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EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of May
25, 2000 by and among S1 Corporation (the "Company") and each holder of "Series
D Preferred Stock" (as that term is defined below) listed on Schedule 1 attached
hereto (each a "Series D Holder"; collectively, the "Series D Holders"). The
Series D Holders, together with their respective successors and assigns, are
sometimes hereinafter referred to collectively as the "Investors" and
individually as an "Investor." The Investors and any other persons or entities
(except the Company) becoming a party hereto or being bound by the provisions
hereof are hereinafter sometimes referred to collectively as "Stockholders" or
individually as a "Stockholder."
RECITALS
A. On the date hereof, the Company and the Investors are entering into a
Stock Purchase Agreement dated of even date herewith (the "Purchase Agreement").
A condition precedent to the obligations of the Company and the Investors under
the Purchase Agreement is the execution and delivery by the parties hereto of
this Agreement;
B. At the closing to be held under the Purchase Agreement, each Investor
has agreed to purchase that number of shares of the Company's Series D
Convertible Preferred Stock, par value $.01 per share (the "Series D Preferred
Stock"), as is set forth opposite such Investor's name in Schedule 1 attached
hereto; and
C. The Company and the Investors wish to enter into this Agreement in
order to provide the Investors with certain registration rights with respect to
the Company's "Registrable Stock" (as that term is defined below).
NOW, THEREFORE, in consideration of these premises and mutual agreements,
covenants and provisions herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
The following definitions shall be applicable to the terms set forth
below as used in this Agreement:
"Affiliate." The term "Affiliate" means, with respect to any
Person, any other Person which directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with such
Person.
"Board." The term "Board" shall mean the Board of Directors of the
Company.
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"Closing." The term "Closing" shall mean the closing held pursuant
to the Purchase Agreement.
"Commission." The term "Commission" shall mean the Securities and
Exchange Commission or any other federal agency at the time administering the
federal securities laws.
"Common Stock." The term "Common Stock" shall mean the common
stock of the Company, par value $.01 per share.
"Conversion Shares." The term "Conversion Shares" shall mean any
shares of Common Stock issued or issuable upon conversion of shares of Series D
Preferred Stock.
"Exchange Act." The term "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
"Filing Date." The term "Filing Date" shall mean the earlier of
the date (i) 15 business days following the date the Conversion Shares are
released from the "Lock-up" (as such term is defined in Section 4.1 of the
Purchase Agreement) pursuant to Section 4.2 of the Purchase Agreement, or (ii)
eleven months after the date of the Closing, provided, however, that if as of
such earlier date the Company shall not then have available financial statements
in a form suitable for filing on, or incorporating into, a registration
statement under the rules of the Commission, then the Filing Date shall be that
date which is three business days after such financial statements become
available.
"Permitted Transferee." The term "Permitted Transferee" shall
mean, with respect to any Investor, (i) any other Investor; (ii) any Affiliate
of any Investor; (iii) any spouse, child and grandchild of an Investor, or a
trust for the benefit of any one or more members of such person; or (iv) any
shareholder or partner of any non-natural Investor upon a pro rata distribution
by a partnership or limited liability company to its partners or members or
otherwise upon the dissolution or liquidation of the non-natural Investor.
"Person." The term "Person" shall mean any individual, firm,
corporation, partnership, limited liability company, trust, joint venture,
governmental authority or other entity, and shall include any successor (by
merger or otherwise) of such entity.
"Register." The terms "register," "registered" and "registration"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act.
"Registrable Stock." The term "Registrable Stock" shall mean, (i)
any Conversion Shares which have been released from the Lock-up pursuant to
Section 4.2 of the Purchase Agreement, and (ii) any shares of Common Stock
issued or issuable with respect to such Conversion Shares by reason of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. A Person shall
be deemed to be a holder of Registrable Stock when such Person has a right to
acquire such Registrable Stock (whether by conversion or otherwise) regardless
of whether such acquisition has actually been effected. Each share of
Registrable Stock shall continue to be Registrable
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Stock in the hands of each subsequent holder thereof subject to the limitations
set forth in Section 2.8 hereof; provided, however, that each share of
Registrable Stock shall cease to be Registrable Stock when (x) transferred by an
Investor to any Person who is not a Permitted Transferee, or if the transfer
does not comply with the terms of Section 2.8 of this Agreement, (y) a
registration statement covering all Registrable Stock has been declared
effective under the Securities Act by the SEC and such Registrable Stock has
been disposed of pursuant to such effective registration statement, or (z) the
entire amount of Registrable Stock held by a Person and its Affiliates may be
distributed to the public in a single sale without any limitation as to volume
for such sale pursuant to Rule 144 (or any successor provision then in effect)
under the Securities Act.
"Securities Act." The term "Securities Act" shall mean the
Securities Act of 1933, as amended.
"Short-Form Registration Statement." The term "Short-Form
Registration Statement" shall mean a registration statement on Form S-3 or any
similar form of registration statement adopted by the Commission from and after
the date hereof.
"Transaction Documents." The term "Transaction Documents" means,
collectively, this Agreement and the Purchase Agreement.
Section 1.2 Additional Definitions.
In addition to the foregoing, capitalized terms used in this
Agreement and not otherwise defined in this Article I shall have the meanings so
given to such terms herein.
ARTICLE II
REGISTRATION RIGHTS
Section 2.1 Filing of Short-Form Registration Statement.
No later than the Filing Date, the Company shall file with the SEC a
Short-Form Registration Statement under the Securities Act covering the resale
of the Registrable Stock; provided, however, that if, on the Filing Date, a
Short-Form Registration Statement is unavailable to the Company for such
registration solely due to the Corporation's failure to timely comply with its
reporting obligations under the Exchange Act, such registration will be promptly
made on Form S-1 or any similar form of registration statement adopted by the
Commission from and after the date hereof. Notwithstanding the foregoing, if,
prior to the filing of such registration statement, the Company shall have
furnished to each of the Investors a certificate signed by an authorized officer
of the Company stating that, in the good faith judgment of the Board, (A) it is
in the best interests of the Company not to disclose the existence of material
facts surrounding any proposed or pending acquisition, disposition, strategic
alliance or financing transaction involving the Company, the existence of which
the Company has a bona fide business purpose for keeping confidential and the
nondisclosure of which in the registration statement
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would reasonably be expected to cause the registration statement to fail to
comply with applicable disclosure requirements, or (B) it would be seriously
detrimental to the Company and its stockholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, then the Company shall have the right to defer such
filing for a period of not more than 60 days from the Filing Date.
Section 2.2 Effective Period of Registration.
The Company shall use its reasonable best efforts to cause the
registration statement filed pursuant to Section 2.1 hereof to be declared
effective by the Commission as soon as practicable after it has been filed. Once
any registration pursuant to this Article II becomes effective, the Company
shall file all reports, financial statements and other documents necessary to
keep such registration statement current and the registration in effect until
the earlier of (i) the sale of all shares of Registrable Stock offered for sale
pursuant to the registration statement, or (ii) the second anniversary of the
Closing (the "Effective Period"); provided, however that at any time during the
Effective Period, the Company may determine, in the good faith judgment of its
Board, that offers and sales under the registration statement shall be suspended
if it is in the best interests of the Company not to disclose the existence of
material facts surrounding any proposed or pending acquisition, disposition,
strategic alliance or financing transaction involving the Company, the existence
of which the Company has a bona fide business purpose for keeping confidential
and the nondisclosure of which in the registration statement would reasonably be
expected to cause the registration statement to fail to comply with applicable
disclosure requirements. Immediately upon making such a determination, the
Company shall give notice to the Investors (a "Materiality Notice"), upon
receipt of which each Investor agrees that it will immediately discontinue
offers and sales of Registrable Stock under the registration statement until
such Investor receives copies of a supplemented or amended prospectus that
corrects the misstatement(s) or omission(s) referred to above and receives
notice that any post-effective amendment has become effective; provided, that
(x) the Company may delay, suspend or withdraw the registration statement for
such reason for no more than 30 days after the abandonment or consummation of
any of the foregoing negotiations, transactions, events or offerings or, in any
event, for not more than 60 days after delivery of the Materiality Notice at any
one time during any period of 12 consecutive months (and the Company shall not
be entitled to deliver a Materiality Notice at any time within 180 days of any
prior termination of any suspension pursuant to a prior Materiality Notice), and
(y) the Company may not impose such a suspension or a postponement following the
printing and distribution of a preliminary prospectus in any public offering of
Registrable Stock (except such suspension, not to exceed ten days, which results
from an event that is not within the reasonable control of the Company). If so
directed by the Company, each Investor will deliver to the Company all copies of
the prospectus covering the Registrable Stock current at the time of receipt of
a Materiality Notice.
Section 2.3 Registration Procedures.
(a) When the Company is required by the provisions of this Agreement to
effect the registration of shares of Registrable Stock, the Company shall:
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(i) prepare and file with the Commission a registration
statement on the form as described in Section 2.1 hereof (advance draft copies
of which shall be furnished to the holders of Registrable Stock to be included
in such registration and their respective counsel at least five business days
prior to the filing thereof with the Commission) with respect to such shares and
use its reasonable best efforts to cause such registration statement to become
and remain effective for the Effective Period as described in Section 2.2
hereof;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectuses used in
connection therewith as may be necessary to keep such registration statement
effective and current and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all shares covered by such
registration statement, including such amendments and supplements as may be
necessary to reflect the intended method of disposition from time to time of the
holder or holders of Registrable Stock who have requested that any of their
shares be sold or otherwise disposed of in connection with the registration
(collectively, the "Prospective Sellers") or to correct or update any
misstatements or omissions which, if not corrected or updated, would reasonably
be expected to cause the registration statement or the prospectuses used in
connection therewith to fail to comply with applicable disclosure requirements;
(iii) furnish to each Prospective Seller such number of copies of
each prospectus, including preliminary prospectuses and amendments and
supplements to any prospectus, in conformity with the requirements of the
Securities Act, and such other documents as the Prospective Seller may
reasonably request in order to facilitate the public sale or other disposition
of the shares owned by it;
(iv) use its reasonable best efforts to register or qualify the
shares covered by such registration statement under such other securities or
blue sky or other applicable laws of such jurisdictions as each Prospective
Seller shall reasonably request to enable such seller to consummate the public
sale or other disposition of the shares owned by such seller, provided that the
Company shall not be required in connection therewith or as an election thereto
to qualify to do business or to file a general consent to service of process in
any such jurisdiction;
(v) upon written request, furnish to each Prospective Seller a
signed counterpart, addressed to the Prospective Sellers of: (A) an opinion of
counsel for the Company, dated the effective date of the registration statement;
and (B) a "comfort" letter signed by the independent public accountants of the
Company who have certified the Company's financial statements included in the
registration statement, covering substantially the same matters with respect to
the registration statement (and the prospectus included therein) and (in the
case of the accountants' "comfort" letter) with respect to the events subsequent
to the date of the financial statements, as are customarily covered (at the time
of such registration) in the opinions of issuers' counsel and in accountants'
letters delivered to underwriters in connection with underwritten public
offerings of securities;
(vi) cause all such Registrable Stock to be listed on the Nasdaq
National Market System or such other securities exchange or other securities
trading market on
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which similar securities issued by the Company are then listed no later than the
first day of the Effective Period;
(vii) provide a transfer agent and registrar for all such
Registrable Stock not later than the effective date of such registration
statement;
(viii) enter into such customary agreements and take all such
other customary actions as the holders of a majority of the Registrable Stock
being sold reasonably request in order to expedite or facilitate the disposition
of such Registrable Stock;
(ix) make available for inspection by any Prospective Seller and
any attorney, accountant or other agent retained by any such Prospective Seller,
all reasonable financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors,
employees and independent public accountants who have certified the Company's
financial statements included in the registration statement to supply all
information reasonably requested by any such seller, attorney, accountant or
agent in connection with the preparation of such registration statement;
(x) permit any Prospective Seller who, in the reasonable
judgment of the Company upon advice of counsel, might be deemed to be an
underwriter or controlling person of the Company, to participate in the
preparation of such registration statement;
(xi) provide facsimile or written notice to each Prospective
Seller as soon as the Company becomes aware of any misstatements or omissions
which, if not corrected or updated, would reasonably be expected to cause the
registration statement or the prospectuses used in connection therewith to fail
to comply with applicable disclosure requirements; and
(xii) in the event of the issuance of any stop order suspending
the effectiveness of the registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the registration or
qualification of any Registrable Stock included in such registration statement
for sale in any jurisdiction where such shares had previously been registered or
qualified upon the request of a Prospective Seller, use its reasonable best
efforts to promptly obtain the withdrawal of such order.
(b) Each Prospective Seller of Registrable Stock shall furnish to the
Company such information as the Company may reasonably require from the
Prospective Seller for inclusion in the registration statement (and the
prospectus included therein).
(c) The Prospective Sellers shall not effect sales of the shares
covered by the registration statement after receipt of facsimile or other
written notice from the Company to suspend sales to permit the Company to
correct or update a registration statement or prospectus until such Investor
receives copies of a supplemented or amended prospectus that corrects the
misstatement(s) or omission(s) referred to above and receives notice that any
post-effective amendment has become effective.
(d) The Company shall have no obligation to permit the holders of
Registrable Stock to dispose of their shares pursuant to an underwritten
offering.
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Section 2.4 Registration Expenses.
The Company shall pay all registration expenses relating to the
registration statement under Section 2.1 including all registration and filing
fees, exchange listing fees, printing expenses, fees and disbursements of
counsel for the Company, state blue sky fees and expenses and the expense of any
special audits incident to or required by any such registration, but shall
exclude Selling Expenses. As used herein, the term "Selling Expenses" shall
mean, collectively, any selling commissions, brokerage fees and the fees and
expenses of counsel for each holder of Registrable Stock.
Section 2.5 Indemnification.
(a) In the event any Prospective Seller sells shares of Registrable
Stock pursuant to any registration under the Securities Act pursuant to this
Agreement, the Company shall indemnify and hold harmless each Prospective
Seller, each underwriter (as defined in the Securities Act) and each controlling
person of any Prospective Seller or underwriter, if any (within the meaning of
the Securities Act), against any losses, claims, damages or liabilities, joint
or several (or actions in respect thereof), to which such Prospective Seller,
underwriter or controlling person may be subject under the Securities Act, under
any other statute or at common law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement (or alleged untrue statement) of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any summary prospectus issued in connection
with any securities being registered, or any amendment or supplement thereto, or
any other document, (ii) any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) any violation by the Company of the Securities
Act or any blue sky law, or any rule or regulation promulgated under the
Securities Act or any blue sky law, or any other law, applicable to the Company
in connection with any such registration, qualification or compliance of any
shares of Registrable Stock, and shall reimburse each such Prospective Seller,
underwriter or controlling person for any legal or other expenses reasonably
incurred by such Prospective Seller, underwriter or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be liable to
any Prospective Seller, underwriter or controlling person in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or omission made in such registration
statement, preliminary prospectus, summary prospectus, final prospectus, or
amendment or supplement thereto, or any other document, in reliance upon and in
conformity with written information furnished to the Company by such Prospective
Seller, underwriter or controlling person, respectively, specifically for use
therein. The indemnity provided for herein shall remain in full force and effect
regardless of any investigation made by or on behalf of such Prospective Seller,
underwriter or controlling person, and shall survive the transfer of such
securities by such Prospective Seller.
(b) The Company may require, as a condition to including any
Registrable Stock of a Prospective Seller in any registration statement filed
pursuant to Section 2.1 that the Company shall have received an undertaking
satisfactory to it from such Prospective Seller,
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severally and not jointly, to indemnify and hold harmless (in the same manner
and to the same extent as set forth in Section 2.5(a)) the Company, each
director of the Company, each officer of the Company who shall sign such
registration statement and each other person, if any, who controls the Company
within the meaning of the Securities Act (except the indemnifying Prospective
Seller, if such indemnifying Prospective Seller so controls the Company), with
respect to (i) any untrue statement (or alleged untrue statement) of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus
or final prospectus contained therein, or any summary prospectus issued in
connection with any securities being registered, or any amendment or supplement
thereto, or any other document, (ii) any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (iii) any violation by the Prospective
Seller of the Securities Act or any blue sky law, or any rule or regulation
promulgated under the Securities Act or any blue sky law, or any other law,
applicable to the Company in connection with any such registration,
qualification or compliance of any shares of Registrable Stock, in each case if
such statement or omission was made in reliance on and in conformity with
written information furnished to the Company by such Prospective Seller
specifically for use in preparing any such registration statement, preliminary
prospectus, final prospectus, summary prospectus or amendment or supplement
thereto, or in making any such filing or representation. Each Prospective Seller
hereunder shall promptly provide such indemnification upon request. In no event
shall a Prospective Seller's obligation to indemnify any Person hereunder exceed
the net proceeds from the sale of the Prospective Seller's Registrable Stock
pursuant to the registration statement. The indemnity provided for herein shall
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party and shall survive any transfer of the
Registrable Stock held by the indemnifying party.
(c) If the indemnification provided for in Section 2.5(a) or Section
2.5(b) above is unavailable to an indemnified party in respect of any losses,
claims, damages or liabilities referred to therein, then the indemnifying party,
in lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities, in such proportion as is appropriate to reflect
the relative fault of the indemnifying party on the one hand and of the
indemnified parties on the other in connection with the statements or omissions
or violations which resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified parties,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Stockholders agree that it would not be just and
equitable if contribution pursuant to this Section 2.5(c) were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities or actions in respect thereof
referred to in
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the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 2.5(c), no
Prospective Seller shall be required to contribute any amount in excess of the
net proceeds from the sale of the Prospective Seller's Registrable Stock in the
Offering. No person guilty of fraudulent misrepresentations (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. The Company
may require, as a condition to including any Registrable Stock of a Prospective
Seller in any registration statement filed pursuant to Section 2.1, that the
Company shall have received an undertaking satisfactory to it from such
Prospective Seller of such Registrable Stock, severally and not jointly, to
contribute to the amount paid or payable by an indemnified party hereunder as
and to the extent set forth in this Section 2.5(c), and each Prospective Seller
hereunder shall promptly provide such undertaking upon request.
(d) Promptly after receipt by an indemnified party under Section 2.5
(a) or Section 2.5(b) above of written notice of the commencement of any action,
such indemnified party promptly shall, if a claim in respect thereof is to be
made under such Section, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
relieve it from any liability which it may have had to any indemnified party
hereunder only to the extent that it has been prejudiced as a proximate result
of such failure. In case any such action shall be brought against any
indemnified party, and it shall notify promptly the indemnifying party of the
commencement thereof, the indemnifying party shall assume the defense thereof,
with counsel satisfactory to such indemnified party (such approval not to be
unreasonably withheld or delayed); provided, however, that, if the defendants in
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, the
indemnified party or parties shall have the right to select separate counsel to
assert such legal defenses (in which case the indemnifying party shall not have
the right to direct the defense of such action on behalf of the indemnified
party or parties), at the expense of the indemnifying party. Upon the assumption
by the indemnifying party of the defense of such action, and approval by the
indemnified party of counsel, the indemnifying party shall not be liable to such
indemnified party under this Section 2.5 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time, (ii) the indemnified party and its counsel do not actively
and vigorously pursue the defense of such action, or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party.
Section 2.6 Rule 144 Requirements.
The Company shall undertake to make and keep publicly available, and
available to the holders of Registrable Stock, such information as is necessary
to enable the holders of Registrable Stock to make sales of Registrable Stock
pursuant to Rule 144 of the Securities Act. The Company shall furnish to any
holder of Registrable Stock, upon request, a written statement
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executed by the Company as to the steps it has taken to comply with the current
public information requirements of Rule 144.
Section 2.7 Rights Which May Be Granted to Other Persons.
The Company shall not grant any Person registration rights which shall in
any way whatsoever impair the registration rights granted to the Investors in
this Agreement.
Section 2.8 Transfer of Registration Rights.
The registration rights of any Investor under this Agreement may be
transferred only to any Permitted Transferee or to any Person who acquires at
least fifty percent (50%) of such Investor's Registrable Stock (held as of the
date of the initial issuance of the Series D Preferred Stock).
Section 2.9 Changes in Series D Preferred Stock or Common Stock.
If, and as often as, there is any change in the Series D Preferred Stock
or Common Stock by way of a stock split, stock dividend, combination or
reclassification, or through a merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof so that the rights and privileges granted hereby shall
continue with respect to the Series D Preferred Stock or Common Stock as so
changed.
ARTICLE III
MISCELLANEOUS
Section 3.1 Specific Performance.
Inasmuch as the shares of the Company's Series D Preferred Stock cannot
be readily purchased or sold in the open market, irreparable damage would result
in the event that the provisions of this Agreement are not specifically
enforced. Therefore, the rights to, or obligations of, the parties hereto shall
be enforceable in a court of equity by a decree of specific performance and
appropriate injunctive relief may be applied for and granted in connection
therewith. Such remedies, and all other remedies provided for in this Agreement,
shall, however, be cumulative and not exclusive and shall be in addition to any
other remedies which any party may have under this Agreement or otherwise.
Section 3.2 Term.
Notwithstanding anything contained herein to the contrary, this Agreement
shall terminate, and all rights and obligations hereunder shall cease, upon the
written agreement of each of the then parties hereto.
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Section 3.3 Notices.
All notices, offers, acceptances, requests and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed by certified or registered mail to the Stockholders at their
addresses on the Company records, and to the Company at the Company's principal
place of business. Any party hereto may change his or its address for notice by
giving notice thereof in the manner herein above provided.
Section 3.4 Parties in Interest.
All covenants and agreements contained in this Agreement, by or on behalf
of any of the parties executing this Agreement shall bind such parties, and
shall bind and inure to the benefit of the respective successors and permitted
assigns of the parties hereto whether so expressed or not; provided, however,
that the foregoing shall not in and of itself permit the assignment of the
rights and obligations hereunder or thereunder.
Section 3.5 Governing Law.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Delaware, without giving effect to its conflicts
of laws provisions. The parties hereto agree and acknowledge that each party has
retained counsel in connection with the negotiation and preparation of this
Agreement and the other Transaction Documents, and that any rule of construction
to the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of the foregoing agreements or any
amendment, schedule or exhibits thereto.
Section 3.6 Entire Agreement.
This Agreement and the other Transaction Documents, including all related
schedules and exhibits, constitute the entire understanding and agreement of the
parties hereto, and supersede all prior agreements and understandings, oral and
written, among the parties hereto with respect to the subject matter hereof and
thereof.
Section 3.7 Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
Section 3.8 Amendments.
This Agreement may not be amended or modified, and no provisions hereof
may be waived, without the written consent of the Company and each of the
Investors.
Section 3.9 Severability.
Each provision of this Agreement shall be treated as a separate and
independent clause, and the unenforceability of any one clause shall in no way
impair the enforceability of any of the
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other clauses herein. If one or more of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to scope,
activity, subject or otherwise so as to be unenforceable at law, such provision
or provisions shall be construed by the appropriate judicial body by limiting or
reducing it or them, so as to be enforceable to the maximum extent compatible
with the applicable law as it shall then appear.
Section 3.10 Titles and Subtitles.
The titles and subtitles used in this Agreement are for convenience only
and are not to be considered in construing or interpreting any term or provision
of this Agreement.
Section 3.11 Pronouns.
All pronouns used herein shall be deemed to refer to the masculine,
feminine or neuter gender as the context requires.
[Signatures Appear On The Following Page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
S1 Corporation
By: /s/ ROBERT F. STOCKWELL
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Name: Robert F. Stockwell
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Title: Chief Financial Officer
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(Schedule 1 Appears on the Following Page)
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SCHEDULE 1: SERIES D HOLDERS
100,000 Shares STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
By: /s/ JIM RUTROUGH
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Name: Jim Rutrough
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Title: Executive Vice-President
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By: /s/ ANN BAUGHAN
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Name: Ann Baughan
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Title: Vice-President-EIS
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75,000 Shares ZG INVESTMENTS, LTD.
By: /s/ MICHAEL R. DEEVY
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Name: Michael R. Deevy
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Title: Director
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(continued on next page)
[Registration Rights Agreement]
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37,500 Shares Allianz Capital Partners GmbH
By: /s/
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Name:
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Title:
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By: /s/
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Name:
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Title:
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25,000 Shares Fleet Private Equity Co., Inc.
By: /s/ H. JAY SARLES
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Name: H. Jay Sarles
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Title: Director
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6,500 Shares J.P. Morgan Ventures Corporation
By: /s/ GRACE B. VOGEL
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Name: Grace B. Vogel
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Title: Controller
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