIFORNIA 401(K) PROFIT SHARING PLAN DTD
1/1/1989 |
||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Xxxxxx Xxxxxxxxx. Trustee | ||||
| Xxxxxx Xxxxxxxxx | ||||
| PACIFIC CAPITAL VENTURES, LLC |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| PV SECURITIES CORP. |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| /s/ Xxxxxxx Xxxxxxxxxx | ||||
| Xxxxxxx Xxxxxxxxxx | ||||
| Amendment of Registration Rights Agreement | Signature Page |
IN WITNESS WHEREOF, the parties have caused this instrument to be effective as of the date
first written above.
| XXXXXXX, XXXXXXX & COMPANY Q.P., L.P. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Its: Sr. Managing Director | ||||
| XXXXXXX, XXXXXXX & COMPANY, L.P. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Its: Sr. Managing Director | ||||
| TENX VENTURE PARTNERS, LLC |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| ZAFA LLC |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Its: Managing Partner | ||||
| BLUECREST STRATEGIC LIMITED |
||||
| By: | ||||
| Name: | ||||
| Its: | ||||
| Amendment of Registration Rights Agreement | Signature Page |
