Exhibit 10.18
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of this 1st day of April, 1996, among GLOBAL PAYMENT SYSTEMS LLC
(formerly named POS Acquisition Company LLC), a Georgia limited liability
company (the "Company"), and MASTERCARD INTERNATIONAL INCORPORATED, a Delaware
corporation ("MasterCard");
W I T N E S S E T H:
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WHEREAS, MasterCard and National Data Corporation, a Delaware corporation
("NDC"), jointly formed the Company pursuant to that certain Asset Purchase and
Contribution Agreement dated as of February 22, 1996, as amended (the "Purchase
Agreement") by contributing certain of the assets utilized in their respective
businesses and having the Company assume certain of the liabilities of their
respective businesses;
WHEREAS, NDC and MasterCard have respective ownership interests (the
"Membership Interests") in the Company of ninety-two and one-half percent
(92.5%) and seven and one-half percent (7.5%);
WHEREAS, pursuant to the Company's Operating Agreement dated as of March
31, 1996 by and between MasterCard and NDC, the Membership Interests may be
converted into shares of stock (the "Shares") upon a Conversion (as defined in
the Operating Agreement), or the Membership Interests may be converted into or
exchanged for other equity securities ("Other Securities"), in connection with a
business combination or other extraordinary transaction with respect to the
Company; and
WHEREAS, it is in the best interests of the Company and MasterCard that
certain aspects of their relationship be regulated and that certain registration
rights be granted to MasterCard;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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(a) "Affiliate" means, as to any Person, any other Person which, directly
or indirectly, controls, or is under common control with, or is controlled by,
such Person. As used in this definition, "control" (including, with its
correlative meanings, "controlled by" and "under common control with") means
possession, directly or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities, or partnership
or other ownership interests, by contract or otherwise).
(b) "Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in Atlanta, Georgia or New York, New York are authorized
by law to close.
(c) "Commission" means the Securities and Exchange Commission and any
successor commission or agency having similar powers.
(d) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(e) "Holders" means MasterCard and its successors, transferees and
assigns, and any combination of them, and the term "Holder" shall mean any such
person.
(f) "IPO" means (i) a public offering of any class of equity securities of
the Issuer that is effected through a firm commitment underwriting and pursuant
to a registration statement declared effective under the Securities Act (any
such offering will be deemed to have occurred for purposes of this Agreement on
the date of the first closing at which the Issuer receives payment for the
securities offered and sold thereby); (ii) any transaction which results in any
class of equity securities of the Issuer being publicly traded in an established
market and (iii) any transaction as a result of which the Issuer becomes subject
(by law or by contract) to periodic reporting obligations under the Exchange
Act.
(g) "Issuer" means the Company and any successor entity, including without
limitation any issuer of Shares or Other Securities.
(h) "Minimum Registration Amount" means that number of Registrable
Securities which represent not less than 30% of the Registrable Securities then
outstanding.
(i) "NASD" means the National Association of Securities Dealers, Inc..
(j) "Operating Agreement" means that certain Operating Agreement by and
between MasterCard and Ambassador dated as of March 31, 1996.
(k) "Person" means and includes natural persons, corporations, limited
partnerships, general partnerships, joint stock companies, joint ventures,
associations, companies, trusts, banks, trust companies, land trusts, business
trusts and other organizations, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
(l) "Registrable Securities" means the Membership Interests, the Shares
and the Other Securities that are beneficially owned from time to time by a
Holder or Holders.. As to any particular Registrable Securities, once issued
such securities shall cease to be Registrable Securities (i) when a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities
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shall have been disposed of in accordance with such registration statement, (ii)
when they shall have been distributed to the public pursuant to Rule 144 (or any
successor provision) or may be distributed to the public without registration
pursuant to Rule 144(k) (or any successor provision) under the Securities Act,
(iii) when they shall have been otherwise transferred, new certificates for them
not bearing a legend restricting further transfer shall have been delivered by
the Issuer and subsequent disposition of them shall not require registration or
qualification of them under the Securities Act or any similar state law then in
force, (iv) when they shall have ceased to be outstanding.
(m) "Registration Expenses" means all expenses incident to the Issuer's
performance of or compliance with Sections 3.1 and 3.3, including, without
limitation, all printing expenses, messenger, telephone, duplication, word
processing and delivery expenses incurred by the Issuer, the fees and
disbursements of counsel for the Issuer and of its independent public
accountants, and the fees and expenses incurred in connection with the listing
of the securities to be registered on any securities exchange, but not including
such holders' proportionate share of underwriting discounts and commissions,
applicable transfer taxes, all registration and filing fees, all fees and
expenses of complying with securities or blue sky laws, fees and other expenses
associated with filings with the NASD and the fees and disbursements of counsel
retained by such holders.
(n) "Securities Act" means the Securities Act of 1933, as amended.
ARTICLE II
RESTRICTIONS ON TRANSFER
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2.1. General Restrictions.
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(a) Prior to any proposed transfer of any Registrable Securities (other
than under the circumstances described in Article III hereof), the Holder
thereof shall give written notice to the Issuer of its intention to effect such
transfer. Each such notice shall describe the manner of the proposed transfer
and, if requested by the Issuer, shall be accompanied by an opinion of counsel
reasonably satisfactory to the Issuer (it being agreed that Xxxxxx & Xxxxx shall
be acceptable to render such opinion) to the effect that the proposed transfer
may be effected without registration under the Securities Act, whereupon such
Holder shall be entitled to transfer the Registrable Securities in accordance
with the terms of its notice. Each certificate or instrument transferred as
above provided shall bear the legend set forth in Section 2.1(b), except that
such certificate or instrument shall not bear such legend if (i) such transfer
is in accordance with the provisions of Rule 144 under the Securities Act (or
any other rule permitting public sale without registration under the Securities
Act) or (ii) the opinion of counsel referred to above is to the further effect
that the transferee and any subsequent transferee would be entitled to transfer
such Registrable Securities in a public sale without registration under the
Securities Act.
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(b) Except as provided in Section 2.1(a) and (c), each certificate
evidencing Registrable Securities issued to any Holder shall bear a legend in
substantially the following form:
PURCHASERS OF THESE SECURITIES WILL BE REQUIRED TO BEAR THE RISK OF THEIR
INVESTMENTS FOR AN INDEFINITE PERIOD OF TIME. THE SECURITIES HAVE NOT BEEN
REGISTERED (i) UNDER ANY STATE SECURITIES LAW (THE "STATE ACT"), OR (ii)
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "FEDERAL
ACT"), AND NEITHER THE SECURITIES NOR ANY PART THEREOF MAY BE SOLD,
EXCHANGED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER EACH APPLICABLE STATE ACT OR IN A TRANSACTION
WHICH IS EXEMPT FROM REGISTRATION UNDER SUCH STATE ACT OR FOR WHICH SUCH
REGISTRATION OTHERWISE IS NOT REQUIRED, AND (2) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE FEDERAL ACT OR IN A TRANSACTION WHICH IS
EXEMPT FROM REGISTRATION UNDER THE FEDERAL ACT OR FOR WHICH SUCH
REGISTRATION OTHERWISE IS NOT REQUIRED.
(c) In the event that any Registrable Securities shall cease to be subject
to the restrictions on transfer set forth in this Agreement, the Issuer shall,
upon the written request of the Holder thereof, issue to such Holder a new
certificate evidencing such Registrable Securities without the legend required
by Section 2.1(b) hereof endorsed thereon.
ARTICLE III
REGISTRATION RIGHTS
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Section 3.1 Registration on Request of Holders.
(a) The Holders shall have the right, at any time following the end of the
eleventh month after an IPO, by written notice (the "Demand Notice") given to
the Issuer, to request the Issuer to register under and in accordance with the
provisions of the Securities Act all or any portion of the Registrable
Securities designated by such Holders, provided that the number of securities to
be registered are not less than the Minimum Registration Amount. Upon receipt of
any such Demand Notice, the Company shall promptly notify all other Holders of
the receipt of such Demand Notice and allow them the opportunity to include
Registrable Shares held by them in the proposed registration by submitting their
own Demand Notice. Notwithstanding the foregoing, the following limitations
shall be applicable to any such requested registration:
(i) The right to participate in the requested registration shall be
determined in accordance with Section 3.1(d) and (e) hereof.
(ii) The Issuer shall be entitled on two occasions during each Demand
Period (as defined in Section 3.1(b)) to postpone the filing of any
registration
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statement otherwise required to be prepared and filed by the Issuer pursuant
to this Section 3.1 for a reasonable period of time, but not in excess of 90
days (a "Delay Period"), if any executive officer of the Issuer determines in
good faith that in such executive officer's reasonable judgment the
registration and distribution of the Registrable Securities covered or to be
covered by such registration statement would materially interfere with any
pending or contemplated material public offering of equity securities by the
Issuer or would require premature disclosure by the Issuer of any material
corporate development (including potential material business combination and
merger and acquisition transactions) affecting the Issuer and the Issuer
promptly gives the Holders written notice of such determination, containing a
general statement of the reasons for such postponement and an approximation of
the period of the anticipated delay; provided, however, that (i) the aggregate
number of days include in all Delay Periods during any Demand Period (as
defined in Section 3.1(b)) shall not exceed the aggregate of (x) 90 days minus
(y) the number of days occurring during all Hold Back Periods (as defined in
Section 3.3) (other than any Hold Back Period with respect to an offering in
which the Holders had the opportunity to participate and in which the Holders
were able to sell at least 50% of the Registrable Securities that the Holders
requested be included in such Registration Statement) during the Demand
Period, and (ii) a period of at least 90 days shall elapse between the
termination of any Delay Period or Hold Back Period and the commencement of
the next succeeding Delay Period (regardless of whether the commencement of
such succeeding Delay Period occurs during the same Demand Period as the
preceding Delay Period). If the Issuer shall so postpone the filing of a
registration statement, the Holders of Registrable Securities to be registered
shall have the right to withdraw the request for registration by giving
written notice from the Holders of a majority of the Registrable Securities
that were to be registered to the Issuer (x) within 30 days after receipt of
the notice of postponement or, if earlier, (y) the date such Delay Period is
terminated (and, in the event of such withdrawal, such request shall not be
counted for purposes of determining the number of requests for registration to
which the Holders of Registrable Securities are entitled pursuant to this
Section 3.1). The Issuer shall not be entitled to initiate a Delay Period
pursuant to Section 3.1 unless it shall (A) concurrently prohibit sales by
other security holders of the Issuer under registration statements covering
securities held by such other security holders and (B) in accordance with the
Issuer's policies from time to time in effect, prohibit purchases and sales in
the open market by officers and directors (and persons holding equivalent
positions) of the Issuer.
(iii) Holders of a majority in number of the Registrable Securities to be
included in a registration statement pursuant to this Section 3.1 may, at any
time prior to the effective date of the registration statement relating to
such registration, revoke such request by providing a written notice to the
Issuer revoking such request. The Holders who revoke such request shall
reimburse the Issuer for all its out-of-pocket expenses incurred in the
preparation, filing and processing of the registration statement through the
date of revocation; provided, however, that, if
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such revocation was based on the Issuer's failure to comply in any material
respect with its obligations under this Agreement, such reimbursement shall
not be required. In the event the Holder revokes such request for
registration and such revocation was not based upon the Issuer's failure to
comply in any material respect with the obligations hereunder, the Holders
whose Registrable Securities were to be included in such registration may
not submit a Demand Request for 180 days after such revocation.
(b) Except as otherwise provided in this Agreement, the Issuer shall be
obligated to register Registrable Securities pursuant to this Section 3.1 on
three occasions only; provided that (i) the Issuer shall only be obligated to
effect one registration of Registrable Securities pursuant to this Section 3.1
during each 12 month period commencing following the end of the eleventh month
after an IPO (each such period referred to as "Demand Period"); and (ii) such
obligation shall not be deemed satisfied if (x) the registration statement does
not become effective because of a material adverse change in the Issuer; (y)
such registration statement does become effective and the method of disposition
is an underwritten public offering and any of the Registrable Securities
included in such registration are not sold after execution of an underwriting
agreement with respect thereto because the obligations of any underwriter to
purchase any Registrable Securities are excused for any reason other than
default or consent by a Holder; or (iii) the number of Registrable Securities to
be sold is reduced by greater than 15 percent pursuant to Section 3.1(d) or (e).
(c) Subject to Section 3.1(a)(ii), from the date of receipt of a Demand
Notice from the Holders pursuant to Section 3.1(a) until the completion of the
period of distribution of the registration contemplated therein not to exceed
the period determined in accordance with Section 3.5(b), the Issuer will not
file with the Commission any other registration statement with respect to its
equity securities, whether for its own account or that of other security
holders, provided that the Issuer shall not be prohibited from filing any
registration statements on Forms S-4 or S-8 or any successor form. Except for a
period of 120 days from receipt of a Demand Notice from the Holders (or from the
end of any Delay Period if such Demand Notice has not been withdrawn or revoked
during such Delay Period) with respect to a requested registration which
provides for offers and sales of Registrable Securities on a continuous or
delayed basis pursuant to Rule 415 under the Securities Act (or any successor
provision), the restriction on the filing of a registration statement by the
Issuer set forth in this Section 3.1(c) shall not apply. The Issuer shall be
entitled to include in any registration statement referred to in this Section
3.1 shares of its capital stock to be sold by the Issuer for its own account or
by other stockholders of the Issuer pursuant to other registration rights
agreements, provided the registration statement relates to an underwritten
public offering and in the opinion of the managing underwriter such inclusion
would not adversely affect the marketing of the securities to be sold by the
Holders of Registrable Securities.
(d) Notwithstanding anything to the contrary in this Section 3.1, the
amount of Registrable Securities to be included in an underwritten public
offering may be reduced if
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and to the extent the managing underwriter shall be of the opinion that such
inclusion would adversely affect the marketing of the Registrable Securities to
be sold in such underwritten public offering including the price at which such
Registrable Securities will be sold. If such a determination is made, (i) the
number of shares to be included by the Issuer and the number of shares to be
included by stockholders other than the Holders shall be reduced first; and then
(ii) the number of Registrable Securities to be sold shall be reduced as
provided in Section 3.1(e).
(e) If a requested registration pursuant to this Section 3.1 involves an
underwritten public offering and the number of Registrable Securities requested
to be included in such registration is required to be reduced as described in
Section 3.1(d), then the Issuer will reduce the number of Registrable Securities
requested to be included by each Holder pro rata in the proportion that the
percentage of Restricted Shares requested by that Holder to be included bears to
the total number of Registrable Securities requested to be included in that
registration; provided, however, that the Holders requesting registration may
agree among themselves a different priority.
(f) If any requested registration pursuant to this Section 3.1 is in the
form of an underwritten public offering, the Holders of a majority in number of
the Registrable Securities to be included in the offering shall be entitled,
after consultation with the Issuer, to select the manager or co-managers that
will administer the offering.
3.2. Incidental Registration. If the Issuer at any time proposes to
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register any of its equity securities under the Securities Act (other than
pursuant to a registration statement on Forms S-4 or S-8, or any successor
forms), whether or not for sale for its own account, and the registration form
to be used may be used for the registration of Registrable Securities, it shall
at such time give each Holder of Registrable Securities prompt written notice of
its intentions and, upon the written request of any such Holder made within
twenty (20) days after the receipt of any such notice (which request shall
specify the Registrable Securities intended to be disposed of by such Holder and
the intended method of disposition thereof), the Issuer shall use its
commercially reasonable efforts to effect the registration under the Securities
Act of all Registrable Securities which the Issuer has been so requested to
register by the Holders thereof, to the extent required to permit the
disposition (in accordance with the intended methods thereof as aforesaid) of
the Registrable Securities so to be registered, provided that:
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(a) if, at any time after giving written notice of its intention to
register any securities and, prior to the effective date of the registration
statement filed in connection with such registration, the Issuer shall determine
for any reason not to register such securities, the Issuer may, at its election,
give written notice of such determination to each Holder of Registrable
Securities and, thereupon, shall be relieved of its obligation to register any
Registrable Securities in connection with such registration (but not from its
obligation to pay the Registration Expenses in connection therewith);
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(b) if such registration shall be in connection with the Issuer's initial
underwritten public offering (the "Initial Offering"), the Holders shall only be
entitled to request registration of up to the number of Registrable Securities
equal to one-half of the number of Registrable Securities (the "Maximum Number")
which Maximum Number shall be reduced by the number of Registrable Securities
previously sold pursuant to exercise of the Put Right (as defined in the
Operating Agreement) ; and further provided, that if the managing underwriter
advises the Issuer that, in its view, the registration and distribution of the
number of equity securities of the Issuer (including the Registrable Securities)
which the Issuer, the Holders, and all other persons intend to include in such
registration exceeds the largest number of equity securities which can be sold
without materially adversely affecting the marketing of the securities to be
sold in such underwritten public offering (including the price at which such
securities may be sold)(the "Maximum Offering Size"), the Issuer shall include
in such registration, in the following priority, up to the Maximum Offering
Size: (i) first, the number of Registrable Securities proposed to be sold by the
Holders , which shall have priority in being included in such registration, (ii)
second, all securities proposed to be sold by the Issuer the ), and (iii) third,
the number of shares proposed to be sold by all other security holders; and
(c) if such registration shall be in connection with an underwritten
public offering other than the Initial Offering and the managing underwriter
advises the Issuer that, in its view, the registration and distribution of the
number of equity securities of the Issuer (including the Registrable Securities)
which the Issuer, the Holders, and all other persons intend to include in such
registration exceeds the Maximum Offering Size, the Issuer shall include in such
registration, in the following priority, up to the Maximum Offering Size: (i)
first, all securities being sold by the Issuer, which shall have priority in
being included in such registration, (ii) second, all securities proposed to be
sold by the Holders and all security holders other than Ambassador pro rata in
proportion to the number of shares proposed to be sold by them (or based on the
proposed offering price of the total number of securities included in such
underwritten public offering requested to be included by them if shares of
common stock are not being offered), and (iii) third, the securities proposed to
be sold by Ambassador.
3.3. Holdback Agreements.
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(a) If requested by the managing underwriter in connection with any
underwritten public offering by the Issuer, each Holder of Registrable
Securities, if requested by the managing underwriter of such public offering,
will agree not to effect any public sale or distribution under the Securities
Act, of any Registrable Securities, and not to effect any such public sale or
distribution of any other equity security of the Issuer or other security
convertible into or exchangeable or exercisable for any equity security of the
Issuer (in each case, other than as part of such public offering) during the
five (5) Business Days prior to, and during the 120-day period (or such longer
period as requested by the underwriters and agreed to by the Holders) which
begins on the effective date of such registration statement (each such period
being referred to in this Agreement as a "Hold Back Period"), provided that (i)
Ambassador and the executive officers and
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directors of the Issuer shall be bound by the same selling restrictions as are
applied to the Holders and the managing underwriter will not grant waiver of
such restrictions to any other Person unless waivers on substantially the same
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terms are granted to the Holders; and (ii) each Holder of Registrable Securities
shall receive written notice of such registration at least two (2) Business Days
prior to the anticipated beginning of the five (5) day period referred to above.
(b) The Issuer shall not effect any public sale or distribution of any of
its equity securities or of any security convertible into or exchangeable or
exercisable for any equity security of the Issuer (other than any such sale or
distribution of such securities in connection with any merger or consolidation
by the Issuer or any subsidiary of the Issuer or the acquisition by the Issuer
or a subsidiary of the Issuer of the capital stock or substantially all the
assets of any other person or in connection with an employee stock ownership or
other benefit plan) during the five (5) Business Days prior to the effective
date of such registration statement.
3.4 Designation of Underwriter. In the case of any registration pursuant
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to the provisions of Section 3.2 hereof which is proposed to be effected
pursuant to a firm commitment underwriting, the Issuer shall select the managing
underwriter after consultation with MasterCard, and all Holders of Registrable
Securities participating in the registration shall sell their Registrable
Securities only pursuant to such underwriting.
3.5. Registration Procedures. If and whenever the Issuer is required to use
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its commercially reasonable efforts to effect the registration of any
Registrable Securities under the Act, the Issuer shall:
(a) promptly, and in any event within 30 days, prepare and file with the
Commission a registration statement with respect to such securities, make all
required filings with the NASD and use commercially reasonable efforts to cause
such registration statement to become effective as promptly as practicable
thereafter;
(b) prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement until such time as all of such
securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement, but in no event for a period of more than six months after such
registration statement becomes effective; provided, however, that in the case of
a registration statement on Form S-3 (or any successor form) which the Holders
shall have requested providing for offers and sales of Registrable Securities on
a continuous or delayed basis pursuant to Rule 415 under the Securities Act (or
any successor provision), the Issuer's obligations under this paragraph 3.5(b)
shall not be subject to the foregoing six month limitation;
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(c) furnish to the Holders and to counsel (if any) selected by Holders of
a majority in number of the Registrable Securities covered by such registration
statement for review and comment (but not approval of the Holders or their
counsel except with respect to any statement in the registration statement which
relates to the Holder) copies of all documents proposed to be filed with the
Commission in connection with such registration;
(d) furnish to each Holder of the securities being sold such number of
conformed copies of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits, except that the Issuer
shall not be obligated to furnish any Holder with more than two copies of such
exhibits), such number of copies of the prospectus included in such registration
statement (including such preliminary prospectus and any summary prospectus), in
conformity with the requirements of the Act, and such other documents, as such
Holder may reasonably request in order to facilitate the disposition of the
securities owned by such selling Holder;
(e) use its commercially reasonable efforts to register or qualify such
securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as each seller of the Registrable Securities
shall reasonably request, and do any and all other acts and things which may be
necessary or advisable to enable such seller to consummate the disposition in
such jurisdictions of the securities owned by such seller, except that the
Issuer shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it is not so
qualified, or to consent to service of process in any such jurisdiction other
than process served in connection with alleged violations by the Issuer of the
securities laws of such jurisdiction;
(f) notify the Holders of any Registrable Securities covered by such
registration statement promptly and (if requested) confirm such notice in
writing, (i) when a prospectus or any prospectus supplement or post-effective
amendment has been filed, and, with respect to such registration statement or
any post-effective amendment, when the same has become effective, (ii) of any
request by the Commission for amendments or supplements to such registration
statement or the related prospectus or for additional information regarding such
Holders, (iii) of the issuance by the Commission of any stop order suspending
the effectiveness of such registration statement or the initiation of any
proceedings for that purpose, (iv) of the receipt by the Issuer of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, and (v) of the happening of any event that requires the making of any
changes in such registration statement, prospectus or documents incorporated or
deemed to be incorporated therein by reference so that they will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading;
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(g) otherwise use its commercially reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve (12) months, but not more than eighteen
(18) months, beginning with the first month after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Act;
(h) use its commercially reasonable efforts to list such securities on any
stock market on which the Shares are then listed, if such securities are not
already so listed and if such listing is then permitted under the rules of such
exchange, and to provide a transfer agent and registrar for such Registrable
Securities not later than the effective date of such registration statement.
(i) if such registration is with respect to an underwritten offering
undertaken pursuant to Section 3.1, take all appropriate and commercially
reasonable actions requested by the Holders of a majority of the Registrable
Securities being sold in connection therewith (including those reasonably
requested by the managing underwriters) in order to expedite or facilitate the
disposition of such Registrable Securities;
(j) if such offering is in connection with an underwritten public offering
(i) use commercially reasonable efforts to obtain opinions of counsel to the
Issuer and updates thereof (which opinions (in form, scope and substance) shall
be reasonably satisfactory to the managing underwriters and their counsel) as to
the matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such counsel and
underwriters and have such opinions addressed to each selling Holder of
Registrable Securities, (ii) use commercially reasonable efforts to obtain "cold
comfort" letters and updates thereof from the independent certified public
accountants of the Issuer (and, if necessary, any other independent certified
public accountants of any subsidiary of the Issuer or of any business acquired
by the Issuer for which financial statements and financial data are, or are
required to be, included in the registration statement), addressed to each
selling Holder of Registrable Securities covered by the registration statement
(unless such accountants shall be prohibited from so addressing such letters by
applicable standards of the accounting profession) and each of the underwriters,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with underwritten
offerings, (iii) if requested, provide indemnification provisions and procedures
substantially to the effect set forth in Section 3.7 hereof with respect to all
parties to be indemnified pursuant to said Section (the above shall be done at
each closing under such underwriting or similar agreement, or as and to the
extent required thereunder).
For purposes of paragraph (b) of this Section 3.5, (i) the period of
distribution of securities in an underwritten public offering shall be deemed to
extend until the later of the date each underwriter has completed the
distribution of all securities purchased by it and the termination of the period
in which prospectuses must be delivered under Rule 174
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of the Securities Act, and (ii) the period of distribution of securities in any
other registration shall be deemed to extend until the earlier of the sale of
all securities covered thereby and one hundred twenty (120) days after the
effective date thereof; provided, however, in the case of a registration
statement on Form S-3 (or any successor provision) which the Holders shall have
requested providing for offers and sales pursuant to Rule 415 under the
Securities Act (or any successor provision), the Issuer shall comply with its
obligations under Section 5(b) until the Registrable Securities covered by such
registration statement have been disposed of, but no more than a period of one
year following the filing of such registration statement, it being understood
and agreed that the Issuer may suspend its obligations to amend or supplement
such registration statement for reasonable periods of time not to exceed 90 days
from time to time (a "Suspension Period") if any executive officer of the Issuer
determines in good faith that such amendment or supplement would require
disclosure of any material corporate development affecting the Issuer and the
Issuer promptly gives notice to the Holders of the Registrable Securities
included in such Registration Statement of such determination. The one year
period during which the Issuer is obligated to maintain such registration
statement shall be extended for the duration of any Suspension Period.
The Issuer may require each Holder of any securities as to which any
registration is being effected to furnish to the Issuer such information
regarding such Holder and the distribution of such securities as the Issuer may
from time to time reasonably request in writing and as shall be required by law
in connection therewith. Each such Holder agrees to furnish promptly to the
Issuer all information required to be disclosed in order to make the information
previously furnished to the Issuer by such Holder not materially misleading.
In connection with each registration pursuant to Section 3.1 or 3.2 hereof
covering an underwritten public offering, the Issuer and each selling Holder
agrees to enter into a written agreement with the managing underwriter selected
in the manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between major
underwriters and companies of the Issuer's size and investment stature and
selling security holders, provided that such agreement shall not contain any
such provision applicable to the Issuer or any Holder which is inconsistent with
the provisions hereof.
By acquisition of Registrable Securities, each Holder of such Registrable
Securities shall be deemed to have agreed that upon receipt of any notice from
the Issuer of the happening of any event of the kind described in Section 3.5(f)
hereof, such Holder shall promptly discontinue such Holder's disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3.5(f) hereof. If so
directed by the Issuer, each Holder of Registrable Securities shall deliver to
the Issuer (at the Issuer's expense) all copies, other than permanent file
copies, then in such Holder's possession of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event the Issuer shall give any such notice, the
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period mentioned in Section 3.5(b) shall be extended by the number of days
during the period from and including the date of the giving of such notice to
and including the date when each seller of any Registrable Securities covered by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by Section 3.5(f).
3.6. Expenses. Except as otherwise expressly provided in this Agreement,
--------
the Issuer shall pay all Registration Expenses in connection with each
registration of Registrable Securities.
3.7. Indemnification by the Issuer. The Issuer shall indemnify and hold
-----------------------------
harmless each Holder of Registrable Securities, each person who controls such
Holder of Registrable Securities within the meaning of either Section 15 of the
Act or Section 20(a) of the Exchange Act and the officers, directors, employees
and agents of each such Holder and control Person (each such Person being
sometimes hereinafter referred to as an "Indemnified Holder") from and against
all losses, claims, damages, liabilities, costs (including costs of preparation
and attorneys' fees) and expenses (including expenses of investigation)
(collectively, "Losses") arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or based upon any omission or alleged
omission to state therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, except insofar
as such losses, claims, damages, liabilities or expenses arise out of or are
based upon any such untrue statement or omission or allegation thereof based
upon information relating to such Indemnified Holder and furnished in writing to
the Issuer by such Indemnified Holder expressly for use therein. This indemnity
shall be in addition to any liability which the Issuer may otherwise have.
If any action or proceeding (including any governmental investigation or
inquiry) shall be brought or asserted against an Indemnified Holder in respect
of which indemnity may be sought from the Issuer, such Indemnified Holder shall
promptly notify the Issuer in writing, and the Issuer shall, at its expense,
assume the defense thereof, including the employment of counsel satisfactory to
such Indemnified Holder and the payment of all expenses. The failure so to
notify the Issuer shall not relieve the Issuer from any obligation or liability
except to the extent (but only to the extent) that it shall finally be
determined by a court of competent jurisdiction (which determination is not
subject to appeal) that the Issuer has been materially prejudiced by such
failure. Such Indemnified Holder shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Holder
unless (i) the Issuer has agreed to pay such fees and expenses or (ii) the
Issuer shall have failed promptly to assume the defense of such action or
proceeding or has failed to employ counsel satisfactory to such Indemnified
Holder or (iii) the named parties to any such action or proceeding (including
any impleaded parties) include both such Indemnified Holder and the Issuer or an
Affiliate of the Issuer, and there may be one or more defenses available to such
Indemnified Holder which are
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additional to, or in conflict with, those available to the Issuer or such
Affiliate (in which case, if such Indemnified Holder notifies the Issuer in
writing that it elects to employ separate counsel at the expense of the Issuer,
the Issuer shall have the right to approve such counsel (and such approval may
not be unreasonably withheld) and the Issuer shall not have the right to assume
the defense of such action or proceeding on behalf of such Indemnified Holder,
it being understood, however, that the Issuer shall not, in connection with any
one such 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 fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for such Indemnified Holder. The Issuer shall not be liable for any
settlement of any such action or proceeding effected without its written
consent, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such action or proceeding, the Issuer agrees
to indemnify and hold harmless such Indemnified Holders from and against any
loss or liability by reason of such settlement or judgment. Whether or not such
defense is assumed by the Issuer, no Indemnified Holder shall be subject to any
liability for any settlement made without its consent (but such consent shall
not be unreasonably withheld). The Issuer shall not consent to entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to each Indemnified Holder
of a release, in form and substance satisfactory to the Indemnified Holder, from
all liability in respect of such proceeding for which such Indemnified Holder
would be entitled to indemnification hereunder (whether or not any Indemnified
Holder is a party thereto).
3.8. Indemnification by Holders of Registrable Securities. Each Holder of
----------------------------------------------------
Registrable Securities agrees (severally but not jointly) to indemnify and hold
harmless the Issuer, its directors and officers and each Person, if any, who
controls the Issuer within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Issuer to such Holders, but only to the extent that such Losses arise
from information relating to such Holder furnished in writing by such holder
expressly for use in any registration statement or prospectus, or any amendment
or supplement thereto, or any preliminary prospectus. In case any action or
proceeding shall be brought against the Issuer or its directors or officers or
any such controlling person, in respect of which indemnity may be sought against
a Holder of Registrable Securities, such Holder shall have the rights and duties
given to the Issuer and the Issuer or its directors or officers or such
controlling person shall have the rights and duties given to each Holder by the
preceding paragraph.
3.9. Contribution. If the indemnification provided for in this Article III
------------
is unavailable to or insufficient to hold harmless an indemnified party under
Section 3.7 or Section 3.8 hereof (other than by reason of exceptions or other
limitations provided in those Sections) in respect of any Losses referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative
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benefits received by the Issuer on the one hand and the Holders on the other
hand from their sale of Registrable Securities or if such allocation is not
permitted by applicable law, the relative fault of the Issuer on the one hand
and of the Indemnified Holder on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of the Issuer on the one hand and of the Indemnified Holder on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Issuer or by the
Indemnified Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in the second paragraph of Section 3.7, any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim.
The Issuer and each Holder of Registrable Securities agree that it would
not be just and equitable if contribution pursuant to this Section 3.9 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
3.10. Participation in Public Offering. No Holder may participate in any
--------------------------------
public offering under Section 3.2 unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements complying with the requirements set forth in Section 3.5, including
provisions for indemnification of underwriters and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements and this Agreement.
3.11. Other Indemnification. Indemnification similar to that specified
---------------------
herein (with appropriate modifications) shall be given by the Issuer and each
Holder of Registrable Securities with respect to any required registration or
other qualification of securities under any state law or regulation or
governmental authority other than the Securities Act.
3.12 Public Reports. If the Issuer shall have filed a registration
--------------
statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act, the
Issuer thereafter shall use its commercially reasonable efforts to file the
reports required to be filed by it under the Exchange Act on a timely basis.
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ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
---------------------------------------------------------
The Company represents, warrants and covenants to each Holder as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite action and will not violate
any provision of law, any order of any court or other agency of government, the
Articles of Organization or Operating Agreement, or any provision of any
indenture, agreement or other instrument to which it or any of its properties or
assets is bound, or conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument, result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of the
Company.
(b) This Agreement has been duly executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.
(c) Neither the Company nor any successor Issuer will consummate a
Conversion or other transaction resulting in the issuance of Shares or Other
Securities unless and until proper provision shall have been made for the
assumption and performance by the successor Issuer of all the Company's and
Issuer's obligations under this Agreement.
ARTICLE V
MISCELLANEOUS
-------------
5.1. Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not control or affect the meaning or construction of
any provisions thereof.
5.3. No Inconsistent Agreements. The Issuer will not hereafter enter into
--------------------------
any agreement with respect to its securities which is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement. The
Issuer has not previously entered into any continuing agreement with respect to
any of its debt or equity securities granting any registration rights to any
person.
5.4. Remedies. The Issuer acknowledges and agrees that in the event of
--------
any breach of this agreement by it, the Holders would be irreparably harmed and
could not be made whole by monetary damages. The Issuer accordingly agrees (a)
to waive the defense in any action for specific performance that a remedy at law
would be adequate, and (b) that the Holders, in addition to any other remedy to
which they may be entitled at law or in equity, shall be entitled to compel
specific performance of this Agreement.
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5.5. Entire Agreement. This Agreement constitutes the entire agreement and
----------------
understanding of the parties hereto in respect of the subject matter contained
herein and therein, and there are no restrictions, promises, representations,
warranties, covenants, or undertakings with respect to the subject matter
hereof, other than those expressly set forth or referred to herein or therein.
This Agreement supersedes all prior agreements and understandings between the
parties hereto with respect to the subject matter hereof.
5.6. Notices. All notices, requests, demands, and other communications
-------
hereunder shall be in writing and shall be delivered (a) in person or by
courier, (b) mailed by first class registered or certified mail, or (c)
delivered by facsimile transmission, as follows:
(a) If to MasterCard:
MasterCard International Incorporated
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Executive Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy (which shall not constitute notice) to:
MasterCard International Incorporated
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Xx.
General Counsel
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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(b) If to the Issuer:
Global Payment Systems LLC
National Data Plaza
Atlanta, Georgia 30329-2010
Attention: Xx. Xxxxxx X. Xxxxxxxxxx
Chief Executive Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy (which shall not constitute notice) to:
Global Payment Systems LLC
Xxxxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: E. Xxxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx & Bird
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: B. Xxxxxx Xxxx, Xx., Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
or to such other address as the parties hereto may designate in writing to the
other in accordance with this Section 5.6. Any party may change the address to
which notices are to be sent by giving written notice of such change of address
to the other parties in the manner above provided for giving notice. If
delivered personally or by courier, the date on which the notice, request,
instruction or document is delivered shall be the date on which such delivery is
made and if delivered by facsimile transmission or mail as aforesaid, the date
on which such notice, request, instruction or document is received shall be the
date of delivery.
5.7. Applicable Law. The laws of the State of Georgia shall govern the
--------------
interpretation, validity and performance of the terms of this Agreement,
regardless of the law that might be applied under applicable principles of
conflicts of laws.
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5.8. Severability. The invalidity or unenforceability of any provisions
------------
of this Agreement in any jurisdiction shall not affect the validity, legality or
enforceability of the remainder of this Agreement in such jurisdiction or the
validity, legality or enforceability of this Agreement, including any such
provision, in any other jurisdiction, it being intended that all rights and
obligations of the parties hereunder shall be enforceable to the fullest extent
permitted by law.
5.9. Successors, Assigns, Transferees. The provisions of this Agreement
--------------------------------
shall be binding upon and accrue to the benefit of the parties hereto and their
respective heirs, successors, and assigns. Without limiting the generality of
the foregoing, the registration rights conferred herein on the Holders of the
Registrable Securities shall inure to the benefit of any and all subsequent
Holders from time to time of the Registrable Securities, unless otherwise agreed
to by such subsequent Holders; provided that such subsequent Holders promptly
--------
provide the Issuer with their names and addresses.
5.10. Defaults. A default by any party to this Agreement in such party's
--------
compliance with any of the conditions or covenants hereof or performance of any
of the obligations of such party hereunder shall not constitute a default by any
other party.
5.11. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
5.12. Attorneys' Fees. In any action or proceeding brought to enforce any
---------------
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the successful party shall be entitled to recover reasonable
attorneys' fees in addition to any other available remedy.
5.13. Recapitalization, etc. In the event that any capital stock or other
----------------------
securities are issued in respect of, in exchange for, or in substitution of, any
Registrable Securities by reason of any reorganization, recapitalization,
reclassification, merger, consolidation, spin-off, partial or complete
liquidation, stock dividend, split-up, sale of assets, distribution to
stockholders or combination of the Shares or any other change in capital
structure of the Issuer, appropriate adjustment shall be made in the provisions
of this Agreement so as to fairly and equitably preserve, as far as practicable,
the original rights of the Holders under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
HOLDER:
MASTERCARD INTERNATIONAL INCORPORATED
By: /s/ Xxxxxxx X Xxxxxx
-------------------------------------
Xxxxxxx X Xxxxxx
Executive Vice President
THE COMPANY:
GLOBAL PAYMENT SYSTEMS LLC
By: GPS Holding Limited Partnership, a
Member
By: National Data Corporation, its General
Partner
By: /s/ E. Xxxxxxx Xxxxxx
--------------------------------------
E. Xxxxxxx Xxxxxx
Senior Vice President
THIS IS THE SIGNATURE PAGE OF THAT CERTAIN REGISTRATION RIGHTS
AGREEMENT DATED AS OF APRIL 1, 1996
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