PROBUSINESS SERVICES, INC.
WAIVER AND AMENDMENT TO THE AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Waiver and Amendment to the Amended and Restated Registration
Rights Agreement made as of the 12th day of March, 1997, as amended (the
"Amended Registration Rights Agreement"), is entered into as of December 20,
2001 by and among ProBusiness Services, Inc., a Delaware corporation (the
"Company"), General Atlantic Partners 39, L.P. ("GAP, L.P."), GAP Coinvestment
Partners, L.P. ("GAP Coinvestment"), General Atlantic Partners 70, L.P. ("GAP
70, L.P."), GAP Coinvestment Partners II, L.P. ("GAP Coinvestment II"), GapStar,
LLC ("GapStar" and together, with GAP, L.P., GAP Coinvestment, GAP 70, L.P. and
GAP Coinvestment II, the "Purchasers"), Xxxxxx X. Xxxxxx and the holders of a
majority of the Company's registrable securities pursuant to the Amended
Registration Rights Agreement (the "Waiver and Amendment").
RECITALS:
A. The Holders of Registrable Securities (as defined in the Amended
Registration Rights Agreement) possess certain registration rights pursuant to
the Amended Registration Rights Agreement.
B. Pursuant to Section 2.6 of the Amended Registration Rights
Agreement, the Company, the Purchasers and the Holders of a majority of the
Company's Registrable Securities (as defined in the Amended Registration Rights
Agreement) may amend or waive the Amended Registration Rights Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions set forth herein and other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Waiver. The undersigned hereby waive, on behalf of all parties to
the Amended Registration Rights Agreement, any registration rights that any of
the parties to the Amended Registration Rights Agreement may have in connection
with the registration of Common Stock of the Company pursuant to a Registration
Statement on Form S-3 to be filed by the Company pursuant to Section 5 of the
Common Stock Purchase Agreement dated December 20, 2001 between the Company and
certain purchasers of the Company's common stock (the "Common Stock Purchase
Agreement").
2. Amendment. Section 2.1 of the Amended Registration Rights Agreement
is hereby amended to read in its entirety as follows:
"2.1 No Inconsistent Agreements. The Company shall not, after
the date hereof, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders
in this Agreement or grant any additional registration rights to any
Person or with respect to any securities which are not Registrable
Securities which are prior in right to or inconsistent with the rights
granted in this Agreement, except as provided in Section 2.6 and except
for those registration rights granted to certain purchasers of the
Company's common stock pursuant to the Common Stock Purchase
Agreement."
The Company hereby covenants that it will not amend the Common Stock Purchase
Agreement in a manner that affects or may affect the registration rights in the
Amended Registration Rights Agreement without the consent required in Section
2.6 of the Agreement.
3. Other provisions. All other provisions of the Amended Registration
Rights Agreement shall remain in full force and effect.
4. Governing law. This Waiver and Amendment shall be governed in all
respects by and construed in all respects in accordance with the laws of the
State of California.
5. Severability. If one or more provisions of this Waiver and Amendment
are held to be unenforceable under applicable law, such provision shall be
excluded from this Waiver and Amendment and the balance of the Waiver and
Amendment shall be interpreted as if such provision were so excluded and shall
be enforceable in accordance with its terms.
6. Counterparts. This Waiver and Amendment may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
-2-
IN WITNESS WHEREOF, the parties hereby have executed this Waiver and
Amendment to the Amended Registration Rights Agreement on the date first above
written.
"COMPANY"
PROBUSINESS SERVICES, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
PURCHASER'S COUNTERPART SIGNATURE PAGE
WAIVER AND AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT
December 20, 2001
"PURCHASERS"
GENERAL ATLANTIC PARTNERS 39, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: A Managing Member
GAP COINVESTMENT PARTNERS, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: A General Partner
GENERAL ATLANTIC PARTNERS 70, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: A Managing Member
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: A General Partner
GAPSTAR, LLC
By: GENERAL ATLANTIC PARTNERS, LLC,
its Managing Member
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: A Managing Member
WAIVER AND AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT
December 20, 2001
IN WITNESS WHEREOF, and of his assent to all matters contemplated in
that certain Amendment to Amended and Restated Registration Rights Agreement
dated as of August 1, 2000, the undersigned has executed this Waiver and
Amendment as of the date first set forth above.
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx
