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Exhibit 4.2
Registration Rights Agreement
between
ONLINE RESOURCES CORPORATION
and
XXXXXXXXX & COMPANY. INC.
DATED AS OF SEPTEMBER 28, 2000
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REGISTRATION RIGHTS AGREEMENT, dated as of September 28,
2000 between Online Resources Corporation, a Delaware corporation (together
with any successor entity, herein referred to as the "Company"), and Jefferies
& Company, Inc. (the "Placement Agent").
Pursuant to the Placement Agreement, dated September 25,
2000, between the Company and the Placement Agent (the "Placement Agreement"),
the Placement Agent has agreed to act as exclusive placement agent for the
Company for up to $20,000,000 in aggregate principal amount of the Company's
8.0% Convertible Subordinated Notes due 2005 (the "Securities"). The
Securities will be convertible into fully paid, nonassessable shares of common
stock, par value $0.01 per share, of the Company (the "Common Stock") on the
terms, and subject to the conditions, set forth in the Indenture (as defined
herein). The Company has agreed to provide the registration rights set forth
in this Agreement pursuant to Section 5(l) of the Placement Agreement.
The parties hereby agree as follows:
1. Definitions. Capitalized terms used herein without
definition shall have the respective meanings set forth in the Placement
Agreement. As used in this Agreement, the following capitalized terms shall
have the following meanings:
"Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Additional Amounts" has the meaning set forth in Section
2(e) hereof.
"Affiliate" of any specified person means any other person,
directly or indirectly, controlling or controlled by or under direct or
indirect common control with such specified person. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as used with
respect to any person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of
such person, whether through the ownership of voting securities or by
agreement or otherwise.
"Business Day" has the meaning set forth in the Indenture.
"Closing Date" means September 28, 2000.
"Common Stock" means the common stock, par value $0.0001 per
share, of the Company, as it exists on the date of this Agreement and any
other shares of capital stock or other securities of the Company into which
such Common Stock may be reclassified or changed, together with any and all
other securities which may from time to time be issuable upon conversion of
Securities.
"Damages Payment Date" means, with respect to the Securities
or the Common Stock issuable upon conversion thereof, as applicable, each
Interest Payment Date and in the event that any Security, or portion thereof,
is called for redemption or surrendered for purchase by the Company in
accordance with the terms of the Indenture, the relevant Redemption Date or
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Repurchase Date (as both terms are defined in the Indenture), as the case may
be, shall also be a Damages Payment Date with respect to such Security, or
portion thereof, unless the Indenture provides that accrued and unpaid
interest on the Security (or portion thereof) to be redeemed or repurchased,
as the case may be, is to be paid to the person who was the Holder thereof on
a record date prior to such Redemption Date or Repurchase Date, as the case
may be, in which case the Damages Payment Date shall be the date on which
interest is payable to such Record Holder.
"Default Rate" means one-quarter of one percent (25 basis
points) per annum per $1,000 principal amount of Securities and $2.50 per
annum per 210.5 shares of Common Stock (subject to the same adjustments to the
"Conversion Price", as specified in the Indenture) constituting Transfer
Restricted Securities for the first 90 days during which a Registration
Default has occurred and is continuing and one-half of one percent (50 basis
points) per annum per $1,000 principal amount of Securities and $5.00 per
annum per 210.5 shares of Common Stock (subject to adjustment as set forth
above) constituting Transfer Restricted Securities for any additional days
during which a Registration Default has occurred and is continuing.
"DTC" has the meaning set forth in Section 3(k) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Final Maturity Date" means September 30, 2005.
"Holder" means a person who is a holder or beneficial owner
(including the Placement Agent) of any Securities or shares of Common Stock
issued upon conversion of Securities; provided that, unless otherwise
expressly stated herein, only registered holders of Securities or Common Stock
issued on conversion thereof shall be counted for purposes of calculating any
proportion of holders entitled to take any action or give notice pursuant to
this Agreement.
"Indenture" means the Indenture relating to the Securities
dated as of September 28, 2000, between the Company and Bankers Trust Company,
as trustee, as the same may be amended from time to time in accordance with
the terms thereof.
"Initial Placement" means the placement of the Securities by
the Placement Agent pursuant to the Placement Agreement.
"Interest Payment Date" shall mean each October 1 and April
1, commencing April 1, 2000 and ending on the Final Maturity Date.
"Majority Holders" means the Holders of a majority of the
then outstanding aggregate principal amount of Securities registered under a
Shelf Registration Statement; provided, that Holders of Common Stock issued
upon conversion of Securities shall be deemed to be Holders of the aggregate
principal amount of Securities from which such Common Stock was converted; and
provided, further, that Securities or Common Stock which have been sold or
otherwise transferred pursuant to the Shelf Registration Statement shall not
be included in the calculation of Majority Holders.
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"Majority Underwriting Holders" means, with respect to any
Underwritten Offering, the Holders of a majority of the then outstanding
aggregate principal amount of Securities registered under any Shelf
Registration Statement whose Securities are or are to be included in such
Underwritten Offering; provided, that Holders of Common Stock issued upon
conversion of Securities whose shares of Common Stock are or are to be
included in such Underwritten Offering shall be deemed to be Holders of the
aggregate principal amount of Securities from which such Common Stock was
converted.
"Managing Underwriters" means the Underwriter or
Underwriters that shall manage an Underwritten Offering.
"NASD" has the meaning set forth in Section 3(i) hereof.
"Notice and Questionnaire" means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in the form
of Exhibit A hereto.
"Offering Memorandum" means the Final Memorandum as defined
in the Placement Agreement.
"Person" and "person" have the meaning set forth in the
Indenture.
"Placement Agent" has the meaning set forth in the preamble
hereto.
"Placement Agreement" has the meaning set forth in the
preamble hereto.
"Prospectus" means the prospectus included in any Shelf
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Securities or Common Stock
issuable upon conversion thereof covered by such Shelf Registration Statement,
and all amendments and supplements to such prospectus, including all documents
incorporated by reference in such prospectus.
"Record Holder" means (i) with respect to any Damages
Payment Date, each person who is registered on the books of the registrar as
the holder of Securities at the close of business on the record date with
respect to such Damages Payment Date and (ii) with respect to any Damages
Payment Date relating to the Common Stock issued upon conversion thereof, each
person who is a holder of record of such Common Stock fifteen days prior to
the Damages Payment Date.
"Registration Default" has the meaning set forth in Section
2(e) hereof.
"Rule 144" means Rule 144 (or any successor provision) under
the Act.
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning set forth in the preamble
hereto.
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"Shelf Registration" means a registration effected pursuant
to Section 2 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 2(c) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 2 hereof which
covers all of the Securities and the Common Stock issuable upon conversion
thereof, as applicable, on Form S-3 or on another appropriate form for an
offering to be made on a delayed or continuous basis pursuant to Rule 415
under the Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by reference
therein.
"Suspension Period" has the meaning set forth in Section
2(d) hereof.
"Transfer Restricted Securities" means each Security and
each share of Common Stock issued upon conversion thereof until the earlier of
(A) the date on which such Security or share of Common Stock, as the case may
be, (i) has been transferred pursuant to the Shelf Registration Statement or
another registration statement covering such Security or share of Common Stock
which has been filed with the SEC pursuant to the Act, in either case after
such registration statement has become effective and while such registration
statement is effective under the Act, (ii) has been transferred pursuant to
Rule 144 under the Act (or any similar provision then in force) or (iii) may
be sold or transferred pursuant to Rule 144(k) under the Act (or any similar
provision then in force) or (B) the second anniversary of the Closing Date.
"Trustee" means the trustee with respect to the Securities
under the Indenture.
"Underwriter" means any underwriter of or placement agent
for Securities or Common Stock issuable upon conversion thereof in connection
with an offering thereof under a Shelf Registration Statement.
"Underwritten Offering" means an offering in which the
Securities or Common Stock issued upon conversion thereof are sold to an
Underwriter or with the assistance of an Underwriter for reoffering to the
public.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated"
in the Shelf Registration Statement, any preliminary Prospectus or Prospectus
(and all other references of like import) shall be deemed to mean and include
all such financial statements and schedules and other information which is
incorporated by reference in such Shelf Registration Statement, preliminary
Prospectus or Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Shelf Registration Statement,
any preliminary Prospectus or Prospectus shall be deemed to mean and include
the filing of any document under the Exchange Act, after the date of such
Shelf Registration Statement, preliminary Prospectus or Prospectus, as the
case may be, which is incorporated by reference therein.
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2. Shelf Registration Statement.
(a) The Company shall prepare and, not later than 90
days following the Closing Date, shall file with the SEC a Shelf Registration
Statement with respect to resales of the Securities and the Common Stock
issuable upon conversion thereof by the Holders from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement and thereafter shall use its
reasonable best efforts to cause such Shelf Registration Statement to be
declared effective under the Act within 180 days after the Closing Date. The
Company shall supplement or amend the Shelf Registration Statement if required
by the rules, regulations or instructions applicable to the registration form
used by the Company for the Shelf Registration Statement, if required by the
Act, the Exchange Act or the SEC.
(b) (1) Not less than 10 calendar days prior to
the effectiveness of the Shelf Registration Statement, the Company shall mail
the Notice and Questionnaire to the Holders of Securities and Common Stock
issued upon conversion thereof. No Holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement, and no Holder
shall be entitled to use the Prospectus forming a part thereof for resales of
Securities or Common Stock issued upon conversion thereof at any time, unless
such Holder has returned a completed and signed Notice and Questionnaire to
the Company by the deadline for responses set forth therein; provided,
however, that Holders of Securities or Common Stock issued upon conversion
thereof shall have at least 7 calendar days from the date on which the Notice
and Questionnaire is first mailed to such Holders to return a completed and
signed Notice and Questionnaire to the Company.
(2) After the Shelf Registration Statement has
become effective, the Company shall, upon the request of any Holder of
Securities or Common Stock issued or issuable upon conversion thereof that has
not returned a completed Notice and Questionnaire, promptly send a Notice and
Questionnaire to such Holder. The Company shall not be required to take any
action to name such Holder as a selling securityholder in the Shelf
Registration Statement or to enable such Holder to use the Prospectus forming
a part thereof for resales of Securities or Common Stock issued or issuable
upon conversion thereof until such Holder has returned a completed and signed
Notice and Questionnaire to the Company, whereupon the Company will be
required to take such action.
(c) Subject to Section 2(d), the Company shall keep the
Shelf Registration Statement continuously effective under the Act in order to
permit the Prospectus forming part thereof to be usable by all Holders until
the earliest of (i) the second anniversary of the Closing Date (ii) the date
on which all the Securities and Common Stock issued or issuable upon
conversion thereof may be sold by non-Affiliates of the Company pursuant to
paragraph (k) of Rule 144 (or any successor provision) promulgated by the SEC
under the Act, (iii) the date as of which all the Securities and Common Stock
issued or issuable upon conversion thereof have been (A) transferred pursuant
to Rule 144 under the Securities Act (or any similar provision then in force)
or (B) sold pursuant to the Shelf Registration Statement (in any such case,
such period being called the "Shelf Registration Period"). The Company will,
subject to Section 2(d), prepare and file with the SEC such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep the Shelf Registration Statement
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continuously effective for the Shelf Registration Period; subject to Section
2(d), cause the related Prospectus to be supplemented by any required
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provision then in force) under the Act; and, comply in all material
respects with the provisions of the Act with respect to the disposition of all
securities covered by the Shelf Registration Statement during the applicable
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Shelf Registration Statement as so amended or such
Prospectus as so supplemented.
(d) The Company may suspend the use of the Prospectus
for a period not to exceed 45 days in any 90-day period (the "Suspension
Period") for valid business reasons, to be determined by the Company in its
sole reasonable judgment (not including avoidance of the Company's obligations
hereunder), including, without limitation, the acquisition or divestiture of
assets, public filings with the SEC, pending corporate developments and
similar events; provided that the Company promptly thereafter complies with
the requirements of Section 3(j) hereof, if applicable; provided, that the
existence of a Suspension Period will not prevent the occurrence of a
Registration Default or otherwise limit the obligation of the Company to pay
Additional Amounts. The Company shall provide notice to the Holders of a
Suspension Period as required under Section 3(c)(1)(iv) hereof.
(e) If (i) the Shelf Registration Statement is not
filed with the SEC on or prior to 90 days after the Closing Date, (ii) the
Shelf Registration Statement has not been declared effective by the SEC within
180 days after the Closing Date or (iii) the Shelf Registration Statement is
filed and declared effective but shall thereafter cease to be effective
(without being succeeded immediately by a replacement shelf registration
statement filed and declared effective) or usable (including as a result of a
Suspension Period) for the offer and sale of Transfer Restricted Securities
for a period of time (including any Suspension Period) which shall exceed 90
days in the aggregate in any twelve-month period during the period beginning
on the Closing Date and ending on the second anniversary of the Closing Date
(each such event referred to in clauses (i) through (iii), a "Registration
Default"), the Company will pay additional amounts ("Additional Amounts") to
each Holder of Transfer Restricted Securities who has complied with such
Holder's obligations under this Agreement. The amount of Additional Amounts
payable during any period in which a Registration Default has occurred and is
continuing is the amount which is equal to one-quarter of one percent (25
basis points) per annum per $1,000 principal amount of Securities and $2.50
per annum per 210.5 shares of Common Stock (subject to the same adjustments to
the "Conversion Price", as specified in the Indenture) constituting Transfer
Restricted Securities for the first 90 days during which a Registration
Default has occurred and is continuing and one-half of one percent (50 basis
points) per annum per $1,000 principal amount of Securities and $5.00 per
annum per 210.5 shares of Common Stock (subject to adjustment as set forth
above) constituting Transfer Restricted Securities for any additional days
during which a Registration Default has occurred and is continuing; it being
understood that all calculations pursuant to this sentence shall be carried
out to five decimals. Following the cure of a Registration Default, Additional
Amounts will cease to accrue with respect to such Registration Default. All
accrued Additional Amounts shall be paid by wire transfer of immediately
available funds to the accounts specified by the Record Holders or, if a
Record Holder has not specified such an account, by check mailed by the
Company to the registered address of such Record Holder on each Damages
Payment Date and Additional Amounts will be calculated on the basis of a
360-day year consisting of twelve 30-day months.
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In the event that any Additional Amounts are not paid when due, then to the
extent permitted by law, such overdue Additional Amounts, if any, shall bear
interest until paid at the Default Rate, compounded semi-annually. The parties
hereto agree that the Additional Amounts provided for in this Section 2(e)
constitute a reasonable estimate of the damages that may be incurred by
Holders by reason of a Registration Default.
(f) All of the Company's obligations (including,
without limitation, the obligation to pay Additional Amounts) set forth in the
preceding paragraph which are outstanding or exist with respect to any
Transfer Restricted Security at the time such security ceases to be a Transfer
Restricted Security shall survive until such time as all such obligations with
respect to such security shall have been satisfied in full.
(g) Immediately upon the commencement or the
termination of a Registration Default, the Company shall give the Trustee, in
the case of notice with respect to the Securities, and the transfer and paying
agent for the Common Stock, in the case of notice with respect to Common Stock
issued or issuable upon conversion thereof, notice of such commencement or
termination, of the obligation to pay Additional Amounts with regard to the
Securities and Common Stock and the amount thereof and of the event giving
rise to such commencement or termination (such notice to be contained in an
Officers' Certificate (as such term is defined in the Indenture)), and prior
to receipt of such Officers' Certificate the Trustee and such transfer and
paying agent shall be entitled to assume that no such commencement or
termination has occurred, as the case may be.
3. Registration Procedures. In connection with any
Shelf Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to the Placement Agent,
prior to the filing thereof with the SEC, a copy of any Shelf Registration
Statement, and each amendment thereof, a copy of any Prospectus, and each
amendment or supplement, if any, to the Prospectus included therein (excluding
in all cases amendments caused by the filing by the Company with the SEC of a
report required by the Exchange Act) and shall use its reasonable best efforts
to reflect in each such document, when so filed with the SEC, such comments as
the Placement Agent reasonably may propose. The Placement Agent shall promptly
furnish to the Company any comments it may have to such documents mentioned in
the foregoing sentence.
(b) Subject to Section 2(d), the Company shall ensure
that upon the occurrence of any event that (i) would cause any Shelf
Registration Statement, as amended, and any Prospectus forming part thereof,
as amended or supplemented, not to be in compliance as to form in all material
respects with the Act and the rules and regulations thereunder, (ii) would
cause the Shelf Registration Statement, as amended, when it became effective,
to contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or (iii) would cause any Prospectus forming part of any Shelf
Registration Statement, as amended or supplemented, to include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading, the Company shall file promptly an
appropriate amendment to such Shelf Registration Statement or Prospectus, as
the case may be, (A) in the case of clause (i) to place such document in
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compliance as to form in all material respects, and (B) in the case of clauses
(ii) and (iii) to correct any such misstatements or omissions; provided that
the Company makes no representation or agreement with respect to information
with respect to the Placement Agent, any Underwriter or any Holder required to
be included in any Shelf Registration or Prospectus pursuant to the Act or the
rules and regulations thereunder and which information is included therein in
reliance upon and in conformity with information furnished to the Company in
writing by the Placement Agent, any Underwriter or any such Holder.
(c) (1) The Company, as promptly as reasonably
practicable, shall advise the Placement Agent and each Holder that has
returned a completed and signed Notice and Questionnaire to the Company and,
if requested by the Placement Agent or any such Holder, confirm such advice in
writing:
(i) when a Shelf Registration
Statement and any amendment thereto has been filed with the
SEC and when the Shelf Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the SEC for
amendments or supplements to the Shelf Registration
Statement or the Prospectus or for additional information;
(iii) of the determination by the
Company that a post-effective amendment to the Shelf
Registration Statement would be appropriate; and
(iv) of the commencement or
termination of any Suspension Period.
(2) The Company shall advise the Placement
Agent and each Holder that has returned a completed and signed Notice and
Questionnaire to the Company and, if requested by the Placement Agent or any
such Holder, confirm such advice in writing:
(i) of the issuance by the SEC of
any stop order suspending the effectiveness of the Shelf
Registration Statement or the initiation of any proceedings
for that purpose;
(ii) of the receipt by the Company
of any notification with respect to the suspension of the
qualification of the Securities included in any Shelf
Registration Statement for sale in any jurisdiction or the
initiation or threat of any proceeding for such purpose; and
(iii) of the suspension of the use
of the Prospectus pursuant to Section 2(d) hereof or of the
happening of any event that requires the making of any
changes in the Shelf Registration Statement or the
Prospectus so that, as of such date, the statements therein
are not misleading and the Shelf Registration Statement or
the Prospectus, as the case may be, does not include an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus,
in light of the circumstances under which they were made)
not misleading (which
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advice shall be accompanied by an instruction to suspend the
use of the Prospectus until the requisite changes have been
made).
(d) The Company shall use its reasonable best efforts
to obtain the withdrawal of any order suspending the effectiveness of any
Shelf Registration Statement or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Securities for
offer or sale in any jurisdiction at the earliest possible time.
(e) The Company shall furnish to each Holder of
Securities and the Common Stock issued upon conversion thereof included within
the coverage of any Shelf Registration Statement, without charge, at least one
copy of such Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, but excluding exhibits
and documents incorporated by reference unless the Holder so requests in
writing.
(f) The Company shall, during the Shelf Registration
Period, deliver to each Holder of Securities or the Common Stock issued upon
conversion thereof included within the coverage of any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request but
excluding documents incorporated by reference unless the Holder so requests in
writing; and, except during the continuance of any Suspension Period, the
Company consents to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders in connection with the offering and
sale of the Securities or the Common Stock issued upon conversion thereof
covered by the Prospectus or any amendment or supplement thereto.
(g) Prior to any offering of Securities or the Common
Stock issued upon conversion thereof pursuant to any Shelf Registration
Statement, the Company shall register or qualify or cooperate with the Holders
of Securities and the Common Stock issued upon conversion thereof included
therein and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Securities or Common Stock for offer and sale, as the case may be, under the
securities or blue sky laws of such jurisdictions as any such Holders
reasonably request in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such jurisdictions of
the Securities and the Common Stock issued upon conversion thereof covered by
such Shelf Registration Statement; provided, however, that the Company will
not be required to (A) qualify generally to do business in any jurisdiction
where it is not then so qualified or to (B) take any action which would
subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(h) The Company shall cooperate with the Holders to
facilitate the timely preparation and delivery of certificates representing
Securities or the Common Stock issued upon conversion thereof to be sold
pursuant to any Shelf Registration Statement free of any restrictive legends
and in such denominations and registered in such names as Holders may request
prior to sales of Securities or the Common Stock issued upon conversion
thereof pursuant to such Shelf Registration Statement.
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(i) Subject to the exceptions contained in (A) and (B)
of subsection (g) hereof and except as may be required solely as a consequence
of the nature of a selling Holder, the Company shall use its reasonable best
efforts to cause the Securities and Common Stock issued upon conversion
thereof covered by the applicable Shelf Registration Statement to be
registered with or approved by such other federal, state and local
governmental agencies or authorities, and self-regulatory organizations in the
United States as may be necessary to enable the Holders to consummate the
disposition of such Securities and Common Stock issued upon conversion thereof
as contemplated by the Shelf Registration Statement; without limitation to the
foregoing, the Company shall make all filings and provide all such information
as may be required by the National Association of Securities Dealers, Inc.
(the "NASD") in connection with the offering under the Shelf Registration
Statement of the Securities and Common Stock issued upon conversion thereof
(including, without limitation, such as may be required by NASD Rule 2710 or
2720), and shall cooperate with each Holder in connection with any filings
required to be made with the NASD by such Holder in that regard.
(j) Upon the occurrence of any event contemplated by
Section 3(c)(2)(iii) above and subject to Section 3(a) hereof, the Company
shall promptly prepare and file with the SEC a post-effective amendment to any
Shelf Registration Statement or an amendment or supplement to the related
Prospectus or any document incorporated therein by reference or file a
document which is incorporated or deemed to be incorporated by reference in
such Shelf Registration Statement or Prospectus, as the case may be, so that,
as thereafter delivered to purchasers of the Securities or the Common Stock
issued upon conversion thereof included therein, the Shelf Registration
Statement and the Prospectus, in each case as then amended or supplemented,
will not include an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein (in the case of the Prospectus in light of the
circumstances under which they were made) not misleading and in the case of a
post-effective amendment, use its reasonable best efforts to cause it to
become effective as promptly as practicable; provided, that the Company's
obligations under this Subsection (j) shall be suspended if the Company has
suspended the use of the Prospectus in accordance with Section 2(d) hereof and
given notice of such suspension to Holders, it being understood that the
Company's obligations under this Subsection (j) shall be automatically
reinstated at the end of such Suspension Period.
(k) The Company shall use its reasonable best efforts
to cause The Depository Trust Company ("DTC") on the first Business Day
following the effective date of any Shelf Registration Statement hereunder or
as soon as possible thereafter to remove (i) from any existing CUSIP number
assigned to the Securities any designation indicating that the Securities are
"restricted securities", which efforts shall include delivery to DTC of a
letter executed by the Company substantially in the form of Exhibit B hereto
and (ii) any other stop or restriction on DTC's system with respect to the
Securities. In the event the Company is unable to cause DTC to take actions
described in the immediately preceding sentence, the Company shall take such
actions as the Placement Agent may reasonably request to provide, as soon as
practicable, a CUSIP number for the Securities registered under such Shelf
Registration Statement and to cause such CUSIP number to be assigned to such
Securities (or to the maximum aggregate principal amount of the Securities to
which such number may be assigned). Upon compliance with the foregoing
requirements of this Section 3(k), the Company shall provide the Trustee with
global certificates for such Securities in a form eligible for deposit with
DTC.
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(l) The Company shall use its reasonable best efforts
to comply with all applicable rules and regulations of the SEC and shall make
generally available to its security holders as soon as practicable but in any
event not later than 15 months after (i) the effective date of the applicable
Shelf Registration Statement, (ii) the effective date of each post-effective
amendment to any Shelf Registration Statement and (iii) the date of each
filing by the Company with the SEC of an Annual Report on Form 10-K that is
incorporated by reference or deemed to be incorporated by reference in the
Shelf Registration Statement, an earnings statement satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 promulgated by the SEC
thereunder.
(m) The Company shall use its reasonable best efforts
to cause the Indenture to be qualified under the TIA (as defined in the
Indenture) in a timely manner.
(n) The Company shall cause all Common Stock issued or
issuable upon conversion of the Securities to be listed on each securities
exchange or quotation system on which the Common Stock is then listed no later
than the date the applicable Shelf Registration Statement is declared
effective and, in connection therewith, to make such filings as may be
required under the Exchange Act and to have such filings declared effective as
and when required thereunder.
(o) The Company may require each Holder of Securities
or the Common Stock issued upon conversion thereof to be sold pursuant to any
Shelf Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of such Securities or Common Stock
sought by the Notice and Questionnaire and such additional information as may,
from time to time, be required by the Act and the rules and regulations
promulgated thereunder, and the obligations of the Company to any Holder
hereunder shall be expressly conditioned on the compliance of such Holder with
such request.
(p) The Company shall, if reasonably requested, use its
reasonable best efforts to promptly incorporate in a Prospectus supplement or
post-effective amendment to a Shelf Registration Statement (i) such
information as the Majority Holders provide or, if the Securities or Common
Stock are being sold in an Underwritten Offering, as the Managing Underwriters
or the Majority Underwriting Holders reasonably agree should be included
therein and provide to the Company in writing for inclusion in the Shelf
Registration Statement or Prospectus, and (ii) such information as a Holder
may provide from time to time to the Company in writing for inclusion in a
Prospectus or any Shelf Registration Statement concerning such Holder and the
distribution of such Holder's Securities and Common Stock and, in either case,
shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after being notified in
writing of the matters to be incorporated in such Prospectus supplement or
post-effective amendment, provided that the Company shall not be required to
take any action under this paragraph that is not, in the reasonable opinion of
counsel for the Company, in compliance with applicable law.
(q) The Company shall enter into such customary
agreements (including underwriting agreements) and take all other appropriate
actions as may be reasonably requested in order to expedite or facilitate the
registration or the disposition of the Securities or the Common Stock issued
or issuable upon conversion thereof, and in connection therewith, if an
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underwriting agreement is entered into, cause the same to contain
indemnification and contribution provisions and procedures no less favorable
than those set forth in Section 5 (or such other reasonable and customary
provisions and procedures acceptable to the Majority Underwriting Holders and
the Managing Underwriters, if any, with respect to all parties to be
indemnified pursuant to Section 5). The plan of distribution in the Shelf
Registration Statement and the Prospectus included therein shall permit
resales of the Securities or Common Stock issuable upon conversion thereof to
be made by selling security holders through underwriters, brokers and dealers,
and shall also include such other information as the Placement Agent may
reasonably request.
(r) The Company shall (i) make reasonably available for
inspection by the Holders of Securities and the Common Stock issued upon
conversion thereof registered or to be registered under a Shelf Registration
Statement, any Underwriter participating in any disposition pursuant to such
Shelf Registration Statement, and any attorney, accountant or other agent
retained by the Holders or any such Underwriter all relevant financial and
other records, pertinent corporate documents and properties of the Company and
its subsidiaries as is customary for due diligence examinations in connection
with public offerings; (ii) cause the Company's officers, directors and
employees to supply all relevant information reasonably requested by the
Holders or any such Underwriter, attorney, accountant or agent in connection
with any such Shelf Registration Statement as is customary for similar due
diligence examinations; provided, however, that any information so delivered
shall be kept confidential by the Holders or any such Underwriter, attorney,
accountant or agent, unless disclosure thereof is made in connection with a
court, administrative or regulatory proceeding or required by law, or such
information has become available to the public generally through the Company
or through a third party without an accompanying obligation of
confidentiality; provided, further, that if the foregoing inspection and
information gathering specified in clauses (i) and (ii) above would, in the
Company's reasonable judgment, disrupt the Company's conduct of business, such
inspections and information gathering shall be coordinated on behalf of the
Holders and the other parties entitled thereto by one counsel designated by or
on behalf of the Majority Holders (or, in the case of an Underwritten
Offering, the Majority Underwriting Holders and the Managing Underwriters);
(iii) make such representations and warranties to the Holders of Securities
and the Common Stock issued upon conversion thereof registered thereunder and
the Underwriters, if any, in form, substance and scope as are customarily made
by issuers to underwriters; (iv) use its reasonable best efforts to obtain
opinions of counsel to the Company and updates thereof (which counsel and
opinions, in form, scope and substance, shall be reasonably satisfactory to
the Managing Underwriters, if any) addressed to each selling Holder and the
Underwriters, if any, covering such matters as are customarily covered in
opinions requested in public offerings; (v) use its reasonable best efforts to
obtain "cold comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or
of any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Shelf Registration
Statement), addressed to each selling Holder of Securities and Common Stock
issued upon conversion thereof registered thereunder (provided such Holder
furnishes the accountants with such representations as the accountants
customarily require in similar situations) and the Underwriters, if any, in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten offerings; and (vi)
deliver such documents and certificates as may be reasonably requested by the
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Majority Holders or, in the case of an Underwritten Offering, the Majority
Underwriting Holders, and the Managing Underwriters, if any, including those
to evidence compliance with paragraph (j) and with any customary conditions
contained in the underwriting agreement or other agreement entered into by the
Company. The foregoing actions set forth in clauses (iii), (iv), (v) and (vi)
above shall be performed (A) at the reasonable request of the Placement Agent,
at the effectiveness of such Shelf Registration Statement and each
post-effective amendment thereto and (B) at each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(s) Each Holder agrees that, upon receipt of notice of
the happening of an event described in Sections 3(c)(1)(ii) through and
including 3(c)(1)(iv) and Sections 3(c)(2)(i) through and including
3(c)(2)(iii), each Holder shall forthwith discontinue (and shall cause its
agents and representatives to discontinue) disposition of the Securities and
the Common Stock issuable upon conversion thereof and will not resume
disposition of such Securities or the Common Stock until such Holder has
received copies of an amended or supplemented Prospectus contemplated by
Section 3(j) hereof, or until such Holder is advised in writing by the Company
that the use of the Prospectus may be resumed or that the relevant Suspension
Period has been terminated, as the case may be, provided that, the foregoing
shall not prevent the sale, transfer or other disposition of Securities or
Common Stock issuable upon conversion thereof by a Holder in a transaction
which is exempt from, or not subject to, the registration requirements of the
Act, so long as such Holder does not and is not required to deliver the
applicable Prospectus or Shelf Registration Statement in connection with such
sale, transfer or other disposition, as the case may be; and provided,
further, that the provisions of this paragraph shall not prevent the
occurrence of a Registration Default or otherwise limit the obligation of the
Company to pay Additional Amounts.
(t) The Company will not be required to pay the costs
and expenses of, or to participate in the marketing or "road show"
presentations of, an Underwritten Offering unless Holders of at least the
Minimum Amount (as defined below) of Securities and/or Common Stock issued or
issuable on conversion thereof have requested that such Securities and/or
shares of Common Stock be included in such an Underwritten Offering. For
purposes of this Agreement, the "Minimum Amount" means 50% of the aggregate
principal amount of Securities originally issued under the Indenture;
provided, that, for purposes of computing the Minimum Amount, Holders of
Common Stock issued upon conversion of Securities shall be deemed to be
holders of the aggregate principal amount of Securities which were converted
into those shares of Common Stock. Only Holders of Securities or shares of
Common Stock issued or issuable upon conversion thereof which are Transfer
Restricted Securities shall be entitled to include such Securities or shares
of Common Stock in an Underwritten Offering and only Transfer Restricted
Securities shall be included in the computation of the Minimum Amount. The
Underwritten Offering initiated by Holders as aforesaid shall include both
Securities and Common Stock if so requested by the Holders. Upon receipt by
the Company from Holders of at least the Minimum Amount of Securities and/or
Common Stock issued or issuable upon conversion thereof of a request for an
Underwritten Offering the Company will, within 10 days thereafter, mail notice
to all Holders of Securities and shares of Common Stock issued upon conversion
thereof stating that: (i) the Company has received a request from the Holders
of the requisite amount of Securities and/or Common Stock issued or issuable
on conversion thereof to effect an Underwritten Offering on behalf of such
Holders; (ii) under the terms of this Agreement, all
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Holders of Securities and shares of Common Stock issued or issuable upon
conversion thereof which are Transfer Restricted Securities may include their
Securities and shares of Common Stock in such Underwritten Offering, subject
to the terms and conditions set forth in this Agreement and subject to the
right of the Managing Underwriters to reduce, in light of market conditions
and other similar factors, the aggregate principal amount of Securities and
number of shares of Common Stock included in such Underwritten Offering; (iii)
all Holders electing to include Securities or shares of Common Stock in such
Underwritten Offering must notify the Company in writing of such election (the
"Election"), and setting forth an address and facsimile number to which such
written elections may be sent and the deadline (which shall be 12:00 midnight
on the 10th calendar day after such notice is mailed to Holders or, if not a
Business Day, the next succeeding Business Day (the "Deadline")) by which such
elections must be received by the Company; and (iv) setting forth such other
instructions as shall be necessary to enable Holders to include their
Securities and shares of Common Stock in such Underwritten Offering. No Holder
shall be entitled to participate in an Underwritten Offering unless such
Holder notifies the Company of such Election by the Deadline. Notwithstanding
anything to the contrary contained herein, if the Managing Underwriters for an
Underwritten Offering to be effected pursuant to this paragraph advise the
Holders of the Securities and shares of the Common Stock to be included in
such Underwritten Offering that, because of aggregate principal amount of
Securities and/or number of shares of Common Stock that such Holders have
requested be included in the Underwritten Offering, the success of the
offering would likely be materially adversely affected by the inclusion of all
of the Securities and shares of Common Stock requested to be included, then
the principal amount of Securities and the number of shares of Common Stock to
be offered for the accounts of Holders shall be reduced pro rata, according to
the aggregate principal amount of Securities and number of shares of Common
Stock, respectively, requested for inclusion by each such Holder, to the
extent necessary to reduce the size of the offering to the size recommended by
the Managing Underwriter. Notwithstanding anything to the contrary contained
herein, neither the Company nor any Person, other than a Holder of Securities
or shares of Common Stock issued or issuable upon conversion thereof and only
with respect to its Transfer Restricted Securities, shall be entitled to
include any securities in the Underwritten Offering.
4. Registration Expenses. The Company shall bear all
expenses incurred in connection with the performance of its obligations under
Sections 1 and 2 hereof and shall reimburse the Holders for the reasonable
fees and disbursements of one firm or counsel designated by the Majority
Holders or, in the case of an Underwritten Offering, the Majority Underwriter,
to act as counsel for the Holders in connection with the Shelf Registration.
Notwithstanding the provisions of this Section 4, each Holder shall bear the
expense of any broker's commission, agency fee or Underwriter's discount or
commission.
5 Indemnification and Contribution.
(a) (i) The Company agrees to indemnify and
hold harmless the Placement Agent, each Holder of Securities and each Holder
of Common Stock issued upon conversion thereof covered by any Shelf
Registration Statement, the directors, officers, employees and agents of each
such Holder and each person who controls any such Holder within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become
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subject under the Securities Act, the Exchange Act or other Federal or state
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement as originally filed or in any
amendment thereof, or in any preliminary Prospectus or Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by any of them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
(A) any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any such Holder or the
Placement Agent specifically for inclusion therein, (B) use of a Shelf
Registration Statement or the related Prospectus during a period when a stop
order has been issued in respect of such Shelf Registration or any proceedings
for that purpose have been initiated or use of a Prospectus when use of such
Prospectus has been suspended pursuant to Section 2(d) or Section 3(s);
provided, further, in each case, that Holders received prior notice of such
stop order, initiation of proceedings or suspension, or (C) if the Holder
fails to deliver a Prospectus, as then amended or supplemented, provided that
the Company shall have delivered to such Holder such Prospectus, as then
amended or supplemented. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(ii) The Company also agrees to indemnify
and to contribute to Losses, as provided in paragraph (d) below, of any
Underwriters of Securities or Common Stock issued upon conversion thereof
registered under a Shelf Registration Statement, their officers and directors
and each person who controls any such Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act on substantially the
same basis as that of the indemnification of the Placement Agent and the
selling Holders provided in this Section 5(a) and shall, if requested by any
Holder, enter into an underwriting agreement reflecting such agreement, as
provided in Section 3(q) hereof. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Holder of Securities or Common Stock issued
upon conversion thereof covered by a Shelf Registration Statement (including
the Placement Agent) severally and not jointly agrees to indemnify and hold
harmless (i) the Company, (ii) each of its directors, (iii) each of its
officers who signs such Shelf Registration Statement and (iv) each person who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to each such Holder, but only with reference to
written information relating to such Holder furnished to the Company by or on
behalf of such Holder specifically for inclusion in the documents referred to
in the foregoing indemnity. This indemnity agreement will be in addition to
any liability which any such Holder may otherwise have.
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(c) Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof may be made against the
indemnifying party under this Section, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph (a)
or (b) above unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses; and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to assume the defense of the action and
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel (and local counsel) if (i) the use
of counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest; (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party; (iii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party.
Notwithstanding the foregoing, the Company shall not, in the connection with
any one action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to one separate firm of
local counsel) at any time for the indemnified parties, which firm or firms
(including any local counsel) shall be designated by the Placement Agent An
indemnifying party will not, without the prior written consent of the
indemnified party, which consent will not be unreasonably withheld, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional
release of such indemnified party from all liability arising out of such
claim, action, suit or proceeding. The Company shall not be liable for any
losses, claims, damages or liabilities by reason of any settlement of any
action or proceeding effected without the Company's prior written consent,
which consent will not be unreasonably withheld.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 5 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall have
an obligation to contribute to the aggregate losses, claims, damages and
liabilities
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(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses"), as incurred, to
which such indemnified party may be subject in such proportion as is
appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from
the Initial Placement and the Shelf Registration Statement which resulted in
such Losses; provided, however, that in no case shall any Underwriter be
required to contribute any amount in excess of the amount by which the total
price of the Securities and Common Stock issued upon conversion thereof
purchased by such Underwriter under the Shelf Registration Statement exceeds
the amount of any damages which such Underwriter has otherwise been required
to pay. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the indemnifying party and the indemnified party
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on
the one hand, and such indemnified party, on the other hand, in connection
with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal
to the total net proceeds from the Initial Placement (before deducting
expenses), benefits received by the Placement Agent shall be deemed to be
equal to the total commissions, and benefits received by any other Holders
shall be deemed to be equal to the value of receiving Securities or the Common
Stock issuable upon conversion thereof registered under the Act. Benefits
received by any Underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Shelf Registration Statement (or the
applicable Prospectus supplement) which resulted in such Losses. Relative
fault shall be determined by reference to, among other things, whether any
untrue statement or omission or alleged untrue statement or omission relates
to information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand. The parties agree that it would not be
just and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph, no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person who controls a
Holder within the meaning of either the Securities Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the
Company within the meaning of either the Securities Act or the Exchange Act,
each officer of the Company and each director of the Company shall have the
same rights to contribution as the Company, and each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
officer and director of each Underwriter shall have the same rights to
contribution as such Underwriter, subject in each case to the applicable terms
and conditions of this paragraph.
(e) The provisions of this Section will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Holder, any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 5 hereof, and will survive the sale
by a Holder of Securities or shares of Common Stock covered by a Shelf
Registration Statement.
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6. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as
of the date hereof, entered into nor shall it, on or after the date hereof,
enter into, any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
qualified, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, unless the Company has obtained
the written consent of the Majority Holders; provided that with respect to any
matter that directly or indirectly affects the rights of the Placement Agent
hereunder, the Company shall obtain the written consent of the Placement Agent
against which such amendment, qualification, supplement, waiver or consent is
to be effective. Notwithstanding the foregoing (except the foregoing proviso),
a waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose Securities or
Common Stock are being sold pursuant to a Shelf Registration Statement and
that does not directly or indirectly affect the rights of other Holders may be
given by the Majority Holders, determined on the basis of Securities or Common
Stock issued upon conversion thereof being sold rather than registered under
such Shelf Registration Statement.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telecopier, or air courier guaranteeing overnight delivery:
(1) if to the Placement Agent, initially at the address
set forth in the Placement Agreement;
(2) if to any other Holder, at the most current address
given by such Holder to the Company in accordance with the provisions of this
Section 6(c), which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the Indenture or, in
the case of Common Stock, the address maintained by the registrar of the
Common Stock, with a copy in like manner to the Placement Agent; and
(3) if to the Company, initially at its address set
forth in the Placement Agreement.
All such notices and communications shall be deemed to have
been duly given when received, if delivered by hand or air courier, and when
sent, if sent by first-class mail or telecopier.
The Placement Agent or the Company by notice to the other
may designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of
the parties, including, without the need for an express assignment or any
consent by the Company thereto, subsequent Holders. The Company hereby agrees
to extend the benefits of this Agreement to any Holder and any such
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Holder may enforce the provisions of this Agreement as if an original party
hereto. In the event that any other person shall succeed to the Company under
the Indenture as provided in Article VI thereof, then such successor shall
enter into an agreement, in form and substance reasonably satisfactory to the
Placement Agent, whereby such successor shall assume all of the Company's
obligations under this Agreement.
(e) Counterparts. This agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE, WITHOUT REGARD, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, TO THE CONFLICTS OF LAW RULES THEREOF.
(h) Severability. In the event that any one of more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions hereof shall not be in any
way impaired or affected thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent permitted
by law.
(i) Securities Held by the Company, etc. Whenever the
consent or approval of Holders of a specified percentage of principal amount
of Securities or the Common Stock issuable upon conversion thereof is required
hereunder, Securities or the Common Stock issued upon conversion thereof held
by the Company or its Affiliates (other than subsequent Holders of Securities
or the Common Stock issued upon conversion thereof if such subsequent Holders
are deemed to be Affiliates solely by reason of their holdings of such
Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(j) Benefit of Agreement. Each Holder of the
Securities and/or Common Stock from time to time shall be a third-party
beneficiary of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
ONLINE RESOURCES CORPORATION
By
------------------------------
Name:
Title:
XXXXXXXXX & COMPANY. INC.
By
----------------
Authorized Representative
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EXHIBIT A
Notice of Registration Statement
and
Selling Securityholder Questionnaire
Reference is hereby made to the Registration Agreement (the
"Registration Agreement") between OnLine Resources Corporation., a Delaware
corporation (the "Company"), and the Placement Agent named therein. Pursuant
to the Registration Agreement, the Company has filed or will file with the
United States Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (the "Shelf Registration Statement") for
the registration and resale under Rule 415 of the Securities Act of 1933, as
amended (the "Securities Act"), of the Company's 8.0% Convertible Subordinated
Notes due 2005 (the "Securities"), and the shares of the Company's common
stock, par value $.01 per share (the "Common Stock"), issuable upon conversion
thereof. A copy of the Registration Agreement is attached hereto. All
capitalized terms not otherwise defined herein shall have the meanings
ascribed thereto in the Registration Agreement.
Each holder and beneficial owner of Transfer Restricted
Securities is entitled to have its Transfer Restricted Securities included in
the Shelf Registration Statement. In order to have Transfer Restricted
Securities included in the Shelf Registration Statement, this Notice of
Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Company's
counsel at the following address, for receipt ON OR BEFORE [DEADLINE FOR
RESPONSE]: Xxxx Xxxxxxx, Mintz, Levin, Cohen, Ferris, Glovsky & Popeo, 00000
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000. Holders or beneficial owners of
Transfer Restricted Securities who do not complete, execute and return this
Notice and Questionnaire by such date (i) will not be named as selling
securityholders in the Shelf Registration Statement and (ii) may not use the
Prospectus forming a part thereof for resales of Transfer Restricted
Securities, subject, however, to the Company's obligations under Section
2(b)(2) of the Registration Agreement.
Certain legal consequences arise from being named as a
selling securityholder in the Shelf Registration Statement and related
Prospectus. Accordingly, holders and beneficial owners of Transfer Restricted
Securities are advised to consult their own securities law counsel regarding
the consequences of being named or not being named as a selling securityholder
in the Shelf Registration Statement and related Prospectus.
ELECTION
The undersigned (the "Selling Securityholder") hereby elects
to include in the Shelf Registration Statement the Transfer Restricted
Securities held or beneficially owned by it and listed below in Item (3)(b).
The undersigned, by signing and returning this Notice and Questionnaire,
agrees to be bound with respect to such Transfer Restricted Securities by the
terms and conditions of this Notice and Questionnaire and the Registration
Agreement,
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including, without limitation, the indemnification set forth in Section 4 of
the Registration Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
QUESTIONNAIRE
(1) (a) Full legal name of Selling Securityholder:
(b) Full legal name of registered holder (if not the same as in
(a) above) of Transfer Restricted Securities listed in (3) below (if the
Transfer Restricted Securities are held through a broker-dealer or other third
party and, as a result, you do not know the legal name of the registered
holder, please complete Item (1)(c) below):
(c) Full legal name of broker-dealer or other third party
through which Transfer Restricted Securities listed in (3) below are held:
(2) Address for notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
(3) Beneficial ownership of Transfer Restricted Securities.
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities or shares of Common Stock which constitute
Transfer Restricted Securities.
(a) Principal amount of Securities constituting Transfer
Restricted Securities beneficially owned:
Number of shares of Common Stock, if any, constituting Transfer
Restricted Securities (include only shares of Common Stock which have actually
been issued, not shares issuable upon future conversion of Securities):
The undersigned also may be deemed to beneficially own such number of
shares of Common Stock as may be issued from time to time upon conversion of
the Securities listed in Item (3)(a) above.
(b) Principal amount of Securities and number of shares of
outstanding Common Stock constituting Transfer Restricted Securities which the
undersigned wishes to be included in the Shelf Registration Statement:
Unless otherwise indicated in the space provided below, all
Securities, all shares of Common Stock listed in response to Item (3)(a)
above, and all shares of Common Stock issuable upon conversion of the
Securities listed in response to Item (3)(b)above, will be included in the
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Shelf Registration Statement. If the undersigned does not wish all such
Securities or shares of Common Stock to be so included, please indicate below
the number of such shares to be included:
(4) Beneficial ownership of other securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any shares of
Common Stock or any other securities of the Company, other than Securities and
shares of Common Stock listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its officers, directors or 5% or greater stockholders has held any position
or office or has had any other material relationship with the Company (or its
predecessors or affiliates)during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Transfer Restricted Securities listed above in Item
(3) only as follows (if at all): Such Transfer Restricted Securities may be
sold from time to time by the undersigned Selling Securityholder (i) to or
through underwriters, brokers or dealers; (ii) directly to one or more other
purchasers; (iii) through agents on a best-efforts basis or otherwise; or (iv)
through a combination of any such methods of sale. Such Transfer Restricted
Securities may be sold from time to time in one or more transactions at a
fixed price or prices, which may be changed, at market prices prevailing at
the time of sale, at prices related to such prevailing market prices, at
varying prices determined at the time of sale, or at negotiated prices. Such
sales may be effected in transactions (which may involve crosses or block
transactions) (i) on any national securities exchange or quotation service on
which the Transfer Restricted Securities may be listed or quoted at the time
of sale, (ii) in the over-the-counter market, (iii) in transactions otherwise
than on such exchanges or services or in the over-the-counter market or (iv)
through the writing of options. In connection with sales of the Transfer
Restricted Securities or otherwise, the Selling Securityholder may enter into
hedging transactions with brokers-dealers or others, which may in turn engage
in short sales of the Transfer Restricted Securities in the course of hedging
the positions they assume. The Selling Securityholder may also sell Transfer
Restricted Securities short and deliver Transfer Restricted Securities to
close out such short positions, or loan or pledge Transfer Restricted
Securities to brokers-dealers or others that in turn may sell such
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securities. The Selling Securityholder may pledge or grant a security interest
in some or all of the Transfer Restricted Securities owned by it and, if it
defaults in the performance of its secured obligations, the pledgees or
secured parties may offer and sell the Transfer Restricted Securities from
time to time pursuant to the Prospectus. The Selling Securityholder also may
transfer and donate shares in other circumstances in which case the
transferees, donees, pledgees or other successors in interest will be the
selling stockholders for purposes of the Prospectus. The Selling
Securityholder may sell short the Common Stock and may deliver the Prospectus
in connection with such short sales and use the shares covered by the
Prospectus to cover such short sales.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder, particularly Regulation M and the prospectus
delivery requirements under the Securities Act.
In the event that the Selling Securityholder transfers all or any
portion of the Transfer Restricted Securities listed in Item (3) above after
the date on which such information is provided to the Company (other than a
transaction as a result of which such securities shall no longer be Transfer
Restricted Securities), the Selling Securityholder agrees to notify the
transferees at the time of the transfer of its rights and obligations under
this Notice and Questionnaire and the Registration Agreement.
By signing below, the Selling Securityholder consents to the
disclosure of the information contained herein in its answers to Items (1)
through (6) above and the inclusion of such information in the Shelf
Registration Statement and related Prospectus. The Selling Securityholder
understands that such information will be relied upon by the Company in
connection with the preparation of the Shelf Registration Statement and
related Prospectus.
The Selling Securityholder agrees to promptly notify the Company of
any inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration
Statement remains in effect. All notices hereunder and pursuant to the
Registration Agreement shall be made in writing, by hand-delivery, first-class
mail, or air courier guaranteeing overnight delivery as follows:
OnLine Resources Corporation
0000 Xxxxxxxx Xxxxx
0xx Xxxxx
XxXxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall
be binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Transfer
Restricted Securities
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beneficially owned by such Selling Securityholder and listed in Item (3)(b)
above). This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
Selling Securityholder(Print/type full legal
name of beneficial owner of Transfer
Restricted Securities).
By:_______________________________
Name:
Title:
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EXHIBIT B
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
-----------------------
THE DEPOSITORY TRUST COMPANY
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Re: 8.0% Convertible Subordinated Notes due 2005 (the
"Securities") of Online Resources Corporation.
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission has
declared effective a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended, with regard to all of the Securities referenced
above. Accordingly, there is no longer any restriction as to whom such
Securities may be sold and any restrictions on the CUSIP designation are no
longer appropriate and may be removed. I understand that upon receipt of this
letter, DTC will remove any stop or restriction on its system with respect to
this issue.
As always, please do not hesitate to call if we can of further
assistance.
Very truly yours,
By:________________________
Authorized Officer
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