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EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
SECURITY FIRST TECHNOLOGIES CORPORATION,
ROYAL BANK OF CANADA
AND
RBC HOLDINGS (DELAWARE) INC.
DATED AS OF FEBRUARY 25, 1999
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement"), dated as of February
25, 1999, is entered into by and among Security First Technologies Corporation,
a Delaware corporation ("SFTC"), Royal Bank of Canada, a Canadian banking
company ("Royal Bank"), and RBC Holdings (Delaware) Inc., a Delaware corporation
("RBHC," and together with Royal Bank, "RBC").
WHEREAS, Royal Bank and SFTC have entered into other agreements on even
date herewith, the result of which may be that RBC may acquire additional shares
of SFTC common stock, no par value per share ("Common Stock"); and
WHEREAS, as an inducement to Royal Bank and SFTC to enter into such other
agreements, the parties have determined that it is in their respective best
interests for SFTC to provide RBC with the registration rights set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements, covenants and
promises contained herein, and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties agree as follows:
SECTION 1. SUPERSEDING CLAUSE.
This Agreement amends and supersedes the registration rights provisions
set forth in Section 2 of the Common Stock Purchase and Option Agreement, by and
between Security First Network Bank and RBHC, dated as of March 9, 1998.
SECTION 2. REGISTRATION RIGHTS.
2.1 PIGGYBACK REGISTRATION RIGHTS.
2.1(a) Except as provided at Section 2.1(b) below, if at any time
or times beginning six months after the date hereof through and including eight
years from the date hereof, SFTC proposes to make a public offering of its
Common Stock, which requires registration under applicable rules and regulations
of the Securities and Exchange Commission ("SEC") (or any successor regulator
thereto as to federal securities laws), other than an offering not suitable for
inclusion of shares of selling stockholders for offer to the public, such as
shares being offered in connection with an employment benefit plan or in
connection with a merger, SFTC shall give written notice of the proposed
registration to RBC at least 14 business days prior to the proposed filing date
of the registration form with the SEC, and at the written
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request of RBC delivered to SFTC within 10 days after the receipt of such
notice, SFTC shall include in such registration and offering, and in any
underwriting of such offering, all shares of Common Stock that (i) RBC is not
contractually or otherwise prohibited from selling, and (ii) that have been
designated for registration in RBC's request. SFTC may withdraw any proposed
registration statement or offering of securities under this Section 2 at any
time without any liability to RBC hereunder.
2.1(b) If a registration in which RBC has the right to participate
pursuant to this Section 2 is an underwritten public offering and the managing
underwriter advises SFTC in writing that in its opinion the number of securities
requested to be included in such registration exceeds the number that can be
sold in such offering consistent with the pricing expectations of SFTC, then
SFTC first shall include in such offering the Common Stock proposed to be sold
by SFTC if consistent with the aforementioned opinion of the managing
underwriter, and second shall include the Common Stock requested to be included
in such registration by RBC and other selling stockholders who hold registration
rights pursuant to pre-existing written agreements with SFTC, if any, pro rata
based upon the number of shares of Common Stock requested by each such selling
stockholder to be included in such registration, or in such other amounts upon
which SFTC, RBC and the other selling stockholders may agree. The five year
limitation on registration rights set forth in Section 2.1(a) shall not apply to
any shares of RBC's Common Stock excluded from registration by virtue of this
Section 2.1(b).
2.2 DEMAND REGISTRATION RIGHTS.
2.2(a) At any time after six months from the date hereof through
and including eight years from the date hereof, RBC may request registration for
sale under the Securities Act of 1933, as amended (the "Securities Act") of any
shares of Common Stock owned by RBC and of which RBC is not contractually or
otherwise prohibited from selling (a "Demand Registration"), provided, however,
that (i) SFTC shall only be obligated to effect three Demand Registrations for
RBC, (ii) SFTC shall not be obligated to effect a Demand Registration unless RBC
requests registration for sale of shares that represent at least 50% of the
aggregate amount of Common Stock then owned by RBC, and (iii) SFTC shall not be
required to conduct an underwritten offering. A Demand Registration shall
specify the approximate number of shares of Common Stock requested to be
registered and the anticipated per share price range for such offering.
2.2(b) A Demand Registration shall be deemed to occur when such
registration becomes effective under the Securities Act, except that if, after
it becomes effective, such Demand Registration is interfered with by any stop
order, injunction or other order or requirement of the SEC (or any successor
regulator thereto as to federal securities laws) or any other governmental
authority, such
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registration shall not be deemed to have been effected unless such stop order,
injunction or other order shall have been subsequently vacated or removed.
2.3 REGISTRATION PROCEDURES.
2.3(a) SFTC shall have no obligation to include shares of Common
Stock owned by RBC in a registration statement pursuant to Section 2.1 or
Section 2.2 hereof unless and until RBC has furnished SFTC with all information
and statements about or pertaining to Royal Bank and RBHC in such reasonable
detail and on such timely basis as is reasonably deemed by SFTC to be necessary
or appropriate for the preparation of the registration statement.
2.3(b) Whenever RBC has requested that its shares of Common Stock
be registered pursuant to Section 2.1 or Section 2.2 hereof, SFTC shall, subject
to its rights under Section 2.1(a) to withdraw the registration statement and
the other provisions of Section 2.1 and Section 2.2:
(1) prepare and file with the SEC a registration
statement with respect to such shares and use its reasonable efforts to cause
such registration statement to become effective as soon as practicable after the
filing thereof (provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, SFTC shall furnish counsel
for RBC with copies of all such documents proposed to be filed);
(2) prepare and file with the SEC as promptly as is
reasonably practicable such amendments and supplements to such registration
statement and prospectus contained therein as may be necessary to keep such
registration statement effective for a period of not less than three months or
until RBC has completed the distribution described in such registration
statement, whichever occurs first;
(3) furnish to RBC the number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
contained in such registration statement (including each preliminary
prospectus), and such other documents as RBC may reasonably request;
(4) use reasonable efforts to register or qualify such
shares under the state blue sky or securities or banking laws ("Blue Sky Laws")
of such jurisdictions as RBC reasonably requests (and to keep such registrations
and qualifications effective for a period of three months, or until RBC has
completed the distribution of such shares, whichever occurs first), and to do
any and all other acts and things that may be reasonably necessary or advisable
to enable RBC to consummate the disposition of such shares in such
jurisdictions; provided, however, that SFTC will not be required to do any of
the following: (i) qualify generally to do business in any jurisdiction where it
would not be required but for this
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Section 2.3(b), (ii) subject itself to taxation in any such jurisdiction, or
(iii) file any general consent to service of process in any such jurisdiction;
(5) promptly notify RBC at any time when a prospectus
relating thereto is required to be delivered under applicable federal securities
laws during the period that SFTC is required to keep the registration statement
effective, of the occurrence of any event as a result of which the prospectus
included in such registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the statements therein in the
light of the circumstances under which they were made, not misleading, and
prepare a supplement or amendment to the prospectus so that, as thereafter
delivered to the purchasers of such shares, the prospectus will not contain an
untrue statement of a material fact or omit to state any fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading;
(6) use reasonable efforts to cause all such shares to
be listed on a securities exchange or the Nasdaq Stock Market; and
(7) provide a transfer agent and registrar (if SFTC does
not already have such an agent) for all such shares not later than the effective
date of such registration statement.
2.4 REGISTRATION EXPENSES.
2.4(a) If, pursuant to Section 2.1 or Section 2.2 hereof, shares
of Common Stock owned by RBC are included in a registration statement, then RBC
shall pay all transfer taxes, if any, relating to the sale of its shares of
Common Stock, the fees and expenses of its own counsel, and its pro rata portion
of any underwriting discounts or commissions or the equivalent thereof.
2.4(b) Except for the fees and expenses specified in Section
2.4(a) hereof and except as provided below in this Section 2.4(b), SFTC shall
pay all expenses incident to the registration and to SFTC's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, fees and expenses of compliance, with Blue Sky Laws,
underwriting discounts, fees, and expenses (other than RBC's pro rata portion of
any underwriting discounts or commissions or the equivalent thereof), printing
expenses, messenger and delivery expenses, and fees and expenses of counsel for
SFTC and all independent certified public accountants and other persons retained
by SFTC. With respect to any registration pursuant to Section 2.2 hereof, SFTC
shall pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties)
and the expenses and fees for listing the securities to be registered on an
exchange or on the Nasdaq Stock Market.
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2.5 INDEMNITY AND CONTRIBUTION.
2.5(a) In the event that any shares of Common Stock owned by RBC
are sold by means of a registration statement pursuant to Section 2.1 or Section
2.2 hereof, RBC (for the purposes of this paragraph 2.5(a), the "Indemnifying
Person") agrees to indemnify and hold harmless SFTC, each of SFTC's officers and
directors, and each person, if any, who controls or may control SFTC within the
meaning of the Securities Act (for the purposes of this paragraph 2.5(a), SFTC,
its officers and directors, and any such other persons being hereinafter
referred to individually as an "Indemnified Person" and collectively as
"Indemnified Persons") from and against all demands, claims, actions or causes
of action, assessments, losses, damages, liabilities, costs, and expenses,
including, without limitation, interest, penalties, and reasonable attorneys'
fees and disbursements, asserted against, resulting to, imposed upon, or
incurred by such Indemnified Person, directly or indirectly (collectively,
hereinafter referred to in the singular as a "Claim" and in the plural as
"Claims"), based upon, arising out of, or resulting from any untrue statement of
a material fact contained in the registration statement or any omission to state
therein a material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not misleading, to
the extent that such Claim is based upon, arises out of or results from any
untrue statement or omission based upon information furnished to SFTC by RBC in
a written document provided by RBC for use in connection with the registration
statement.
2.5(b) SFTC (for the purposes of this paragraph 2.5(b), the
"Indemnifying Person") agrees to indemnify and hold harmless RBC, its officers
and directors, each person, if any, who controls or may control RBC within the
meaning of the Securities Act and any underwriters participating in the
distribution of Common Stock pursuant to a registration statement (for the
purposes of this paragraph 2.5(b), RBC, its officers and directors, and any such
other persons also being hereinafter referred to individually as an "Indemnified
Person" and collectively as "Indemnified Persons") from and against all Claims
based upon, arising out of, or resulting from any untrue statement of a material
fact contained in the registration statement or any omission to state therein a
material fact necessary in order to make the statement made therein, in the
light of the circumstances under which they were made, not misleading, provided
that SFTC will not be liable in any such case to the extent that any such Claim
arises out of or results from any untrue statement or omission based upon
information furnished to SFTC by RBC in a written document provided by RBC for
use in connection with the registration statement.
2.5(c) The indemnification set forth herein shall be in addition
to any liability SFTC or RBC may otherwise have in connection with any
registration of Common Stock. Within a reasonable time after receiving
definitive notice of any Claim in respect of which an Indemnified Person may
seek indemnification under
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this Section 2.5, such Indemnified Person shall submit written notice thereof to
Indemnifying Person. The failure of the Indemnified Person so to notify the
Indemnifying Person of any such Claim shall not relieve the Indemnifying Person
from any liability it may have hereunder except to the extent that (a) such
liability was caused or increased by such omission, or (b) the ability of the
Indemnifying Person to reduce such liability was materially adversely affected
by such omission. In addition, the omission of the Indemnified Person so to
notify the Indemnifying Person of any such Claim shall not relieve the
Indemnifying Person from any liability it may have otherwise than hereunder. The
Indemnifying Person shall have the right to undertake, by counsel or
representatives of its own choosing, the defense, compromise, or settlement
(without admitting liability of the Indemnifying Person) of any such Claim
asserted, such defense, compromise, or settlement to be undertaken at the
expense and risk of the Indemnifying Person, and the Indemnified Person shall
have the right to engage separate counsel, at its own expense, which counsel for
the Indemnifying Person shall keep informed and consult with in a reasonable
manner. In the event the Indemnifying Person shall fail to undertake such
defense by its own representatives, the Indemnifying Person shall give prompt
written notice of such election to the Indemnified Person, and the Indemnified
Person shall undertake the defense, compromise, or settlement (without admitting
liability of the Indemnified Person) thereof on behalf of and for the account
and risk of the Indemnifying Person by counsel or other representatives
designated by the Indemnified Person. In the event that any Claim shall arise
out of a transaction or cover any period or periods wherein SFTC and RBC shall
each be liable hereunder for part of the liability or obligation arising
therefrom, then the parties shall, each choosing its own counsel and bearing its
own expenses, defend such Claim, and no settlement or compromise of such Claim
may be made without the joint consent or approval of SFTC and RBC.
Notwithstanding the foregoing, no Indemnifying Person shall be obligated
hereunder with respect to amounts paid in settlement of any Claim if such
settlement is effected without the consent of such Indemnifying Person (which
consent shall not be unreasonably withheld).
2.5(d) If the indemnification provided for in this Section 2.5 is
held by a court of competent jurisdiction to be unavailable to an Indemnified
Party (as defined in either Section 2.5(a) or 2.5(b)) with respect to any Claim,
then RBC or SFTC, as applicable and as the case may be (each an "Indemnifying
Party"), in lieu of indemnifying an Indemnified Party hereunder, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Claim in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Party on the one hand and of the Indemnified Party on the
other in connection with the statements or omissions which resulted in such
claim.
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SECTION 3. TERMINATION.
3.1 MUTUAL CONSENT.
The parties may terminate this Agreement at any time by mutual
written agreement.
3.3 EFFECT OF TERMINATION.
Termination of this Agreement pursuant to this Section 3 shall not
relieve any party of any liability for a default or other breach, default or
nonperformance under this Agreement. Notwithstanding the foregoing, no party
hereto shall be liable for consequential or punitive damages in connection with
such termination.
SECTION 4. MISCELLANEOUS.
4.1 ADDITIONAL ACTIONS AND DOCUMENTS.
Each of the parties hereto agrees that it will, at any time, take
or cause to be taken such further actions, and execute, deliver and file or
cause to be executed, delivered and filed such further documents and instruments
as may be necessary or reasonably requested in connection with the consummation
of transactions contemplated by this Agreement or in order to fully effectuate
the purposes, terms and conditions of this Agreement.
4.2 NOTICES.
All notices, demands, requests, or other communications which may
be or are required to be given or made by any party to any other party pursuant
to this Agreement shall be in writing and shall be hand delivered, mailed by
first-class registered or certified mail, return receipt requested, postage
prepaid, or delivered by overnight air courier, addressed as follows:
(i) if to SFTC:
Security First Technologies Corporation
3390 Peachtree Road, NE, Suite 1700
Atlanta, Georgia 30326
Attn.: President
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with a copy (which shall not constitute notice) to:
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004
Attn.: Stuart G. Stein, Esq.
(ii) if to RBHC:
RBC Holdings (Delaware) Inc.
1 Place Ville Marie
Montreal, Canada H3C 5A7
Attn.: Vice President - Business Development
(iii) if to Royal Bank:
Royal Bank of Canada
16th Floor, South Tower
Royal Bank Plaza
200 Bay Street
Toronto, Ontario M5J 2J2
Attn.: Vice President - Business Development
with a copy (which shall not constitute notice) to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Attn.: Lawrence J. Hohlt
or such other address as the addressee may indicate by written notice to the
other parties. Each notice, demand, request, or communication which shall be
given or made in the manner described above shall be deemed sufficiently given
or made for all purposes at such time as it is delivered to the addressee (with
the return receipt, the delivery receipt, or the affidavit of messenger being
deemed conclusive but not exclusive evidence of such delivery) or at such time
as delivery is refused by the addressee upon presentation.
4.3. WAIVER.
No waiver by any party of any failure or refusal of any other
party to comply with its obligations under this Agreement shall be deemed a
waiver of any other or subsequent failure or refusal to so comply by such other
party. No waiver shall be valid unless in writing signed by the party to be
charged and only to the extent therein set forth.
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4.4 BINDING EFFECT.
This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
4.5 ENTIRE AGREEMENT; AMENDMENT.
This Agreement, including the other instruments and documents
referred to herein or delivered pursuant hereto, contains the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior oral or written agreements, commitments or understandings with respect to
such matters. No amendment, modification or discharge of this Agreement shall be
valid or binding unless set forth in writing and duly executed by the party
against whom enforcement of the amendment, modification or discharge is sought.
4.6 GOVERNING LAW.
This Agreement, the rights and obligations of the parties hereto,
and any claims or disputes relating thereto, shall be governed by and construed
under and in accordance with the laws of the State of Delaware, excluding the
choice of law rules thereof.
4.7 SIGNATURE IN COUNTERPARTS.
This Agreement may be executed in separate counterparts, none of
which need contain the signatures of all parties, each of which shall be deemed
to be an original, and all of which taken together constitute one and the same
instrument. It shall not be necessary in making proof of this Agreement to
produce or account for more than the number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
4.8 NO THIRD PARTY BENEFICIARIES.
Except as expressly provided herein, this Agreement is made and
entered into for the sole protection and benefit of the parties hereto, and no
other person or entity shall have any right of action hereon, right to claim any
right or benefit from the terms contained herein or be deemed a third party
beneficiary hereunder.
4.9 ASSIGNABILITY.
All terms and provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto, and their respective
transferees, successors and assigns; provided, however, that neither this
Agreement nor any
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rights, privileges, duties and obligations of the parties hereto may be assigned
or delegated by any party hereto without the prior written consent of all the
parties to this Agreement and any such purported or attempted assignment shall
be null and void ab initio and of no force or effect provided, further that RBC
may assign this Agreement, including rights, privileges, duties and obligations
hereunder to any parent or subsidiary corporation affiliate of RBC so long as
such assignment does not in any way materially delay or otherwise materially
adversely impact the ability of the parties hereto to effect the transactions
contemplated hereby.
4.10 PARTIES NOT PARTNERS.
Nothing contained in this Agreement shall constitute any party as
a partner with, agent for or principal of any one or more of the other parties
or their successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the date first above written.
SECURITY FIRST TECHNOLOGIES CORPORATION
By: /s/ James S. Mahan III
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Name: James S. Mahan III
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Title: CEO
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RBC HOLDINGS (DELAWARE) INC.
By: Ray S. Chang
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Name: Ray S. Chang
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Title: Chairman of the Board & President
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By: Charles F. Seitz
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Name: Charles F. Seitz
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Title: Treasurer and Secretary
ROYAL BANK OF CANADA
By: /s/ Jim Rager
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Name: Jim Rager
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Title: Vice Chair Royal Bank
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By: /s/ Robert Horton
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Name: Robert Horton
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Title: Vice President Business Development
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