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EXHIBIT 9.1
SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT (the "Agreement") is made as of March 18,
1998 by and among CyberSource Corporation, a California corporation (the
"Company") (only with respect to Section 3 of the Agreement) with its principal
office at 0000 Xxxxx Xxx, Xxxxx 000, Xxx Xxxx, XX 00000, and the holders of the
Company's Series C Preferred Stock and Series D Preferred Stock listed on the
signature pages attached hereto (each individually an "Investor," and
collectively, the "Investors").
RECITALS
A. Pursuant to that certain Series C Preferred Stock Purchase Agreement,
dated as of September 26, 1997, certain of the Investors purchased shares of the
Company's Series C Preferred Stock (the "Series C Preferred").
B. Concurrently with the execution and delivery of this Agreement,
certain of the Investors are purchasing shares of the Company's Series D
Preferred Stock (the "Series D Preferred") pursuant to that certain Series D
Preferred Stock Purchase Agreement.
C. The Investors wish to agree among themselves as to the designation of
the person to be elected to the Board (as set forth in the Fourth Amended and
Restated Articles of Incorporation of the Company (the "Articles") by the
holders of the Company's Series C and Series D Preferred Stock, and to set forth
their agreements and understandings with respect to certain other matters, as
set forth herein.
AGREEMENT
NOW, THEREFORE, the parties hereby agree as follows:
1. Shares Subject to Agreement. Each Investor agrees to hold all of its
shares of Series C Preferred, Series D Preferred and any Common Stock issuable
upon conversion thereof (hereinafter referred to as the "Voting Shares") subject
to, and to vote such Voting Shares in accordance with, the provisions of this
Agreement.
2. Board of Directors. Each time the shareholders of the Company meet or
act by written consent in lieu of meeting in accordance with the California
Corporations Code for the purpose of electing directors, each of the Investors
agrees to vote its Voting Shares in a manner that would elect as the director
designated by holders of the Series C Preferred and Series D Preferred (the
"Series C/D Director") the person designated (the "GRP Designee") by Global
Retail Partners, L.P. (together with its affiliates, "GRP"). Each of the
Investors also agrees to vote its Voting Shares in a manner that (i) at GRP's
request, would remove and replace the Series C/D Director with a new GRP
Designee and (ii) in the event of a vacancy in the Series C/D Director, fill
such vacancy with a new GRP Designee.
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(a) Termination. This Agreement shall terminate upon the closing of
an Initial Registered Public Offering (as defined in the Articles).
3. Successors in Interest.
(a) The provisions of this Agreement shall be binding upon the
successors in interest to any of the Voting Shares. The Company shall not permit
the transfer of any of the Voting Shares on its books or issue a new certificate
representing any of the Voting Shares unless and until the person to whom such
security is to be transferred shall have executed a written agreement,
substantially in the form of this Agreement, pursuant to which such person
becomes a party to this Agreement and agrees to be bound by all the provisions
hereof.
(b) Each certificate representing any of the Voting Shares shall be
marked by the Company with a legend reading as follows:
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT (A
COPY OF WHICH MAY BE OBTAINED FROM THE ISSUER) AND BY ACCEPTING
ANY INTEREST IN SUCH SHARES THE PERSON SHALL BE DEEMED TO AGREE
TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SAID VOTING
AGREEMENT."
4. Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party, other than the parties hereto, and their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
5. Authority. Each party hereto represents and warrants that this
Agreement has been duly authorized, executed and delivered on behalf of such
party.
6. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements entered into
and performed in the State of California solely by residents thereof.
7. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed effective (i) upon personal
delivery or upon delivery by confirmed facsimile or electronic transmission
(with duplicate original sent by United States mail), (ii) if sent by overnight
courier, one (1) business day after deposit with the overnight courier service,
or (iii) if sent by United States mail, three (3) business days after deposit
with the United States Post Office, by registered or certified mail, postage
prepaid, and addressed (a) if to an Investor, at such Investor's address set
forth in the Series D Stock Purchase Agreement, or at such other address as such
Investor shall have furnished to the Company in writing, or (b) if to
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the Company, at the address set forth on the first page of this Agreement
addressed to the attention of the Corporate Secretary, or at such other address
as the Company shall have furnished to the Investors.
9. Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, portions of such provisions, or such
provisions in their entirety, to the extent necessary, shall be severed from
this Agreement, and the balance of this Agreement shall be enforceable in
accordance with its terms.
10. Amendment and Waiver. Any provision of this Agreement may be amended
with the written consent of GRP and a majority in interest of the other
Investors. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each Investor and the Company.
11. Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any party to this Agreement, upon any breach or
default of the other party, shall impair any such right, power or remedy of such
non breaching party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on he part of any party of any provisions or conditions
of this Agreement, must be made in writing and shall be effective only to the
extent specifically set forth in such writing. All remedies, either under this
Agreement, or by law or otherwise afforded to any holder, shall be cumulative
and not alternative.
12. Entire Agreement. This Agreement contains the entire agreement among
the parties with respect to the transactions contemplated by this Agreement and
supersede all prior agreements or understandings among the parties. The Series C
Shareholders Agreement, dated September 26, 1997, is expressly superseded, void
and no longer of any force or effect.
(Remainder of this page intentionally left blank)
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IN WITNESS WHEREOF, the parties have executed this Shareholders
Agreement as of the date first written above.
CYBERSOURCE CORPORATION, a California VULCAN VENTURES INCORPORATED
corporation
By: /s/ XXXXXXX X. XXXXX
--------------------------------
By: /s/ XXXXXXX X. XXXXXXXXX Name: Xxxxxxx X. Xxxxx
----------------------------- -----------------------------
Name: Xxxxxxx X. XxXxxxxxx Title: Vice President
-------------------------- -----------------------------
Title: President & CEO
--------------------------
GLOBAL RETAIL PARTNERS, L.P.
By: GLOBAL RETAIL PARTNERS, INC.
General Partner
By:
--------------------------------
Name:
------------------------------
Its:
-------------------------------
GLOBAL RETAIL PARTNERS FUNDING, INC.
By:
--------------------------------
Name:
------------------------------
Its:
-------------------------------
GRP PARTNERS, L.P.
By: GLOBAL RETAIL PARTNERS, INC.
General Partner
By:
--------------------------------
Name:
------------------------------
Its:
-------------------------------
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IN WITNESS WHEREOF, the parties have executed this Shareholders
Agreement as of the date first written above.
CYBERSOURCE CORPORATION, a California VULCAN VENTURES INCORPORATED
corporation
By:
--------------------------------
By: Name:
----------------------------- -----------------------------
Name: Title:
-------------------------- -----------------------------
Title:
--------------------------
GLOBAL RETAIL PARTNERS, L.P.
By: GLOBAL RETAIL PARTNERS, INC.
General Partner
By: /s/ XXXXX XXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxx
------------------------------
Its: Vice President
-------------------------------
GLOBAL RETAIL PARTNERS FUNDING, INC.
By: /s/ XXXXX XXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxx
------------------------------
Its: Vice President
-------------------------------
GRP PARTNERS, L.P.
By: GLOBAL RETAIL PARTNERS, INC.
General Partner
By: /s/ XXXXX XXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxx
------------------------------
Its: Vice President
-------------------------------
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DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ DIVERSIFIED PARTNERS, INC.
General Partner
By: /s/ XXXXX XXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxx
------------------------------
Its: Vice President
-------------------------------
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ DIVERSIFIED PARTNERS, INC.
General Partner
By: /s/ XXXXX XXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxx
------------------------------
Its: Vice President
-------------------------------
DLJ FIRST ESC, L.P.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION, General Partner
By: /s/ XXXXX XXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxx
------------------------------
Its: Vice President
-------------------------------
DLJ ESC II, L.P.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION, General Partner
By: /s/ XXXXX XXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxx
------------------------------
Its: Vice President
-------------------------------
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UH TECHNOLOGY PARTNERS, LDC
By: [SIG]
-----------------------------------------
General Partner of its Investment Manager,
Unterberg Harris Capital Management, LP
UH CAPITAL PARTNERS INTERNATIONAL, LDC
By: [SIG]
-----------------------------------------
General Partner of its Investment Manager,
Unterberg Harris Capital Management, XX
XXXXXXXXX XXXXXX PRIVATE EQUITY PARTNERS, LP
By: [SIG]
-----------------------------------------
Member of its Investment General Partner,
Unterberg Harris LLC
UNTERBERG HARRIS PRIVATE EQUITY PARTNERS, CV
By: [SIG]
-----------------------------------------
Member of its Investment General Partner,
Unterberg Harris LLC
RAINBOW TRADING PARTNERS, LTD.
By:
-----------------------------------------
Name:
---------------------------------------
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UH TECHNOLOGY PARTNERS, LDC
By:
-----------------------------------------
General Partner of its Investment Manager,
Unterberg Harris Capital Management, LP
UH CAPITAL PARTNERS INTERNATIONAL, LDC
By:
-----------------------------------------
General Partner of its Investment Manager,
Unterberg Harris Capital Management, XX
XXXXXXXXX XXXXXX PRIVATE EQUITY PARTNERS, LP
By:
-----------------------------------------
Member of its Investment General Partner,
Unterberg Harris LLC
UNTERBERG HARRIS PRIVATE EQUITY PARTNERS, CV
By:
-----------------------------------------
Member of its Investment General Partner,
Unterberg Harris LLC
RAINBOW TRADING PARTNERS, LTD.
By: /s/ XXXXXXXX X. XXXXXX, XX.
-----------------------------------------
Name: Xxxxxxxx X. Xxxxxx, Xx.
---------------------------------------
President
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Its: President
----------------------------------------
RAINBOW TRADING VENTURE PARTNERS, L.P.
By: /s/ XXXXXXXX X. XXXXXX, XX.
-----------------------------------------
Name: Xxxxxxxx X. Xxxxxx, Xx.
---------------------------------------
Its: President
----------------------------------------
WA&H INVESTMENTS, L.L.C.
By: Xxxxxxx, Xxxxxx & Xxxxxxxxx Group, L.L.C. its
managing member
By:
---------------------------------------------
Name:
-------------------------------------------
Its:
--------------------------------------------
WILBLAIRCO ASSOCIATES, L.P.
By:
---------------------------------------------
Name:
-------------------------------------------
Its:
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XXXXXX INDUSTRIES, INC.
By:
---------------------------------------------
Name:
-------------------------------------------
Its:
--------------------------------------------
XXXXXX INC.
By:
---------------------------------------------
Name:
-------------------------------------------
Its:
--------------------------------------------
PACIFIC ASSET PARTNERS
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RAINBOW TRADING VENTURE PARTNERS, L.P.
By:
-----------------------------------------
Name:
---------------------------------------
Its:
----------------------------------------
WA&H INVESTMENTS, L.L.C.
By: Xxxxxxx, Xxxxxx & Xxxxxxxxx Group, L.L.C. its
managing member
By: [SIG]
---------------------------------------------
Name: XXXXXX XXXXX
-------------------------------------------
Its: CFO
--------------------------------------------
WILBLAIRCO ASSOCIATES, L.P.
By:
---------------------------------------------
Name:
-------------------------------------------
Its:
--------------------------------------------
XXXXXX INDUSTRIES, INC.
By:
---------------------------------------------
Name:
-------------------------------------------
Its:
--------------------------------------------
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Its:
----------------------------------------
RAINBOW TRADING VENTURE PARTNERS, L.P.
By:
-----------------------------------------
Name:
---------------------------------------
Its:
----------------------------------------
WA&H INVESTMENTS, L.L.C.
By: Xxxxxxx, Xxxxxx & Xxxxxxxxx Group, L.L.C. its
managing member
By:
---------------------------------------------
Name:
-------------------------------------------
Its:
--------------------------------------------
WILBLAIRCO ASSOCIATES, L.P.
By: /s/ XXXXXXX XXXXXXXX
---------------------------------------------
Name: Xxxxxxx Xxxxxxxx
-------------------------------------------
Its: Partner
--------------------------------------------
XXXXXX INDUSTRIES, INC.
By:
---------------------------------------------
Name:
-------------------------------------------
Its:
--------------------------------------------
XXXXXX INC.
By:
---------------------------------------------
Name:
-------------------------------------------
Its:
--------------------------------------------
PACIFIC ASSET PARTNERS
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By: /s/ XXXXXX X. XXXXXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------------------
Its: General Partner
-------------------------------------
------------------------------------
XXXXXXXX X. XXXXXX, XX.
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By:
---------------------------------------
Name:
-------------------------------------
Its:
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BVP INVESTORS I, L.L.C.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
/s/ XXXXXXXX X. XXXXXX, XX.
------------------------------------
XXXXXXXX X. XXXXXX, XX.
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