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Exhibit 4.11
REGISTRATION RIGHTS AGREEMENT
Amended and Restated Registration Rights Agreement ("Agreement") dated May
30, 1997 among Online Resources & Communications Corporation, a Delaware
corporation (the "Company"), and the persons listed as Holders on the signature
pages of a counterpart of this Agreement (the "Holders").
Capitalized terms used in this Agreement and not otherwise defined are
defined in Section 11 of this Agreement.
PRELIMINARY STATEMENT
Concurrently with the execution of this Agreement, the Company and certain
investors propose to execute that certain Series C Convertible Preferred Stock
and Warrant Purchase Agreement of even date with this Agreement (the "Stock
Purchase Agreement") pursuant to which the Holders will purchase shares of
Series C Convertible Preferred Stock and Warrants of the Company. To induce the
Holders to execute the Stock Purchase Agreement at the "Initial Closing" (as
defined in the Stock Purchase Agreement), and to induce any subsequent
purchasers of Series C Preferred to execute the Stock Purchase Agreement at any
"Additional Closings" (as defined in the Stock Purchase Agreement), and in
consideration of the mutual representations and agreements set forth in this
Agreement, the Company and the other parties to this Agreement agree as follows.
AGREEMENT
SECTION 1. REQUIRED REGISTRATIONS.
1.1 The Holders of Registrable Common holding more than 50% of the
Registrable Common may, by a written notice to the Company, request that the
Company register any Registrable Common specified in the notice, under the
Securities Act on a form other than a Short Form and under other relevant
securities laws, for disposition in accordance with methods stated in the
notice. Such notice may specify an underwriter for such registration.
1.2 When it receives a registration notice under Section 1.1, the Company
shall, within three business (3) days, deliver a copy of such registration
notice to each Holder of Convertible Securities or Registrable Common who is
not a party to the registration notice, each of whom may then specify, by
written notice to the Company delivered within fifteen (15) days of receipt of
the notice from the Company, a number of shares of Registrable Common held by
it which it wishes to include in any registration pursuant to the registration
notice under Section 1.1.
1.3 When it receives a registration notice under Section 1.1, the Company
will expeditiously cause a registration statement to be filed, and use its best
efforts to cause such registration statement to become effective under the
Securities Act, for the Registrable Common specified in the registration notice
under Section 1.1 and subsequent notices under Section 1.2 in order to permit
disposition by such Holders in accordance with the methods of disposition
described in the registration notice.
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SECTION 2. REGISTRATIONS ON SHORT FORMS.
2.1 If at any time the Company is a registrant entitled to use a Short
Form to register Registrable Common, one or more Holders may, by a written
notice to the Company, request that the Company register Registrable Common
specified in the notice on a Short Form.
2.2 When it receives a Short Form registration notice under Section 2.1,
the Company shall, within three (3) business days, deliver a copy of such
registration notice to each Holder of Convertible Securities or Registrable
Common who is not a party to such registration notice, each of whom may then
specify, by written notice to the Company delivered within fifteen (15) days of
receipt of the notice from the Company, a number of shares of Registrable
Common held by it that it wishes to include in any registration pursuant to the
registration notice under Section 2.1 of this Agreement.
2.3 When it receives a notice under Section 2.1, and provided that the
reasonably anticipated price to the public of the Registrable Common proposed
to be registered by all sellers of such Registrable Common would total more
than $250,000, the Company will expeditiously cause a registration statement
to be filed, and use its best efforts to cause such registration statement to
become effective under the Securities Act on the Short Form specified in the
notice for the Registrable Common specified in the registration notice under
Section 2.1 and subsequent notices under Section 2.2. The Company shall provide
Holders a reasonable opportunity to review any such registration statement or
amendment or supplement thereto prior to filing.
SECTION 3. INCIDENTAL REGISTRATION. Each time the Company proposes to
register any of its Securities under the Securities Act, it will give at least
forty-five (45) days prior written notice of its intention to do so to each
Holder, which notice shall identify the proposed underwriter for such offering.
Each Holder may then specify, by written notice to the Company delivered within
fifteen (15) days of receipt of notice from the Company, a number of shares of
Registerable Common held by it which it wishes to include in the Company's
proposed registration. If at least 50% of the shares to be registered in such
offering are held by Holder of Registrable Common, then such Holders shall
have the right to approve the underwriter (voting as a group, based upon the
number of shares of Registrable Common held by each to be included in such
offering), which approval shall not be unreasonably withheld. Subject to the
limitations of Section 8, the Company will use its best efforts to effect the
registration under the Securities Act of Registrable Common specified by
Holders under this Section 3.
SECTION 4. LIMITATIONS ON REGISTRATION RIGHTS. Notwithstanding any
contrary provision of this Agreement:
A. the Company shall not be required to effect more than two
registrations pursuant to Section 1 (for purposes of this Section 4.A., a
registration shall not be deemed "effective" unless the registration
statement is declared effective by the Commission);
B. Section 3 shall not apply to a registration effected solely to
implement an employee benefit plan or to any other form or type of
registration which does not permit inclusion of Registrable Common pursuant
to Commission rule or practice;
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C. the Company shall not be obligated to effect a registration pursuant
to Section 1 during the period starting with the date thirty days prior to the
Company's estimated date of filing of, and ending on a date six months following
the effective date of a registration pertaining to an underwritten public
offering of securities for the account of the Company, provided that the Company
is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective and that the Company's estimates of
the date of filing of such registration statement is made in good faith;
D. if (a) there is material non-public information regarding the Company
which the Board reasonably determines not to be in the Company's best interest
to disclose and which the Company is not otherwise required to disclose, or (b)
there is a significant business opportunity available to the Company which the
Board reasonably determines not to be in the Company's best interest to
disclose, or (c) there is a significant business opportunity available to the
Company and the Board reasonably determines that the Company's ability to pursue
such opportunity would be materially and adversely affected by a registered
public offering of the Company's Securities, then the Company may postpone
filing a registration statement requested pursuant to Sections 1 or 2 for a
period not to exceed 90 days, provided that the Company may not postpone its
obligations as permitted under this Section 4.D. more than once in each 12 month
period; and
E. notwithstanding the foregoing registration rights, the Company shall
not be obligated to effect any registration under Section 1 or Section 2 of this
Agreement if, within 14 days after receipt of a request for any such
registration, the Company shall furnish the Holders with a written opinion of
legal counsel reasonably satisfactory to each of them and reasonably
satisfactory in form and substance to counsel for each of the Holders, that all
of the shares of Registrable Common requested by the Holders to be so registered
may be sold within sixty (60) days after such request in a transaction in
compliance with Rule 144 promulgated under the Securities Act (or any similar
successor exemptive rule hereinafter in effect). In rendering such opinion, such
counsel shall be entitled to rely on published figures for the average weekly
volume of trading in shares of the Common Stock during the sixty (60) days
immediately preceding the date of such opinion as reported (i) on any national
securities exchange on which such shares are listed, or (ii) through the
automated quotation system of a registered national securities association, as
the case may be.
SECTION 5. REGISTRATION PROCEDURES.
5.1 Whenever the Company is required by the provisions of this Agreement
to effect the registration of any Registrable Common under the Securities Act,
the Company will, as expeditiously as possible:
A. in the case of a registration required under Section 1, engage
the underwriters designated by the Holders giving notice under Section 1.1,
or in the case of an incidental registration under Section 3, the
underwriter specified in the notice given to the Holders and approved by
the Holders;
B. before filing each registration statement or prospectus or
amendment or supplement thereto with the Commission, furnish counsel for
the Holders of Registrable
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Common included in such registration with copies of all such documents
proposed to be filed which shall be subject to the reasonable approval of such
counsel;
C. prepare and file with the Commission a registration statement with
respect to such Registrable Common and use its best efforts to cause such
registration statement to become and remain effective for such period as may be
reasonably necessary to effect the sale of such securities, not to exceed nine
months;
D. prepare and file with the Commission (and any exchange on which the
Company's Securities may be or are proposed to be listed and with the National
Association of Securities Dealers. Inc.) such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for such period and to
comply with the provisions of the Securities Act with respect to the sale or
other disposition of all Registrable Common covered by such registration
statement in accordance with the intended methods of disposition set forth in
such registration statement, but only to the extent provided in this Section 5;
E. prepare and promptly file with the Commission, and notify each seller
of such Registrable Common as expeditiously as possible of the necessity for and
the filing of, such amendment or supplement to such registration statement or
prospectus as may be necessary to correct any statements or omissions if, during
such periods as a prospectus relating to such securities is required to be
delivered under the Securities Act, any event shall have occurred as the result
of which any such prospectus or any other prospectus as then in effect would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
in which they were made, not misleading;
F. furnish to the underwriters and each seller of such Registrable Common
such numbers of copies of such registration statement, each amendment and
supplement thereto, the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as such
underwriters or sellers may reasonably request in order to facilitate the
disposition of the Registrable Common subject to such registration statement in
accordance with such registration statement;
G. use its best efforts to register or qualify any Registrable Common
covered by such registration statement under the securities or blue sky laws of
such jurisdictions within the United States of America as the seller or the
underwriters reasonably request, and to take any other acts which a seller or
the underwriters may reasonably request under such securities or blue sky laws
to enable the consummation of the disposition in such jurisdictions of such
Registrable Common (provided, however, that the Company may not be required
under this Agreement (i) to qualify generally to do business as a foreign
corporation in any jurisdiction in which it would not otherwise be required to
qualify, or (ii) to subject itself to taxation in any such jurisdiction, or
(iii) to consent to general service of process in any such jurisdiction);
H. provide a transfer agent and registrar for all Registrable Common sold
under the registration not later than the effective date of the registration
statement;
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I. cause all Registrable Common sold under the registration to be
listed on a recognized securities exchange, if any, or to become eligible
for trading on the NASDAQ National Market System;
J. enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
underwriters, if any, or the Holders of a majority of the Registrable
Common being sold reasonably request in order to expedite or facilitate the
disposition of such Registrable Common (including, without limitation,
effecting a stock split or a combination of shares);
K. make available for inspection by the sellers of Registrable
Common, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent
retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such
seller or underwriter in connection with such registration statement, all
subject to such limitations as the Company reasonably deems appropriate in
order to protect the Company's confidential or proprietary information; and
L. advise each seller of Registrable Common, immediately after it
shall receive notice or obtain knowledge thereof, of the issuance of any
stop order by the Commission suspending the effectiveness of such
registration statement or the initiation or threatening of any proceeding
for such purpose and promptly use reasonable efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such stop order
should be issued.
5.2 It shall be a condition precedent to the inclusion of the Registrable
Common of any Holder in a registration effected pursuant to this Agreement that
such Holder shall furnish to the Company such information regarding such Holder,
the Registrable Common of such Holder to be registered and the intended method
of disposition of such Registrable Common, and shall execute such indemnities
with respect to such information provided by such Holders, underwriting
agreements and other documents, as the Company shall reasonably request in order
to satisfy the requirements applicable to such registration.
SECTION 6. EXPENSES. The Company shall pay all expenses incurred in
effecting the registration of Registrable Common provided for in this
Agreement, including, without limitation, all registration and filing fees,
printing expenses, listing fees, fees and disbursements of counsel for the
Company, reasonable fees and disbursements of a single counsel for the sellers
selected by the Holders of a majority of the Registrable Common subject to such
registration (not to exceed $10,000), underwriting expenses other than
discounts and commissions, expenses of any audits incident to or required by
any such registration, and expenses of complying with the securities or blue
sky laws of any jurisdictions pursuant to Section 5.1G of this Agreement.
SECTION 7. INDEMNIFICATION.
7.1 In the event of any registration of any of its Registrable Common
under the Securities Act pursuant to this Agreement, the Company agrees, to the
extent permitted by law, to indemnify and hold harmless each seller of such
Registrable Common, each partner in, or director and officer of, each such
seller, and each other person, if any, who controls (within the meaning of the
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Securities Act) such seller against any losses, claims, damages or liabilities,
joint or several, arising out of or based upon:
(1) any alleged untrue statement of any material fact contained in any
registration statement under which such Securities were registered under the
Securities Act, any preliminary prospectus or final prospectus contained
therein, or any summary prospectus contained therein, or any amendment or
supplement to any such registration statement or prospectus, or
(2) any alleged omission to state in any such document a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or any violation by the Company of the Securities Act or any
state securities law or in either case any rule or regulation thereunder
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, qualification or
compliance, except, with respect to any seller, insofar as any such loss,
claim, damage or liability is:
(a) caused by or contained in any information furnished in writing to
the Company by such seller expressly for use in connection with such
registration, or
(b) caused by such seller's failure to deliver a copy of the
registration statement or prospectus or any amendment or supplement
thereto as required by the Securities Act or the rules or regulations
thereunder, or
(c) caused by the use of a prospectus or preliminary prospectus or any
amendment or supplement thereto by such seller after receipt of written
notice from the Company that it should no longer be used.
In connection with an underwritten offering, the Company will indemnify such
underwriters, their officers and directors and each person who controls (within
the meaning of the Securities Act) such underwriters to the same extent as
provided above with respect to the sellers of Registrable Common and as to such
other matters as such underwriters may reasonably request or which are covered
in such underwriters' customary form of underwriters' agreement. The Company
shall reimburse legal and other expenses incurred by each person indemnified
pursuant to this Section 7.1 in connection with investigating or defending any
loss, claim, damage, liability or action indemnified against. The reimbursements
required by this Section 7.1 shall be made by periodic payments during the
course of the investigation or defense, as and when bills are received or
expenses incurred. The indemnities provided pursuant to this Section 7.1 shall
survive transfer of Registrable Common by a seller.
7.2 In the event of any registration of any of its Registrable Common under
the Securities Act pursuant to this Agreement, each Holder agrees to furnish to
the Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any registration statement or prospectus in
connection with the registration or any amendment or supplement thereto and, to
the extent permitted by law, agrees severally and not jointly to indemnify and
hold harmless the Company, its directors and officers, each other seller of
securities in such registration, each partner in, or officer or director of,
each such seller, and each person who controls (within the meaning of the
Securities Act) the Company or such other seller against any losses, claims,
damages or liabilities, joint or several, arising out of or based upon:
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(1) any alleged untrue statement of any material fact contained, on the
effective date thereof, in any registration statement under which such
Securities were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any summary
prospectus contained therein, or any Securities being registered, or any
amendment or supplement thereto, or
(2) any alleged omission to state in any such document a material fact
required to be stated therein or necessary to make the statements therein
not misleading,
but only insofar as any such loss, claim, damage or liability is caused by or
contained in any information furnished in writing to the Company by the
indemnifying seller expressly for use in connection with such registration,
and excluding any such loss, claim, damage or liability which is caused by or
contained in such statements, or caused by such omissions, based upon the
authority of an expert as defined in the Securities Act (but only if the
indemnifying seller had no ground to believe, and did not believe, that the
statements made on the authority of an expert were untrue or that there was an
omission to state a material fact), and provided further, that in no event shall
the indemnification obligation of any Holder pursuant to this Section 7.2 exceed
the net proceeds received by such Holder from the sale of such Holder's
Registrable Common pursuant to the subject registration. In connection with an
underwritten offering, each seller will indemnify such underwriters, their
officers and directors and each person who controls (within the meaning of the
Securities Act) such underwriters to the same extent as provided above with
respect to the Company and other sellers. Each seller shall reimburse each
person indemnified pursuant to this Section 7.2 in connection with investigating
or defending any loss, claim, damage, liability or action indemnified against.
The indemnities provided pursuant to this Section 7.2 shall survive transfer of
Registrable Common by an indemnifying seller, and transfer of other securities
by any other indemnified seller.
7.3 Indemnification similar to that specified in Sections 7.1 and 7.2
(with such modifications as shall be appropriate) shall be given by the Company
and each Holder of any Registrable Common covered by any registration or other
qualification of Securities under any federal or state securities law or
regulation other than the Securities Act with respect to any such registration
or other qualification effected pursuant to this Agreement.
7.4 In the event the Company or any Holder receives a complaint, claim or
other notice of any loss, claim or damage, liability or action, giving rise to
claim for indemnification under this Section 7, the person claiming
indemnification shall promptly notify the person against whom indemnification
is sought (unless such person is also a party to such complaint, notice, claim
or action) of such complaint, notice, claim or action, and such indemnifying
person shall have the right to investigate and defend any such loss, claim,
damage, liability or action, provided that such indemnifying person shall not
settle any such claim or action unless (i) such settlement is approved by the
person claiming indemnification, or (ii) such settlement provides for a full,
general release from all claims against the person claiming indemnification.
The person claiming indemnification shall have the right to employ separate
counsel in any such action and to participate in the defense thereof but the
fees and expenses of such counsel shall not be at the expense of the person
against whom indemnification is sought and the indemnifying person shall not be
obligated to indemnify any person for any settlement of any claim or action
effected without the indemnifying person's consent, which consent will not be
unreasonably withheld.
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SECTION 8. MARKETING RESTRICTIONS.
8.1 If:
A. a registration is to be made pursuant to a registration notice
under Section 1 or Section 2 of this Agreement, and
B. the offering proposed to be made by the Holder or Holders for
whom such registration is to be made is to be an underwritten public
offering, and
C. the managing underwriters of such public offering furnish a
written opinion that the total amount of Registrable Common to be included
in such offering would exceed the maximum number of shares of Common (as
specified in such opinion) which can be marketed at a price reasonably
related to the current market value of such Common and without otherwise
materially and adversely affecting such offering,
then the rights of the Holders, of the holders of other Securities having the
right to include Common in such registration and of the Company to participate
in such offering shall be in the following order of priority:
First: the Holders shall be entitled to participate in such offering to
the extent of such maximum number of shares of Common, or of the aggregate
number of shares of Registrable Common that all such Holders shall have
requested be registered, whichever is less, pro rata among themselves in
accordance with the total number of shares of Registrable Common held by
each such Holder; and then
Second: if such maximum number of shares of Common exceeds the aggregate
number of shares of Registrable Common that all such Holders shall have
requested be registered, the Company and all holders of other Securities
having the right to include such Securities in such registration shall be
entitled to participate in accordance with the relative priorities, if any,
that shall exist among them and the Company;
and no Securities (issued or unissued) other than those registered and included
in the underwritten offering shall be offered for sale or other disposition by
the Company or any Holder in a transaction which would require registration
under the Securities Act for a period beginning thirty (30) days prior to the
anticipated effective date of such registration statement and continuing until
ninety (90) days after the effective date of the registration statement filed in
connection with such registration or such earlier time consented to by the
managing underwriter, but in no event shall such period exceed 120 days. In the
future, the Company shall require each person to whom the Company grants such
rights, as a condition precedent to the effectiveness of such rights, to agree
to be bound by the foregoing restriction on distribution after conclusion of the
underwritten offering.
8.2 If:
A. any Holder of Preferred or Registrable Common requests inclusion
of Registrable Common in a registration statement filed by the Company
under Section 3 of this Agreement, and
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B. the offering proposed to be made is to be an underwritten public
offering, and
C. the managing underwriters of such public offering furnish a
written opinion that the total amount of securities to be included in such
offering would exceed the maximum amount of Securities (as specified in
such opinion) which can be marketed at a price reasonably related to the
then current market value of such Securities and without materially and
adversely affecting such offering,
then the rights of the Holders, of the holders of other Securities having the
right to include such Securities in such registration and of the Company to
participate in such offering shall be in the following order of priority:
First: the Company (if the Company is initiating the registration for
the sale of Securities which the Company proposes to issue in such
registration); and then
Second: the Holders shall be entitled to participate in such
offering, pro rata among themselves in accordance with the number of shares
of Registrable Common held by each such Holder: and then
Third: all other holders (including the Company, if such registration
shall have been requested by a person other than the Company) of Securities
having the right to include such Securities in such registration shall be
entitled to participate in accordance with the relative priorities, if any,
that shall exist among them;
and no Securities (issued or unissued) other than those registered and included
in the underwritten offering shall be offered for sale or other disposition by
the Company or any Holder in a transaction which would require registration
under the Securities Act for a period beginning thirty (30) days prior to the
anticipated effective date of such registration statement and continuing until
ninety (90) days after the effective date of the registration statement filed in
connection with such registration or such earlier time consented to by the
managing underwriter, but in no event shall such period exceed 120 days.
8.3 In connection with any offering involving an underwriting of
Registrable Common pursuant to Section 3 of this Agreement, the Company shall
not be required to include any of the Registrable Common of a Holder in such
offering unless such Holder agrees to the terms of the underwriting agreed to
between the Company and the underwriter or underwriters selected by the Company,
provided that no such agreement shall add to the indemnities or affect the
priorities set forth in this Agreement.
SECTION 9. SALE OF CONVERTIBLE SECURITIES TO UNDERWRITER. Notwithstanding
anything in this Agreement to the contrary, in lieu of converting any
Convertible Securities to Common prior to or simultaneously with the filing or
the effectiveness of any registration statement filed pursuant to this
Agreement, the Holder of such Preferred may sell such Preferred to the
underwriter of the offering being registered upon the undertaking of such
underwriter to (i) convert such Preferred into Common before making any
distribution pursuant to such registration statement, and (ii) include such
Common among the Securities being offered pursuant to such registration
statement. The Company agrees to cause the Common issuable on conversion of such
Preferred to be issued within such time as will permit the underwriter to make
and complete the distribution contemplated by the
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underwriting and to register the Preferred in any registration statement so
that the Holder may make the sale described in the first sentence of this
Section 9.
SECTION 10. LOCKUP AGREEMENT. Each Holder and the Company agrees in
connection with any registration of any of the Company's Securities that, upon
the request of the Company or the underwriters managing any underwritten
offering of the Company's Securities, he or it will not sell, make any short
sale of, loan, grant any option for the purchase of, or otherwise dispose of
any Securities of the Company (other than the Securities included in the
registration) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time beginning thirty (30)
days prior to the anticipated effective date of such registration statement and
continuing until one hundred and eighty (180) days after the effective date of
such registration statement, but in no event shall such period exceed two
hundred and ten (210) days.
SECTION 11. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
"Board" means the Board of Directors of the Company.
"Commission" means the Securities and Exchange Commission, and any
successor thereto.
"Common" means the Company's common stock, $.0001 par value per share.
"Convertible Securities" means the Preferred and any other Security of the
Company which is convertible, exercisable or exchangeable for Common.
"Holders" means the parties listed on the signature pages hereof, and any
subsequent legal or beneficial owner of Registrable Common who has become a
party to this Agreement in accordance with Section 12 hereof.
"Preferred" means, the Company's Series C Convertible Preferred Stock, par
value $.01 per share.
"Registrable Common" means at any time (i) any shares of Common then
outstanding which were issued upon conversion of Preferred; (ii) any shares of
Common then issuable upon conversion of then outstanding Preferred; (iii) any
shares of Common then outstanding which were issued as, or were issued directly
or indirectly upon the conversion or exercise of other Securities issued as, a
dividend or other distribution with respect to, or in replacement of, Preferred
or Common; (iv) any shares of Common then issuable directly or indirectly upon
the conversion or exercise of other Securities issued as a dividend or other
distribution with respect to, or in replacement of, Preferred or Common, (v)
any shares of Common then outstanding which were issued upon exercise of any
Warrant, and any shares of Common then issuable upon exercise of any Warrant,
and (vi) any other shares of Common then outstanding and owned by any Holder.
For purposes of determining the equivalent of a given amount of Registrable
Common, a person will be deemed to be the holder of Registrable Common then
issuable but not actually issued whenever such person has the then-existing
right (by conversion or otherwise) to acquire such Registrable Common, even
though such acquisition has not actually been effected.
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"Securities" means any debt or equity securities of the Company, whether
now or hereafter authorized and any instrument convertible or exchangeable for
any such debt or equity securities. "Security" means one of the Securities.
"Securities Act" means the Securities Act of 1933, as amended prior to or
after the date of this Agreement, or any federal statute or statutes which
shall be enacted to take the place of such Act, together with all rules and
regulations promulgated thereunder.
"Short Form" means Form S-2 or Form S-3 under the Securities Act, and any
other form promulgated after the date of this Agreement available for use by
the Company in circumstances substantially comparable to either of those forms,
regardless of its designation.
"Warrant" means both the stock purchase warrants previously issued by the
Company to certain of the Holders which allow such Holders to purchase shares
of the Common at a specified per share price, and the stock purchase warrants
sold to the Holders as contemplated by the Stock Purchase Agreement.
SECTION 12. ASSIGNABILITY OF REGISTRATION RIGHTS. The rights set forth
in this Agreement shall accrue to each subsequent holder of Preferred or
Registrable Common who shall have executed a written consent after becoming the
holder of such Securities agreeing to be bound by the terms and conditions of
this Agreement as a party to this Agreement.
SECTION 13. TERMINATION OF REGISTRATION RIGHTS. Notwithstanding any
contrary provision of this Agreement, the rights to registration granted under
this Agreement shall terminate as to any particular share of Registrable Common
when such Registrable Common shall have been (i) effectively registered under
the Securities Act and sold by the holder thereof in accordance with such
registration, or (ii) sold to the public pursuant to Rule 144 of the
Commission, or any successor rule.
SECTION 14. NO PRIOR RIGHTS. Each of the Holders forever waives and
disclaims any and all registration or similar rights previously granted by the
Company to such Holder with respect to the Securities, other than those rights
specifically granted by the Company to the Holders in this Agreement.
SECTION 15. MISCELLANEOUS.
15.1 Amendment. Any provision of this Agreement may be amended by a
written agreement signed by all of the following:
(a) the Company, and
(b) the Holders of Preferred and Registrable Common holding more
than 50% of the Registrable Common.
Notwithstanding the foregoing, no amendment shall confer any greater
rights, or impose any additional restrictions, on any shares of Preferred as
compared to any other shares of Preferred, or any shares of Common as compared
to any other shares of Common, or any Holder as compared to
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any other Holder, without the consent of the Holders of Preferred and
Registrable Common equivalent to 100% of the Registrable Common.
15.2 Entire Agreement. This Agreement represents the entire agreement
between the parties concerning the subject matter of this Agreement, and
supersedes all prior negotiations, understandings and agreements, whether
written or oral, between the parties relating to the subject matter of this
Agreement.
15.3 Successors and Assigns. This Agreement is binding upon and inures to
the benefit of the Company, its successors and assigns, and the Holders, their
successors and assigns, heirs, and legal representatives, as appropriate.
15.4 Severability. If any court or any governmental authority or agency
declares all or any part of any Section of this Agreement to be unlawful or
invalid, such unlawfulness or invalidity shall not serve to invalidate any other
Section of this Agreement, and in the event that only a portion of any Section
is so declared to be unlawful or invalid, such unlawfulness or invalidity shall
not serve to invalidate the balance of such Section.
15.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements
between Delaware residents entered into and to be performed entirely within
Delaware.
15.6 Notices. All notices required or permitted to be given pursuant to
this Agreement shall be in writing and may be delivered by hand, by facsimile,
by nationally recognized private courier, or by the U.S. postal service. Notices
delivered by mail shall be deemed delivered five (5) business days after deposit
with the U.S. postal service, first class mail, postage prepaid. Notices
delivered by hand or by facsimile shall be deemed delivered when received.
Notices given by a nationally recognized private courier shall be deemed
delivered on the first business day following deposit for next-day delivery. All
notices to the Holders shall be addressed to the Holders at their respective
address set forth beneath their name on the signature page to this Agreement or,
if no such person or address appears, at such Holder's address as shown on the
books of the Company or its transfer agent, and if to the Company, at:
Online Resources & Communication Corporation
0000 Xxxxx Xxxxxx Xxxx
XxXxxx, Xxxxxxxx 00000
Attention: President
or such other respective address or addresses as may be designated by notice
given in accordance with the provisions of this Section 15.6.
15.7 Counterparts. This Agreement may be executed in two or more
counterparts, each which shall be deemed an original but all of which shall
together constitute one and the same instrument.
15.8 Heading. The headings used herein are solely for the convenience of
the parties and shall not serve to modify or interpret the text of the Sections
at the beginning of which they appear.
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13
15.9 Remedies. Each of the parties confirms that damages at law may not be
an adequate remedy for a breach or threatened breach of this Agreement, and
agrees that in the event of a breach or threatened breach of any of the
provisions hereof, the respective rights and obligations of the parties under
this Agreement shall be enforceable by specific performance, injunction or
other equitable remedy. Nothing contained in this Section 15.9 shall limit any
party's right to seek or obtain any and all remedies available to such party,
whether at law, by statute or otherwise.
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14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day first above written.
The Company: ONLINE RESOURCES & COMMUNICATIONS CORPORATION
By: [sig]
-----------------------------
Its: Chairman & CEO
-----------------------------
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Holders: DOMINION FUND IV, A DELAWARE LIMITED PARTNERSHIP
By: Dominion Management IV, L.L.C.
its General Partner
By:
-----------------------------
----------------------------------
Print Name
Member
EAST RIVER VENTURES, L.P.
By:
-----------------------------
Its General Partner
By:
-----------------------------
----------------------------------
Print Name
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day first above written.
The Company: ONLINE RESOURCES & COMMUNICATIONS
CORPORATION
By: [sig]
------------------------------
Its: Chairman & CEO
-----------------------------
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Holders: DOMINION FUND IV, A DELAWARE
LIMITED PARTNERSHIP
By: Dominion Management IV, L.L.C.
its General Partner
By: [sig]
------------------------------
Xxxxxxx Xxx
---------------------------------
Print Name
Member
EAST RIVER VENTURES, L.P.
By:
------------------------------
Its General Partner
By:
------------------------------
---------------------------------
Print Name
16
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be executed on the date first written above.
The Company: ONLINE RESOURCES & COMMUNICATIONS CORPORATION
By:
------------------------------
Its:
------------------------------
Holders: APEX INVESTMENT FUND II, L.P.
By: Apex Management Partnership,
its General Partner
By: Stellar Investment Co.,
Managing General Partner
By: [sig]
------------------------------
Xxxxx X. Xxxxxxx, President
APEX INVESTMENT PARTNERS
000 XXXXX XXXXXX XXXXX
XXXXX 0?00
XXXXXXX, XX ?0?0?
---------------------------------
---------------------------------
Apex Entity Address
---------------------------------
---------------------------------
First Analysis Entity Address
PAGE 1
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the date first written above.
The Company: ONLINE RESOURCES & COMMUNICATIONS CORPORATION
By:
----------------------------------
Its:
----------------------------------
Holders: EAST RIVER VENTURES, LP
---------------------------------------
By: [sig]
----------------------------------
000 XXXXXXX XXX - 22ND FLOOR
----------------------------------
XXX XXXX, XX 00000
----------------------------------
Address
PAGE 1
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day first above written.
The Company: ONLINE RESOURCES & COMMUNICATIONS
CORPORATION
By:
-------------------------------------
Its:
-------------------------------------
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Holders:
21st Century Communications T-E Partners, L.P.
By: Sandler Investment Partners, L.P.,
General Partner
By: Sandler Capital Management,
General Partner
By: EMEBE CORP.
-------------------------
By: XXXXXX
-------------------------
21st Century Communications T-E Partners, L.P.
By: Sandler Investment Partners, L.P.,
General Partner
By: Sandler Capital Management,
General Partner
By: EMEBE CORP.
-------------------------
By: [sig]
-------------------------
21st Century Communications Foreign Partners, L.P.
By: Sandler Investment Partners, L.P.,
General Partner
By: Sandler Capital Management,
General Partner
By: EMEBE CORP.
-------------------------
By: [sig]
-------------------------
Applewood Associates, L.P.
By: [sig]
---------------------------------
Xxxxx Xxxxxxxxx
General Partner
19
Signature Page to Registration Rights Agreement
Dated May 30, 1997
Holders: Xxxxx Xxxxxxx, Inc.
By:
---------------------------
------------------------------
Print Title
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
By: [sig]
----------------------------
President
-------------------------------
Print Title
20
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be executed on the date first written above.
The Company: ONLINE RESOURCES & COMMUNICATIONS CORPORATION
By:
----------------------------------------
Its:
----------------------------------------
Holders: APEX INVESTMENT FUND III, L.P.
By: Apex Management III, LLC, its General Partner
By: Stellar Investment Co., Managing Member
[sig]
--------------------------------------------
By: Xxxxx X. Xxxxxxx, President
APEX INVESTMENT PARTNERS
000 XXXXX XXXXXX XXXXX
XXXXX 0000
XXXXXXX, XX 00000
----------------------------------------
----------------------------------------
First Analysis Entity Address
PAGE 1
21
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be executed on the date first written above.
The Company. ONLINE RESOURCE & COMMUNICATIONS CORPORATION
By:
---------------------------------------
Its:
--------------------------------------
Holders: PEERLESS GROUP, INC.
By: [sig]
---------------------------------------
Xxxxxx X. Xxxxxxxxx, Xx.
Chairman of the Board
0000 X. Xxxxxx
------------------------------------------
Xxxxxxxxxx, Xxxxx 00000
------------------------------------------
Address
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the date first written above.
The Company: ONLINE RESOURCES & COMMUNICATIONS CORPORATION
By:
---------------------------------------
Its:
--------------------------------------
Holders: ------------------------------------------
By:
---------------------------------------
------------------------------------------
------------------------------------------
Address
PAGE 1
