EXHIBIT 4.01
FIRST AMENDMENT TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This First Amendment to Amended and Restated Investors' Rights Agreement
(this "AMENDMENT") is entered into effective as of July 7, 1998, by and among
VeriSign, Inc., a Delaware corporation (the "COMPANY") and the undersigned
stockholders of the Company (the "HOLDERS").
RECITALS
A. The Company and the Holders are parties to that certain Amended and
Restated Investors' Rights Agreement dated as of November 15, 1996 (the "RIGHTS
AGREEMENT") providing for, among other things, the grant of certain registration
rights to the Holders with respect to certain shares of Common Stock of the
Company held by such Holders. Capitalized terms used but not otherwise defined
herein shall have the meaning given to such terms in the Rights Agreement.
B. The Company has entered into an Agreement and Plan of Reorganization
dated as of July 6, 1998 (the "PLAN"), with SecureIT, Inc., a Georgia
corporation ("SECUREIT"), and the shareholders of SecureIT, Inc. (the "SECUREIT
SHAREHOLDERS"), providing for the merger of VeriSign Merger Corp., a Georgia
corporation and wholly owned subsidiary of the Company, with and into SecureIT
(the "MERGER"). The Plan provides, among other things, that the shares of
Common Stock of SecureIT that are issued and outstanding immediately prior to
the Merger will be converted into shares of Common Stock of VeriSign (the
"MERGER SHARES") upon the effective time of the Merger.
C. In connection with the Merger, the SecureIT Shareholders have been
granted, among other things, certain piggyback registration rights with respect
to a certain number of Merger Shares issued to the SecureIT Shareholders in the
Merger pursuant to the terms of a certain Registration Rights Agreement, dated
July 6, 1998, entered into between the Company and the SecureIT Shareholders
(the "SECUREIT RIGHTS AGREEMENT").
D. The parties hereto agree to amend the Rights Agreement to permit the
inclusion of up to twenty-five percent (25%) of the total number of Merger
Shares issued to the SecureIT Shareholders in the Merger (the "PIGGYBACK
REGISTRABLE PORTION") in any demand registration effected by the Holders
pursuant to Section 1.2 of the Rights Agreement during the period commencing on
the date upon which VeriSign publicly releases a report including financial
statements of VeriSign that include at least thirty days of post-Merger combined
operating results of VeriSign and SecureIT and ending on January 30, 1999 (the
"REGISTRATION PERIOD").
E. Section 3.7 of the Rights Agreement provides that any provision of the
Rights Agreement may be amended with the written consent of the Company and the
Holders of a majority of the Registrable Securities (as defined in the Rights
Agreement) then outstanding, and the undersigned Holders hold a majority of such
Registrable Securities. Pursuant to Section 3.7 of the Rights Agreement, an
amendment effected in accordance with Section 3.7 is binding upon each holder of
any Registrable Securities then outstanding, each future holder of all such
Registrable Securities and the Company.
NOW, THEREFORE, in consideration of the above-recited facts and the mutual
promises, covenants and conditions contained herein, the parties hereby agree as
follows:
1. INCLUSION OF MERGER SHARES IN DEMAND REGISTRATION. Notwithstanding the
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provisions of Section 1.14 of the Rights Agreement, in the event that a
registration statement covering Registrable Securities is filed by the Company
under the Act upon the request of Holders in accordance with the terms of
Section 1.2(a) of the Rights Agreement during the Registration Period (a "DEMAND
REGISTRATION"), the Holders agree that the Company may include in such Demand
Registration, in addition to the Registrable Securities held by the Holders and
subject to Section 2 below, up to that number of Merger Shares equal to the
Piggyback Registrable Portion of the Merger Shares that are requested by the
SecureIT Shareholders to be included in such registration pursuant to the terms
of the SecureIT Rights Agreement.
2. UNDERWRITTEN DEMAND REGISTRATION. Notwithstanding the provisions of
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Section 1.2(b) of the Rights Agreement, in the event that such Demand
Registration is an underwritten offering, and the underwriter advises the
Initiating Holders (as defined in the Rights Agreement) in writing that
marketing factors require a limitation of the number of shares to be
underwritten in such Demand Registration, then the number of shares that may be
included in the underwriting shall be allocated among the Holders and the
SecureIT Shareholders in proportion (as nearly as practicable) to the amount of
Registrable Securities and/or Merger Shares owned by each Holder and each
SecureIT Shareholder, in accordance with Section 1.2(b) of the Prior Rights
Agreement, pari passu, treating each SecureIT Shareholder as if such SecureIT
Shareholder were a Holder under the Rights Agreement and as if such SecureIT
Shareholder's Merger Shares were Registrable Securities for the purpose of said
Section 1.2(b), provided, however, that, in no event, shall the number of shares
to be included by the SecureIT Shareholders exceed the Piggyback Registrable
Portion of the Merger Shares.
3. ENTIRE AGREEMENT. Except as specifically set forth above, all terms
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and conditions of the Rights Agreement shall remain in full force and effect.
This Amendment shall be deemed to form an integral part of the Rights Agreement
and shall be governed by California law. In the event of any inconsistency or
conflict between the provisions of the Rights Agreement and this Amendment, the
provisions of this Amendment will prevail and govern.
4. SUCCESSORS AND ASSIGNS. The provisions of this Amendment shall be
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binding upon and shall inure to the benefit of the parties and their permitted
successors and assigns.
5. FURTHER ASSURANCES. Each party hereby covenants and agrees that it
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shall execute and deliver such deeds and other documents as may be required to
implement any of the provisions of this Amendment.
6. COUNTERPARTS. This Amendment may be executed in counterparts, each of
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which will be deemed an original, but all of which together will constitute one
and the same instrument.
7. EFFECTIVENESS OF AMENDMENT. As provided in Section 3.7 of the Rights
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Agreement, this Amendment shall be binding upon each holder of any Registrable
Securities outstanding as of the date hereof, any future holder of all such
Registrable Securities and the Company. This Amendment shall be become
effective and binding upon (a) the execution of this Amendment by the Company
and the holders of a majority of the currently outstanding Registrable
Securities, and (b) the consummation of the Merger.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date first above written.
VERISIGN, INC. HOLDER:
RSA DATA SECURITY, INC.
By: /s/ Stratton Sclavos By:
_________________________ __________________________________
Its: Chief Executive Officer Its:
_________________________ _________________________________
SECURITY DYNAMICS TECHNOLOGIES, INC.
By: Charles R. Stuckey Jr.
__________________________________
Its: Chairman, President and CEO
_________________________________
KAIRDOS L.L.C.
By:__________________________________
Its:_________________________________
BESSEMER VENTURE PARTNERS DCI
By: Bessemer Venture Partners III L.P.
Managing General Partner
By: Deer III & Co., General Partner
By:__________________________________
Its:_________________________________
KLEINER PERKINS CAULFIELD & BYERS VII
By: /s/ Kevin Compton
__________________________________
Its: General Partner
_________________________________
KPCB INFORMATION SCIENCE ZAIBATSU FUND II
By: /s/ Kevin Compton
______________________________________
Its: General Partner
_____________________________________
KPCB VII FOUNDERS FUND
By: /s/ Kevin Compton
______________________________________
Its: General Partner
_____________________________________
FIRST TZMM INVESTMENT PARTNERSHIP
By:______________________________________
Its:_____________________________________
TZM INVESTMENT FUND
By:______________________________________
Its:_____________________________________
_________________________________________
NAME OF HOLDER
By:______________________________________
Its:_____________________________________
_________________________________________
NAME OF HOLDER
By:______________________________________
Its:_____________________________________