Exhibit 99.2
SCHEDULE 8
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") dated as
of February 4, 2005 by and among A.O.S. Holding B.V., a private limited
liability company organized under the laws of The Netherlands ("SELLER"),
Filipan Beheer B.V., a private limited liability company organized under the
laws of the Netherlands ("FILIPAN BEHEER"), Mr. Mladen Filipan ("FILIPAN"),
Pijnenburg Beheer N.V. ("PIJNENBURG BEHEER") and VASCO Data Security
International, Inc., a Delaware corporation ( "VASCO").
WHEREAS, simultaneously with the execution and delivery of
this Agreement, Seller, VASCO, Filipan Beheer B.V., Filipan and Pijnenburg
Beheer are entering into The Share Sale and Purchase Agreement dated the date
hereof (the "PURCHASE AGREEMENT"), pursuant to which Seller is selling to VASCO
and VASCO is purchasing from Seller all of the issued and outstanding capital
stock of A.O.S. Hagenuk B.V., and Seller is receiving, as partial consideration
for the sale, shares (the "CONSIDERATION SHARES") of the class of common stock,
par value $.001 per share, of VASCO (the "COMMON STOCK") (TERMS NOT DEFINED
HEREIN SHALL HAVE THE MEANINGS ASCRIBED TO THEM IN THE PURCHASE AGREEMENT); and
WHEREAS, VASCO desires to grant to Seller the registration
rights set forth herein with respect to the Consideration Shares.
NOW, THEREFORE, the parties hereto mutually agree as follows:
Section 1. REGISTRABLE SECURITIES. As used herein the term
"REGISTRABLE SECURITY" means all of the Consideration Shares; PROVIDED, HOWEVER,
that any such Registrable Securities shall cease to be Registrable Securities
(i) when sold pursuant to the Registration Statement (as defined below), (ii)
when sold pursuant to Rule 144 (or any similar provision then in force) under
the Securities Act ("RULE 144") or (iii) such time as, in the opinion of counsel
to VASCO, such Consideration Shares may be sold pursuant to Rule 144(k) (or any
similar provision then in effect) under the Securities Act. In the event of any
merger, reorganization, consolidation, recapitalization or other change in
corporate structure affecting the Common Stock, such adjustment shall be deemed
to be made in the definition of "Registrable Security" as is appropriate in
order to prevent any dilution or enlargement of the rights granted pursuant to
this Agreement.
Section 2. RESTRICTIONS ON TRANSFER. Seller acknowledges and
understands that, in the absence of an effective Registration Statement covering
the resale of the Consideration Shares as provided herein, the Consideration
Shares are "restricted securities" as defined in Rule 144. Seller understands
that no disposition or transfer of the Consideration Shares may be made by
Seller in the absence of (i) an opinion of counsel to Seller, in form and
substance reasonably satisfactory to VASCO, that such transfer may be made
without registration under the Securities Act or (ii) such registration.
With a view to making available to Seller the benefits of Rule
144, VASCO agrees:
(a) to comply with the provisions of paragraph (c)(1)
of Rule 144; and
(b) to use commercially reasonable efforts to file
with the Securities and Exchange Commission (the "COMMISSION") in a timely
manner all reports and other documents required to be filed by VASCO pursuant to
Section 13(a) or 15(d) under the Exchange Act; and furnish Seller with such
other reports and documents of VASCO as Seller may reasonably request to avail
itself of any similar rule or regulation of the Commission allowing it to sell
any such securities without registration.
Section 3. REGISTRATION RIGHTS WITH RESPECT TO THE SECURITIES.
(a) VASCO agrees that it will prepare and file with
the Commission, within sixty (60) days after the date hereof (the "Filing
Date"), a registration statement (on Form S-3, or other appropriate form of
registration statement) under the Securities Act (the "REGISTRATION STATEMENT"),
at the sole expense of VASCO (except as provided in Section 3(c) hereof), in
respect of Seller, so as to permit a public offering and resale of the
Consideration Shares under the Securities Act by Seller. VASCO shall use
commercially reasonable efforts to cause the Registration Statement to become
effective within one-hundred eighty (180) days of the Filing Date or five (5)
days following notice from the Commission staff indicating it has completed its
review, or has determined it will not review, the Registration Statement, and
will within said five (5) days request acceleration of the effective date and
time of the Registration Statement. VASCO will notify Seller of the
effectiveness of the Registration Statement within one business day of such
event.
(b) VASCO will maintain the Registration Statement or
post-effective amendment filed under this Section 3 hereof effective under the
Securities Act until the earliest of the date on which Seller no longer holds
Registrable Securities and 360 days from the date the Registrable Securities are
issued.
(c) All fees, disbursements and out-of-pocket
expenses and costs incurred by VASCO in connection with the preparation and
filing of the Registration Statement under subparagraph 3(a) and in complying
with applicable federal and state securities laws (including, without
limitation, all attorneys' fees of VASCO) shall be borne by VASCO. Seller shall
bear the cost of underwriting and/or brokerage discounts, fees and commissions,
if any, applicable to the Consideration Shares being registered and the fees and
expenses of its counsel. Seller and its counsel shall have a reasonable period,
not to exceed two (2) business days, to review the proposed Registration
Statement or any amendment thereto, prior to filing with the Commission, and
VASCO shall provide Seller with copies of any comment letters received from the
Commission with respect thereto within two (2) business days of receipt thereof.
VASCO shall make reasonably available for inspection by Seller, any underwriter
participating in any disposition pursuant to the Registration Statement, and any
attorney, accountant or other agent retained by Seller or any such underwriter
all relevant financial and other records, pertinent corporate documents and
properties of VASCO and its subsidiaries, and cause VASCO's officers, directors
and employees to supply all information reasonably requested by Seller or any
such underwriter, attorney, accountant or agent in connection with the
Registration Statement; PROVIDED, HOWEVER, that all records, information and
documents supplied by VASCO shall be kept confidential by Seller and any such
underwriter, attorney, accountant or agent, unless such disclosure is made
pursuant to judicial process in a court proceeding (after first giving VASCO an
opportunity promptly to seek a protective order or otherwise limit the scope of
the information sought to be disclosed) or is required by law, or such records,
information or documents become available to the public through a third party
not in violation of an accompanying obligation of
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confidentiality; and PROVIDED FURTHER that, if the foregoing inspection and
information gathering would otherwise disrupt VASCO's conduct of its business,
such inspection and information gathering shall, to the maximum extent possible,
be coordinated on behalf of Seller and the other parties entitled thereto by one
firm of counsel designed by and on behalf of the majority in interest of Seller
and other parties. VASCO at its expense will supply Seller with such reasonable
number of copies of the Registration Statement and the final prospectus included
therein (the "PROSPECTUS") and other related documents as Seller may request in
order to facilitate the public sale or other disposition of the Registrable
Securities.
(d) If at any time or from time to time after the
effective date of the Registration Statement, VASCO notifies Seller in writing
of the existence of a Potential Material Event (as defined in Section 3(e)
below), Seller shall cease to offer or sell any Consideration Shares under the
Registration Statement or engage in any other transaction involving or relating
to Consideration Shares, from the time of the giving of notice with respect to a
Potential Material Event until Seller has received copies of a supplemented or
amended Prospectus or until Seller is advised in writing by VASCO that the
Prospectus may be used and has received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference in such
Prospectus.
(e) "POTENTIAL MATERIAL EVENT" means any of the
following: (i) the possession by VASCO of material information that is not ripe
for disclosure in a registration statement, as determined in good faith by the
Chief Executive Officer or the Board of Directors of VASCO or that disclosure of
such information in the Registration Statement would be detrimental to the
business or affairs of VASCO; or (ii) any material engagement, development or
activity by VASCO which would, in the good faith determination of the Chief
Executive Officer or the Board of Directors of VASCO, be adversely affected by
disclosure in a registration statement at such time, which determination shall
be accompanied by a good faith determination by the Chief Executive Officer or
the Board of Directors of VASCO that the Registration Statement would be
materially misleading absent the inclusion of such information; or (iii)
pursuant to applicable law, a fundamental change in the information set forth in
the Registration Statement that requires VASCO to file a post-effective
amendment to the Registration Statement, change the plan of distribution to the
Prospectus, or must update the information included in the Prospectus pursuant
to Section 10(a)(3) of the Securities Act.
Section 4. COOPERATION WITH COMPANY. Seller will cooperate
with VASCO in all respects in connection with this Agreement, including timely
supplying all information reasonably requested by VASCO (which shall include all
information regarding Seller and proposed manner of sale of the Registrable
Securities required to be disclosed in the Registration Statement) and executing
and returning all documents reasonably requested in connection with the
registration and sale of the Registrable Securities and entering into and
performing its obligations under any underwriting agreement, if the offering is
an underwritten offering, in usual and customary form, with the managing
underwriter or underwriters of such underwritten offering. Seller hereby
consents to be named as an underwriter in the Registration Statement.
Section 5. REGISTRATION PROCEDURES. VASCO shall (except as
otherwise provided in this Agreement) subject to Seller's assistance and
cooperation as reasonably required:
(a) comply with the provisions of the Securities Act
with respect to the sale or other disposition of the Consideration Shares
covered by the Registration Statement;
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(b) prior to filing the Registration Statement
(including any amendments thereto) and the distribution or delivery of the
Prospectus (including any supplements thereto), provide draft copies thereof to
Seller and its counsel and (ii) furnish to Seller such numbers of copies of the
Prospectus including a preliminary prospectus or any amendment or supplement to
the Prospectus, as applicable, in conformity with the requirements of the
Securities Act, and such other documents, as Seller may reasonably request in
order to facilitate the public sale or other disposition of the Registrable
Securities;
(c) use commercially reasonable efforts to register
or qualify the Registrable Securities covered by the Registration Statement
under the applicable blue sky laws as requested by Seller (subject to the
limitations set forth in Section 3(c) above), and do any and all other acts and
things which may be reasonably necessary or advisable to enable Seller to
consummate the public sale or other disposition in such jurisdiction of the
Registrable Securities, except that VASCO shall not for any such purpose be
required to qualify to do business as a foreign corporation in any jurisdiction
wherein it is not so qualified or to execute any general consent to service of
process;
(d) list such Registrable Securities on any exchange
or market on which the Common Stock is then listed, if the listing of such
Registrable Securities is then required under the rules of such exchange or
market;
(e) after becoming aware of such event, promptly
notify Seller (or, in the event of an underwritten offering, the managing
underwriters) of the issuance by the Commission or any state authority of any
stop order or other suspension of the effectiveness of the Registration
Statement and use commercially reasonable efforts to effect the withdrawal,
rescission or removal of such stop order or other suspension; and
(f) maintain a transfer agent for the Common Stock.
Section 6. INDEMNIFICATION.
(a) VASCO agrees to indemnify and hold harmless
Seller and each person, if any, who controls Seller within the meaning of the
Securities Act ("DISTRIBUTING PERSON") against any losses, claims, damages or
liabilities, joint or several (which shall, for all purposes of this Agreement,
include, but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees), to which the Distributing
Person may become subject, under the Securities Act 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 any material fact contained in the Registration Statement, or any related
preliminary prospectus, the Prospectus or amendment 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 in order to make the
statements made, in light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that VASCO 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 an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, preliminary prospectus, the
Prospectus or amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to VASCO by the Distributing
Person specifically for use in the preparation thereof. This Section 6(a) shall
not inure to the benefit of any Distributing Person with respect to any person
asserting such loss,
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claim, damage or liability who purchased the Registrable Securities which are
the subject thereof if the Distributing Person failed to send or give (in
violation of the Securities Act or the rules and regulations promulgated
thereunder) a copy of the Prospectus to such person at or prior to the written
confirmation to such person of the sale of such Registrable Securities, where
the Distributing Person was obligated to do so under the Securities Act or the
rules and regulations promulgated thereunder. This indemnity will be the sole
remedy for Seller and the Distributing Person and will be limited to the value
of the Consideration Shares on the Closing.
(b) Each of Seller, Filipan Beheer, Filipan and
Pijnenburg Beheer agrees that it will indemnify and hold harmless VASCO, and
each officer, director of VASCO or person, if any, who controls VASCO within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities (which shall, for all purposes of this Agreement, include, but not
be limited to, all reasonable costs of defense and investigation and all
reasonable attorneys' fees) to which VASCO or any such officer, director or
controlling person may become subject under the Securities Act 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 any material fact contained in the Registration Statement, or any
related preliminary prospectus, the Prospectus or amendment or supplement
thereto, or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary in
order to make the statements made, in light of the circumstances under which
they were made, not misleading, but in each case only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in the Registration Statement, preliminary prospectus, the Prospectus or
amendment or supplement thereto in reliance upon, and in conformity with,
written information furnished to VASCO by Seller specifically for use in the
preparation thereof.
(c) Promptly after receipt by an indemnified party
under this Section 6 of notice of the commencement of any action as to which
indemnity may be sought under this Section 6, notify the indemnifying party of
the commencement thereof and shall permit the indemnifying party to assume the
defense of any claim or any litigation resulting therefrom; but the failure to
notify the indemnifying party will not relieve the indemnifying party from any
obligations which it may have to any indemnified party except to the extent of
actual prejudice demonstrated by the indemnifying party. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section 6 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation, unless the indemnifying party shall not
pursue the action to its final conclusion. The indemnified party shall have the
right, at such party's own expense, to employ separate counsel in any such
action and to participate in the defense thereof; provided that the indemnifying
party shall pay such expense if: (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party, or (ii) the named
parties to any such action (including any impleaded parties) include both the
indemnified party and the indemnifying party and the indemnified party
reasonably concludes that representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to a
conflict of interest between the indemnified party and any other party
represented by such counsel in such proceeding; provided further that in no
event shall the indemnifying party be required to pay the expenses of more than
one law firm per jurisdiction as counsel for the indemnified party. No
indemnifying party, in the defense of any such claim or litigation shall, except
with the consent of each indemnified party, consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such
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indemnified party of a release from all liability in respect of such claim or
litigation, and no indemnified party shall consent to entry of any judgment or
settle such claim or litigation without the prior written consent of the
indemnifying party, which consent shall not be unreasonably withheld,
conditioned or delayed.
Section 7. NOTICES. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder shall be in
writing and, unless otherwise specified herein, shall be delivered as set forth
in the Purchase Agreement.
Section 8. ASSIGNMENT. Neither this Agreement nor any rights
of Seller or VASCO hereunder may be assigned by either party to any other
person.
Section 9. COUNTERPARTS/FACSIMILE. This Agreement may be
executed in two or more counterparts, each of which shall constitute an
original, but all of which, when together shall constitute but one and the same
instrument, and shall become effective when one or more counterparts have been
signed by each party hereto and delivered to the other party. In lieu of the
original, a facsimile transmission or copy of the original shall be as effective
and enforceable as the original.
Section 10. REMEDIES AND SEVERABILITY. The remedies provided
in this Agreement are cumulative and not exclusive of any remedies provided by
law. If any term, provision, covenant or restriction of this Agreement is held
by a court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of those that may
be hereafter declared invalid, illegal, void or unenforceable.
Section 11. HEADINGS. The headings in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 12. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Illinois applicable to
contracts made in Illinois and without regard to its principles of conflicts of
laws. VASCO and Seller agree to submit themselves to the IN PERSONAM
jurisdiction of the state and federal courts situated within the Northern
District of the State of Illinois and agree that such courts shall have
exclusive jurisdiction with regard to any controversy arising out of or relating
to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Registration Rights Agreement to be duly executed as of the date set forth
above.
VASCO DATA SECURITY INTERNATIONAL, INC.
By:
--------------------------------
Name:
Title:
A.O.S. HOLDING B.V.
By:
--------------------------------
Name:
Title:
FILIPAN BEHEER B.V.
By:
--------------------------------
Name: M. Filipan
Title: Managing Director
MLADEN FILIPAN
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PIJNENBURG BEHEER N.V.
By:
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Name: C. Pijnenburg
Title: Managing Director
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