EXHIBIT 4.09
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of July 6, 1998 (the "EFFECTIVE DATE"), by and between VeriSign,
Inc., a Delaware corporation ("VERISIGN"), and the persons and entities listed
on Exhibit A hereto (collectively, the "SHAREHOLDERS" and each individually, a
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"SHAREHOLDER") who immediately prior to the Effective Time of the Merger (as
defined below) are all of the shareholders of SecureIT, Inc., a Georgia
corporation (the "COMPANY").
R E C I T A L S
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A. The Company, VeriSign, VeriSign Merger Corp., a Georgia
corporation and wholly owned subsidiary of VeriSign ("NEWCO"), and the
Shareholders have entered into an Agreement and Plan of Reorganization dated as
of July 6, 1998 (the "PLAN"). Pursuant to the Plan, Newco is to be merged with
and into the Company in a statutory merger (the "MERGER"), with the Company to
be the surviving corporation of the Merger and thus becoming a wholly owned
subsidiary of VeriSign. Capitalized terms used but not otherwise defined herein
shall have the meaning given to them in the Plan.
B. As a condition precedent to the consummation of the Merger, the
Plan provides that the Shareholders shall be granted certain piggyback and Form
S-3 registration rights with respect to the shares of VeriSign Common Stock that
are issued to them upon the conversion of their shares of SecureIT Common Stock
in the Merger pursuant to Section 1.1.1 of the Plan, subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
1. REGISTRATION RIGHTS
1.1 Certain Definitions. For purposes of this Agreement:
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1.1.1 Act. The term "Act" means the U.S. Securities Act of 1933, as
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amended, or any successor law.
1.1.2 1934 Act. The term "1934 Act" means the U.S. Securities
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Exchange Act of 1934, as amended, or any successor law.
1.1.3 Registration. The terms "REGISTER," "REGISTERED," and
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"REGISTRATION" refer to the registration effected by preparing and filing a
registration statement in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement.
1.1.4 Registrable Securities. The term "REGISTRABLE SECURITIES"
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means: (i) the shares of VeriSign Common Stock that are issued to the
Shareholders in the Merger pursuant to Section 1.1.1 of the Plan upon the
conversion of the outstanding shares of SecureIT Common
Stock that are owned and held by the Shareholders immediately prior to the
Effective Time; and (ii) any shares of VeriSign Common Stock that may be issued
as a dividend or other distribution (including shares of VeriSign Common Stock
issued in a subdivision and split of VeriSign's outstanding Common Stock) with
respect to, or in exchange for or in replacement of, shares of VeriSign Common
Stock described in clause (i) of this Section 1.1.4 or in this clause (ii);
excluding in all cases, however, any such shares that are: (a) sold by a person
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in a transaction in which rights under this Agreement are not assigned in
accordance with the terms of this Agreement; (b) sold pursuant to a registration
statement filed pursuant to this Agreement; or (c) sold pursuant to Rule 144
promulgated under the Act or otherwise sold to the public. Only shares of
VeriSign Common Stock shall be Registrable Securities. Except as provided in
clause (ii) of the first sentence of this Section 1.1(d), without limitation,
the term "Registrable Securities" does not include: (i) any shares of VeriSign
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Common Stock that were not issued to the Shareholders in the Merger; or (ii) any
shares of VeriSign Common Stock that are issued or issuable upon the exercise of
any VeriSign Options that are issued to the Shareholders pursuant to Section
1.1.5 of the Plan upon the conversion of outstanding SecureIT Options in the
Merger.
1.1.5 Holder. The term "HOLDER" means the original holder of any
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Registrable Securities or any assignee of record of any Registrable Securities
to whom rights under this Agreement have been duly assigned in accordance with
the provisions of this Agreement.
1.1.6 SEC. The term "SEC" or "COMMISSION" means the U.S. Securities
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and Exchange Commission.
1.1.7 Form S-3. The term "FORM S-3" means a Form S-3 registration
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statement under the Act, as such is in effect on the Effective Date, or any
successor registration statement form under the Act subsequently adopted by the
SEC which permits inclusion or incorporation of substantial information by
reference to other documents filed by VeriSign with the SEC.
1.1.8 Rule 415. The term "RULE 415" means Rule 415 under the Act, as
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such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
1.2 Amendment of Prior Rights Agreement. VeriSign agrees to use its
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best efforts to effect an amendment (the "AMENDMENT") to that certain Amended
and Restated Investors' Rights Agreement dated as of November 15, 1996 (the
"PRIOR RIGHTS AGREEMENT") and entered into between VeriSign and certain
stockholders of VeriSign (the "PRIOR RIGHTS HOLDERS") to provide for the
inclusion of the Holders' Registrable Securities in any Demand Registration
pursuant to Section 1.3.4(a) below. The rights granted to the Holders pursuant
to this Agreement shall be subject to the restrictions on subsequent
registration rights set forth under Section 1.14 of the Prior Rights Agreement,
subject to the Amendment.
1.3 Piggyback Registration Rights
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1.3.1 In the event that VeriSign proposes to register an
underwritten offering of any shares of Common Stock pursuant to Section 1.2 of
the Prior Rights Agreement (a "DEMAND REGISTRATION"), or for its own account
("COMPANY REGISTRATION"), under the Act (other than for
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an offering primarily or exclusively to employees, or in connection with the
acquisition of the assets or shares of, or merger or consolidation with, another
corporation, or in connection with an offering of debt securities), following
the Pooling Lockup Termination Date (as defined in Section 1.14 below) and prior
to January 30, 1999 (a "PIGGYBACK REGISTRATION"), VeriSign shall notify the
Holders at least 30 days prior to the filing of any such registration form with
the SEC, and will, subject to Section 1.2 hereof, use its best efforts to
include in such registration up to twenty-five percent (25%) of the aggregate
Registrable Securities held by each of the Holders as of immediately following
the Effective Date (the "PIGGYBACK REGISTRABLE PORTION") with respect to which
VeriSign has received a written request for inclusion within 15 days after such
notice. Each such request shall specify the number of shares such Holder wishes
to include in such registration statement and shall contain an undertaking from
the Holder to provide all such information and material and to take all such
actions as may be reasonably required by VeriSign in order to permit VeriSign to
comply with all applicable federal and state securities laws. In the event that
VeriSign receives requests from the Holders to include a number of Registrable
Securities in the Piggyback Registration that exceeds the Piggyback Registrable
Portion, the number of Registrable Securities that may be included in such
registration shall be the Piggyback Registrable Portion, allocated among the
Holders requesting registration on a pro rata basis in accordance with the
number of Registrable Securities held by each such Holder on the Effective Date.
1.3.2 VeriSign shall pay all registration and filing fees, fees
and expenses of compliance with federal and state securities laws, printing
expenses, messenger and delivery expenses, accounting fees and the reasonable
fees and disbursements of counsel for VeriSign and one counsel for the Holders
in connection with a Piggyback Registration. Each Holder participating in the
Piggyback Registration shall bear such Holder's proportionate share (based on
the total number of shares sold in such registration for the account of such
Holder) of all discounts, sales commissions or similar selling charges payable
to underwriters or brokers in connection with such offering.
1.3.3 In the event that such Demand Registration or Company
Registration is an underwritten registration, VeriSign will use its best efforts
to include the shares required to be registered under this Section 1.3 in such
underwriting. The right of any Holder to include his Registrable Securities in
an underwritten registration pursuant to this Section 1.3 shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their Registrable Securities
through such underwriting shall enter into an underwriting agreement in
customary form with the managing underwriter or underwriter(s) selected for such
underwriting by VeriSign. If any Holder disapproves of the terms of any such
underwriting, such Holder may elect to withdraw therefrom by written notice to
VeriSign and the underwriter, delivered at least ten (10) business days prior to
the effective date of the registration statement. Any Registrable Securities
excluded or withdrawn from such underwriting shall be excluded and withdrawn
from the registration.
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1.3.4 Notwithstanding any other provision of this Agreement:
(a) provided the Amendment has been approved in accordance with
Section 1.2 above, in connection with a Demand Registration, if the underwriter
advises the Initiating Holders (as defined in the Prior Rights Agreement) in
writing that marketing factors require a limitation of the number of shares to
be underwritten, then the number of shares of Registrable Securities that may be
included in the underwriting shall be allocated among the Holders thereof in
proportion (as nearly as practicable) to the amount of Registrable Securities
owned by all Holders and Prior Rights Holders, in accordance with Section 1.2(b)
of the Prior Rights Agreement as if the Holders under this Agreement were
"Holders" thereunder.
(b) provided that the Amendment has not been approved in accordance
with Section 1.2 above, in connection with a Demand Registration, if the
underwriter advises the Initiating Holders (as defined in the Prior Rights
Agreement) in writing that marketing factors require a limitation of the number
of shares to be underwritten, then the number of shares of Registrable
Securities that may be included in the underwriting shall be reduced to the
extent that such reduction is necessary so that the number of VeriSign
securities registrable in such registration under Section 1.2 of the Prior
Rights Agreement is not reduced, and any remaining Registrable Securities
registrable in such registration shall be allocated among the Holders thereof in
proportion (as nearly as practicable) to the amount of Registrable Securities
owned by all Holders.
(c) in connection with an underwritten Company Registration, if the
total amount of securities, including Registrable Securities, requested by
stockholders to be included in such offering exceeds the amount of securities
sold other than by VeriSign that the underwriters determine in their sole
discretion is compatible with the success of the offering, then VeriSign shall
be required to include in the offering only that number of such securities,
including Registrable Securities, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among the selling stockholders according to
the total amount of securities entitled to be included therein owned by each
selling stockholder or in such other proportions as shall mutually be agreed to
by such selling stockholders); provided that in no event shall the amount of
securities sold by the selling Holders included in the offering be reduced below
five percent (5%) of the total amount of securities included in such offering.
1.4 Reporting. With a view to making available to the Holders the
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benefits of certain rules and regulations of the SEC which may permit the sale
of the Registrable Securities to the public on Form S-3 or without registration,
VeriSign agrees to use its best efforts to:
(a) At all times make and keep public information available, as those
terms are understood and defined in SEC Rule 144 under the Act and Item I.A.3 of
Form S-3 or any similar or analogous rule or form;
(b) File with the SEC, in a timely manner, all reports and other
documents required of VeriSign under the Act and 1934 Act; and
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(c) So long as the Holders own any Registrable Securities, furnish to
any Holder forthwith upon written request: a written statement by VeriSign as to
its compliance with the reporting requirements of said Rule 144 of the Act and
of the 1934 Act; a copy of the most recent annual or quarterly report of
VeriSign; and such other reports and documents as such Holder may reasonably
request in availing itself of any rule or regulation of the SEC allowing it to
sell any such securities without registration.
1.5 Form S-3 Shelf Registration.
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1.5.1 Filing and Registration Period. In the event that,
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following January 30, 1999, VeriSign receives a written request from a Holder
that VeriSign effect a Registration on Form S-3 and any related qualification or
compliance with respect to Registrable Securities held by such Holder, then as
soon as practicable thereafter, and consistent with the requirements of
applicable law, VeriSign shall prepare and file with the SEC a registration
statement on Form S-3 for an offering to be made on a continuous basis pursuant
to Rule 415 (the "SHELF REGISTRATION"). In the event that VeriSign has not
effected a Piggyback Registration prior to January 30, 1999, the Shelf
Registration shall cover fifty percent of the Registrable Securities then
outstanding. In the event that a Piggyback Registration covering all or part of
the Piggyback Registrable Portion has been effected prior to such date, the
Shelf Registration shall cover (i) twenty five percent (25%) of the Registrable
Securities outstanding as of the Effective Date, and (ii) that number of
Registrable Securities consisting of the Piggyback Registrable Portion remaining
unsold by the Holders as of January 30, 1999. The amount of Registrable
Securities covered by the Shelf Registration shall be hereinafter referred to as
the "FORM S-3 REGISTRABLE PORTION." VeriSign shall use its best efforts to have
such Shelf Registration declared effective as soon as practicable after its
filing and to keep the Shelf Registration effective under the Act for a
continuous period of time (such period of time being hereinafter called the
"REGISTRATION PERIOD") commencing on the date the Shelf Registration is declared
effective under the Act by the SEC (the "DATE OF EFFECTIVENESS") and ending on
the first (1st) anniversary of the Effective Time. VeriSign shall have no duty
or obligation to keep the Shelf Registration (or any Subsequent Registration, as
defined below) effective after the expiration of the Registration Period.
1.5.2 Subsequent Registration. If the Shelf Registration or a
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Subsequent Registration (as defined below) ceases to be effective for any reason
at any time during its Registration Period, then VeriSign shall use its best
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall, within 15 days of such cessation
of effectiveness, file an amendment to the Shelf Registration seeking to obtain
the withdrawal of the order suspending the effectiveness thereof, or file an
additional "shelf" registration statement pursuant to Rule 415 covering all of
the then outstanding Form S-3 Registrable Portion (a "SUBSEQUENT REGISTRATION").
If a Subsequent Registration is filed, VeriSign shall use its best efforts to
cause the Subsequent Registration to be declared effective as soon as
practicable after such filing and to keep such registration statement
continuously effective until the end of the Registration Period.
1.5.3 Supplements and Amendments. Subject to the provisions of
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Section 1.5.7, VeriSign shall supplement and amend the Shelf Registration if, as
and when required by the Act,
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the rules and regulations promulgated thereunder or the rules, regulations or
instructions applicable to the registration form used by VeriSign for such Shelf
Registration.
1.5.4 Timing and Manner of Sales. Any sale of Registrable
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Securities pursuant to the Shelf Registration hereunder may be made only during
a "Permitted Window" (as defined in Section 1.5.7 below). In addition, any sale
of Registrable Securities pursuant to the Shelf Registration may only be made in
accordance with the method or methods of distribution of such Registrable
Securities as described in the registration statement for the Shelf Registration
(or Subsequent Registration, as applicable), which methods of distribution will
be specified by the Holders in their Notice of Resale (as defined below). A
Holder may also sell Registrable Securities in a bona fide private offering if
the selling Holder provides VeriSign with a written opinion of counsel,
reasonably satisfactory to counsel to VeriSign, that such offer and sale is an
exempt transaction under the Act and applicable state securities laws, complies
with all requirements for such exemption(s) and is not made with use of the
prospectus for the Shelf Registration (or Subsequent Registration, is
applicable).
1.5.5 Trading Limits. Commencing upon the Date of Effectiveness,
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during any consecutive three month period in the Registration Period, the
Shareholders, collectively, may not sell an amount of Registrable Securities
pursuant to the Shelf Registration Statement that, in the aggregate, exceeds the
greater of (i) one percent (1%) of the outstanding shares of VeriSign Common
Stock (as indicated in VeriSign's then most recent published report), or (ii)
the average weekly reported volume of trading in VeriSign Common Stock on Nasdaq
during the four calendar weeks prior to the date of execution of the sale of
Registrable Securities. Such volume limitations shall be allocated pro rata
among the Shareholders.
1.5.6 Notice of Resale. Before a Holder may make any sale,
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transfer or other disposition of any Registrable Securities during the
Registration Period, such Holder must first give written notice to VeriSign (a
"NOTICE OF RESALE") of such Holder's present intention to sell, transfer or
otherwise dispose of some or all of such Holder's Registrable Securities, and
the number of Registrable Securities such Holder proposes to sell, transfer or
otherwise dispose of. In addition, a Notice of Resale shall contain the
information required to be included therein under Section 1.5.4 and Section
1.5.7.
1.5.7 Permitted Window; Sale Procedures.
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(i) A "PERMITTED WINDOW" is a period of twenty (20)
consecutive calendar days commencing upon VeriSign's written notification to the
Shareholders in response to a Notice of Resale that the prospectus contained in
the Form S-3 registration statement filed pursuant to this Agreement is
available to be used for resales of Registrable Securities pursuant to the Shelf
Registration (or a Subsequent Registration, as applicable).
(ii) Before a Holder can make a sale of any Registrable
Securities, and in order to cause a Permitted Window to commence, a Holder or
Holders of Registrable Securities must first give VeriSign a Notice of Resale
indicating such Holder's or Holders' intention to sell Registrable Securities
pursuant to the Shelf Registration (or Subsequent Registration, as applicable).
A Holder is not required to sell any Registrable Securities
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notwithstanding the giving of a Notice of Resale by such Holder and a Holder may
give Notices of Resale from time to time hereunder during the Registration
Period.
(iii) Upon receipt of such Notice of Resale (unless, a
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certificate of the President or the Chief Financial Officer of VeriSign is
delivered as provided in Section 1.6.2 below), VeriSign will give written notice
to the Holder or Holders who gave such Notice of Resale as soon as practicable,
but in no event more than seven (7) business days after VeriSign's receipt of
such Notice of Resale that either: (a) the prospectus contained in the
registration statement for the Shelf Registration (or Subsequent Registration,
if applicable) is current (it being acknowledged that it may be necessary for
VeriSign during this period to supplement the prospectus or make an appropriate
filing under the 1934 Act so as to cause the prospectus to become current) and
that the Permitted Window will commence on the date of such notice by VeriSign;
or (b) that VeriSign is required under the Act and the regulations thereunder to
amend the registration statement in order to cause the prospectus to be current.
In the event that VeriSign determines that an amendment to the registration
statement is necessary as provided above, it will promptly file and use its best
efforts to cause such amendment to become effective as soon as practicable;
whereupon it will notify the Shareholders that the Permitted Window will then
commence.
1.5.8 Trading Window Compliance. The Shareholders acknowledge
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that VeriSign maintains an Xxxxxxx Xxxxxxx Compliance Program and an Xxxxxxx
Xxxxxxx Policy, as such may be amended (the "VERISIGN TRADING POLICY") and that
the VeriSign Trading Policy requires that those directors, officers, employees
and other persons whom VeriSign reasonably determines to be "Access Persons" or
otherwise subject to the "trading window" and pre-clearance requirements of the
VeriSign Trading Policy (and members of their immediate families and households)
are permitted to effect trades in VeriSign securities: (i) only during those
specified time periods ("TRADING WINDOWS") in which such persons are permitted
to make sales, purchases or other trades in VeriSign's securities under the
"trading window" provisions of the VeriSign Trading Policy; and (ii) only after
pre-clearance of such sales, purchases or other trades with VeriSign's
Compliance Officer (as defined in the VeriSign Trading Policy). If a Holder is
or becomes subject to the "trading window" and/or "pre-clearance" provisions of
the VeriSign Trading Policy described above, then, notwithstanding anything
herein to the contrary (including without limitation the provisions of Section
1.5.7), such Holder may sell, transfer and dispose of Registrable Securities
only during those trading windows during which such VeriSign Access Persons are
permitted to effect trades in VeriSign stock under the VeriSign Trading Policy
and only after pre-clearing such trades with VeriSign's Compliance Officer as
provided in the VeriSign Trading Policy. When and if applicable, VeriSign shall
notify Holders in writing of the commencement or expiration of each trading
window not clearly scheduled pursuant to the VeriSign Trading Policy within at
least one (1) trading day prior to the commencement or expiration of such
trading window, as applicable.
1.6 Limitations. Notwithstanding the provisions of Section 1.5 above,
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VeriSign shall not be obligated to effect any such registration, qualification
or compliance of Registrable Securities pursuant to this Agreement, or the
Holders shall not be entitled to sell Registrable Securities pursuant to the
registration statement, as applicable:
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(i) if Form S-3 is not then available for such offering by the
Holders;
(ii) if VeriSign shall furnish to the Holders a certificate signed by
the President or Chief Financial Officer of VeriSign stating that, in the good
faith judgment of the Board of Directors of VeriSign, following consultation
with legal counsel, it would be seriously detrimental to VeriSign and its
stockholders for such Permitted Window to be in effect at such time, due, for
example, to the existence of a material development or potential material
development involving VeriSign which VeriSign would be obligated to disclose in
the prospectus contained in the Shelf Registration, which disclosure would, in
the good faith judgment of the Board of Directors of VeriSign, be premature or
otherwise inadvisable at such time or would have a material adverse affect upon
VeriSign and its stockholders, in which event VeriSign will have the right to
defer a Permitted Window for a period of not more than forty five (45) days
after receipt of a Notice of Resale from the Holder or Holders pursuant to
Section 1.5; provided, however, that VeriSign may so postpone a Permitted Window
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no more than twice during the Registration Period; and provided further, that if
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VeriSign so postpones a Permitted Window, then notwithstanding the last sentence
of Section 1.5.1, the Registration Period of the Shelf Registration shall be
extended by a period of time equal to the period of postponement (subject to the
provisions of Sections 1.7 and 1.13 below).
(iii) if VeriSign is acquired and its Common Stock ceases to be
publicly traded; or
(iv) in any particular jurisdiction in which VeriSign would be
required to qualify to do business or to execute a general consent to service of
process in effecting such registration, qualification or compliance, unless
VeriSign is already subject to service of process in such jurisdiction.
1.7 Shares Otherwise Eligible for Resale. Notwithstanding anything
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herein to the contrary, VeriSign shall not be obligated to effect or continue to
keep effective any such registration, registration statement, qualification or
compliance of Registrable Securities held by any particular Holder:
(a) if VeriSign or its legal counsel shall have received a "no-action"
letter or similar written confirmation from the SEC that all the Registrable
Securities then held by such Holder may be resold by such Holder within a three
(3) month period without registration under the Act pursuant to the provisions
of Rule 144 promulgated under the Act (or successor provisions), or otherwise;
(b) if legal counsel to VeriSign shall deliver a written opinion to
VeriSign, its transfer agent and the Holders, in form and substance reasonably
acceptable to VeriSign, to the effect that all the Registrable Securities then
held by such Holder may be resold by such Holder within a three (3) month period
without registration under the Act pursuant to the provisions of Rule 144
promulgated under the Act, or otherwise; or
(c) after expiration or termination of the Registration Period.
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1.8 Expenses. VeriSign shall pay all expenses incurred by VeriSign
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in connection with the Shelf Registration and any Subsequent Registration
(excluding brokers' discounts and commissions), including without limitation all
filing, registration and qualification, printers', legal and accounting fees.
1.9 Obligations of VeriSign. Subject to Sections 1.5, 1.6 and 1.7
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above, when required to effect the registration of any Registrable Securities
under the terms of this Agreement, VeriSign will, as expeditiously as reasonably
possible:
(i) furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus (and amendments or supplements thereto), in
conformity with the requirements of the Act, and such other documents as they
may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by them;
(ii) use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as will be reasonably requested by the Holders,
provided that VeriSign will not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such state or jurisdiction unless VeriSign is already
so qualified or subject to service of process, respectively, in such
jurisdiction; and
(iii) promptly notify each Holder of Registrable Securities
covered by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Act, of the happening of any event
known to VeriSign's Chief Executive Officer as a result of which the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing.
1.10 Furnish Information. It shall be a condition precedent to the
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obligations of VeriSign to take any action pursuant to this Agreement that the
selling Holders will furnish to VeriSign such information regarding themselves,
the Registrable Securities held by them, and the intended method of disposition
of such Registrable Securities as shall be reasonably required to timely effect
the registration of their Registrable Securities.
1.11 Delay of Registration. No Holder will have any right to obtain
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or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
1.12 Indemnification.
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1.12.1. By VeriSign. To the extent permitted by law, VeriSign will
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indemnify, defend and hold harmless each Holder against any losses, claims,
damages, or liabilities (joint or several) to which such Holder may become
subject under the Act, the 1934 Act or other U.S. federal or state law, insofar
as such losses, claims, damages, or liabilities (or actions in respect
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thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "VIOLATION"):
(i) any untrue statement or alleged untrue statement of a material
fact contained in a registration statement filed by VeriSign pursuant to this
Agreement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto;
(ii) the omission or alleged omission to state in such registration
statement, preliminary prospectus or final prospectus or any amendments or
supplements thereto, a material fact required to be stated therein, or necessary
to make the statements therein not misleading; or
(iii) any violation or alleged violation by VeriSign of the Act, the
1934 Act, any U.S. federal or state securities law or any rule or regulation
promulgated under the Act, the 1934 Act or any U.S. federal or state securities
law in connection with the offering covered by such registration statement;
provided however, that the indemnity agreement contained in this subsection
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1.12.1 shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of VeriSign (which consent shall not be unreasonably withheld), nor shall
VeriSign be liable to a Holder in any such case for any such loss, claim,
damage, liability or action to the extent that it arises out of or is based upon
a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
such Holder.
1.12.2 By Selling Holders. To the extent permitted by law, each
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selling Holder will indemnify and hold harmless VeriSign, each of its directors,
each of its officers who have signed the registration statement, each person, if
any, who controls VeriSign within the meaning of the Act, any underwriter and
any other Holder selling securities under such registration statement, against
any losses, claims, damages or liabilities (joint or several) to which VeriSign
or any such director, officer, controlling person, underwriter or other such
Holder may become subject under the Act, the 1934 Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder expressly
for use in connection with such registration; and each such Holder will
reimburse VeriSign or any such director, officer, controlling person,
underwriter or other Holder for any legal or other expenses reasonably incurred
by VeriSign or any such director, officer, controlling person, underwriter or
other Holder in connection with investigating or defending any such loss, claim,
damage, liability or action, as incurred; provided, however, that the indemnity
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agreement contained in this subsection 1.12.2 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the indemnifying Holder, which
consent shall not be unreasonably withheld; and provided further that the total
amounts payable in indemnity by a Holder under this subsection 1.12.2 in respect
of any Violation shall
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not exceed the net proceeds received by such Holder in the registered offering
out of which such Violation arises.
1.12.3 Notice. Promptly after receipt by an indemnified party
------
under this Section 1.12 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim for
indemnification or contribution in respect thereof is to be made against any
indemnifying party under this Section 1.12, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
and control the defense thereof with counsel mutually satisfactory to the
parties; provided, however, that: (i) VeriSign shall also have the right, at
-------- -------
its option, to assume and control the defense of any action with respect to
which VeriSign or any person entitled to be indemnified by the selling Holders
under Section 1.12.2 is entitled to indemnification from the selling Holders;
and (ii) an indemnified party shall have the right to retain its own counsel,
with the fees and expenses of such counsel to be paid by the indemnifying party,
if representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential conflict of
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure of an indemnified party to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to the ability of the
indemnifying party to defend such action, shall relieve such indemnifying party
of any liability to the indemnified party under this Section 1.12, but the
omission so to deliver written notice to the indemnifying party will not relieve
the indemnifying party of any liability that it may have to any indemnified
party otherwise than under this Section 1.12.
1.12.4 Defect Eliminated in Final Prospectus. The foregoing
-------------------------------------
indemnity agreements of VeriSign and the Holders are subject to the condition
that, insofar as they relate to any Violation made in a preliminary prospectus
but eliminated or remedied in the amended or supplemented prospectus on file
with the SEC and effective at the time the sale of Registrable Securities under
such registration statement occurs (the "AMENDED PROSPECTUS"), such indemnity
agreement shall not inure to the benefit of any person if a copy of the Amended
Prospectus was furnished to the indemnified party and was not furnished to the
person asserting the loss, liability, claim or damage, at or prior to the time
such action is required by the Act.
1.12.5 Contribution. In order to provide for just and equitable
------------
contribution to joint liability under the Act in any case in which either (i)
any Holder exercising rights under this Agreement makes a claim for
indemnification pursuant to this Section 1.12 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 that this Section 1.12 provides for indemnification in such case, or (ii)
contribution under the Act may be required on the part of any such selling
Holder in circumstances for which indemnification is provided under this Section
1.12; then, and in each such case, VeriSign and such Holder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such Holder
is responsible for the portion represented by the percentage that the public
offering price of its Registrable Securities offered by and sold by
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such Holder under the registration statement bears to the public offering price
of all securities offered by and sold under such registration statement, and
VeriSign and other selling Holders are 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
Registrable Securities offered and sold by such Holder pursuant to such
registration statement; and (b) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) will be
entitled to contribution from any person or entity who was not guilty of such
fraudulent misrepresentation.
(f) Survival. The obligations of VeriSign and Holders under this
--------
Section 1.12 shall survive the completion of any offering of Registrable
Securities in a registration statement pursuant to this Agreement, and
otherwise.
1.13 Duration and Termination of VeriSign's Obligations. VeriSign
--------------------------------------------------
will have no obligations under this Agreement with respect to any Notice of
Resale or other request or requests for registration (or inclusion in a
registration) made by any Holder or to maintain or continue to keep effective
any registration or registration statement pursuant hereto: (a) after the
expiration or termination of the Registration Period; (b) if, in the opinion of
counsel to VeriSign, all such Registrable Securities proposed to be sold by such
Holder may be sold in a three (3) month period without registration under the
Act pursuant to Rule 144 promulgated under the Act or otherwise; or (c) if all
Registrable Securities have been registered and sold pursuant to registrations
effected pursuant to this Agreement and/or have been transferred in transactions
in which registration rights hereunder have not been assigned in accordance with
this Agreement.
1.14 Pooling Restrictions. Notwithstanding anything herein to the
--------------------
contrary, no Shareholder (or such Shareholder's assigns) will sell any
Registrable Securities (whether pursuant to a registration or otherwise) until
after VeriSign has publicly released a report including financial statements of
VeriSign that include at least thirty (30) days of post-Merger combined
operating results of VeriSign and the Company.
1.15 Acknowledgment of Other Agreements. The Holders acknowledge that
----------------------------------
the Prior Rights Holders pursuant to the Prior Rights Agreement currently hold
certain S-3 and other registration rights that may enable such Prior Rights
Holders to sell shares of VeriSign Common Stock during one or more Permitted
Windows or at other times (thus potentially adversely affecting the receptivity
of the market to the sale of the Registrable Securities pursuant to the Shelf
Registration) and that the Prior Rights Holders hold "piggyback registration
rights" that may allow them to participate in a registration effected pursuant
to this Agreement.
1.16 "Market Stand-Off Agreement. Each Shareholder hereby agrees
---------------------------
that, during the period of duration specified by VeriSign and an underwriter of
Common Stock or other securities of VeriSign, following the effective date of a
registration statement of VeriSign filed under the 1933 Act, it shall not, to
the extent requested by VeriSign and such underwriter, directly or indirectly
sell, offer to sell, contract to sell (including, without limitation short
sale), grant any option to purchase or otherwise transfer of dispose of (other
than to donees or other transferees pursuant to contractual obligations
outstanding at the time of such request, provided such donees or transferees
agree to be similarly bound) any securities of VeriSign held by it at
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any time during such period except Common Stock included in such registration;
provided, however, that:
-------- -------
(i) such agreement shall not exceed one hundred and eighty (180) days,
unless such registration is a Demand Registration in which case such period will
be one hundred and twenty (120) days; and
(ii) all officers and directors of VeriSign and all other persons with
registration rights (whether or not pursuant to this Agreement) enter into
similar agreements or VeriSign imposes stock transfer restrictions on such
persons' shares pursuant to the following paragraph
and provided further that the foregoing market standoff agreement
-------- -------
shall not be applicable to a Shareholder holding less than 50,000 shares of
Registrable Securities following the first anniversary of this Agreement.
In order to enforce the foregoing covenant, VeriSign may impose stop-
transfer instructions with respect to the Registrable Securities of each
Shareholder (and the shares or securities of every other person subject to the
foregoing restriction) until the expiration of such period.
This market standoff agreement shall terminate upon the termination of
all registration rights granted under the Prior Rights Agreement.
2. ASSIGNMENT
Notwithstanding anything herein to the contrary, the rights of a Holder
under this Agreement may be assigned (in whole or in part) only with VeriSign's
express prior written consent, which may be withheld in VeriSign's sole
discretion; provided, however, that the rights of a Holder under this
-------- -------
Agreement may be assigned without VeriSign's express prior written consent: (a)
to a Permitted Assignee (as defined below); or (b) (if applicable) by will or by
the laws of intestacy, descent or distribution, provided that the assignee
--------
agrees in writing to be bound by all the obligations of the Holders under this
Agreement. Any attempt to assign any rights of a Holder under this Agreement
without VeriSign's express prior written consent in a situation in which such
consent is required by this Section shall be null and void and without effect.
Subject to the foregoing restrictions, all rights, covenants and agreements in
this Agreement by or on behalf of the parties hereto will bind and inure to the
benefit of the respective permitted successors and assigns of the parties
hereto. Each of the following parties are "PERMITTED ASSIGNEES" for purposes of
this Section: (a) a trust whose beneficiaries consist solely of a Holder and
such Holder's immediate family; and (b) the personal representative, custodian
or conservator of a Holder, in the case of the death, bankruptcy or adjudication
of incompetency of that Holder, (c) immediate family members of a Holder, and
(d) in the case of Xxxxxx X. Xxxxxxxx and P. Xxxxx Xxxxxxxx, to Xxxxxxxx Xxxx in
connection with a resolution of the Xxxx Litigation.
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3. GENERAL PROVISIONS
3.1 Notices. Unless otherwise provided, all notices, instructions
-------
and other communications required or permitted to be given hereunder or
necessary or convenient in connection herewith must be in writing and shall be
deemed delivered (i) when personally served or when delivered by telex or
facsimile (to the telex or facsimile number of the person to whom the notice is
given), (ii) the first business day following the date of deposit with an
overnight courier service or (iii) on the earlier of actual receipt or the third
business day following the date on which the notice is deposited in the United
States mail, first class certified, postage prepaid, addressed as follows: (a)
if to VeriSign, at 0000 Xxxxxxxxx Xxx, Xxxxxxxx Xxxx, XX 00000, Attention: Chief
Financial Officer, Facsimile Number: (000) 000-0000; and (b) if to a
Shareholder, at such Shareholder's respective address as set forth on Exhibit A
---------
hereto. Any party hereto (and such party's permitted assigns) may by notice so
given change its address for future notices hereunder.
3.2 Entire Agreement. This Agreement and the provisions of Section 1.7
----------------
of the Plan constitute and contain the entire agreement and understanding of
the parties with respect to the subject matter hereof and supersedes any and all
prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties with respect to the subject matter hereof.
3.3 Amendment of Rights. Any provision of this Agreement may be amended
-------------------
and the observance thereof may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of VeriSign and Holders of a majority of all Registrable Securities then
outstanding. Any amendment or waiver effected in accordance with this Section
3.3 shall be binding upon each Holder, each permitted successor or assignee of
such Holder and VeriSign.
3.4 Binding Effect of Agreement. The terms of this Agreement shall
---------------------------
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
3.5 Governing Law. This Agreement will be governed by and construed
-------------
exclusively in accordance with the internal laws of the State of California
(excluding that body of law relating to conflict of laws and choice of law) and
applicable federal law.
3.6 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, then such provision(s) will be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and will be enforceable in
accordance with its terms.
3.7 No Third Party Beneficiaries. Nothing in this Agreement, express
----------------------------
or implied, is intended to confer upon any person, other than the parties hereto
and their successors and assigns, any rights or remedies under or by reason of
this Agreement.
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3.8 Captions. The headings and captions to sections of this Agreement
--------
have been inserted for identification and reference purposes only and will not
be used to construe or interpret this Agreement.
3.9 Counterparts. This Agreement may be executed in counterparts,
------------
each of which will be deemed an original, but all of which together will
constitute one and the same instrument.
3.10 Effectiveness of Agreement. Regardless of when signed, this
--------------------------
Agreement will not become effective or binding unless and until the Effective
Time of the Merger.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the Effective Date.
VERISIGN, INC. THE SHAREHOLDERS
By: /s/ Xxxxxxxx Xxxxxxx /s/ Xxxxxx Xxxxxxxx
----------------------- ---------------------------
Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
---------------------------
/s/ P. Xxxxx Xxxxxxxx
---------------------------
P. Xxxxx Xxxxxxxx
/s/ Xxx X. Xxxxxxx
---------------------------
Xxx X. Xxxxxxx
/s/ Xxxxxx Xxxxxxx
---------------------------
Xxxxxx and Xxxx Xxxxxxx Foundation
/s/ Xxxxxx Xxxx
---------------------------
Xxxxxx Xxxx, Trustee for the Benefit of
P. Xxxxx Xxxxxxxx and Xxxxxx Deep
Xxxxxxxx under Trust Agreement dated
1/17/97
/s/ Xxxxxx Xxxx
---------------------------
Xxxxxx Xxxx, Trustee for the Benefit of
P. Xxxxx Xxxxxxxx and Yash Xxxx Xxxxxxxx
under Trust Agreement dated 1/17/97
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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/s/ Xxxxxx Xxxx
---------------------------
Xxxxxx Xxxx, Trustee for the Benefit of
P. Xxxxx Xxxxxxxx and Xxxxx Xxxxx
Xxxxxxxx under Trust Agreement dated
1/17/97
/s/ Xxxxxx Xxxx
---------------------------
Xxxxxx Xxxx, Trustee for the Benefit of
Xxxxxxxx Xxxxx under Trust Agreement
dated 1/19/97
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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EXHIBIT A
---------
LIST OF SHAREHOLDERS
NUMBER OF SHARES OF VERISIGN
NAME AND ADDRESS COMMON STOCK HELD
---------------- ----------------------------
Xxxxxx X. Xxxxxxxx 210,951
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile No: (000) 000-0000
P. Xxxxx Xxxxxxxx 1,071,239
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Xxx X. Xxxxxxx 100,531
[Address]
Facsimile No.:_______________
Xxxxxx and Xxxx Xxxxxxx Foundation 82,403
00000 Xxxxx Xx Xxxxxx
Xx Xxxxxx, XX 00000
Xxxxxx Xxxx, Trustee for the Benefit of 65,922
P. Xxxxx Xxxxxxxx and Xxxxxx Deep
Xxxxxxxx under Trust Agreement dated 1/17/98
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000]
Xxxxxx Xxxx, Trustee for the Benefit of 65,922
P. Xxxxx Xxxxxxxx and Yash Xxxx Xxxxxxxx
under Trust Agreement dated 1/17/98
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
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Xxxxxx Xxxx, Trustee for the Benefit of 65,922
P. Xxxxx Xxxxxxxx and Samir Xxxxx Xxxxxxxx
under Trust Agreement dated 1/17/98
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxx, Trustee for the Benefit of 3,296
Xxxxxxxx Xxxxx under Trust Agreement
dated 1/19/98
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
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