EXHIBIT 4.1
WAIVER AND AMENDMENT
Pursuant to Sections 2.1 and 2.6 of the Amended and Restated Registration
Rights Agreement (the "Agreement"), made as of March 12, 1997, by and among
ProBusiness Services, Inc. (the "Company"), General Atlantic Partners 39, L.P.,
GAP Coinvestment Partners, L.P. and the Holders (as defined in the Registration
Rights Agreement, dated December 1, 1989, as amended between the Company and the
Original Holders), for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged:
1. WAIVER. The undersigned hereby waive, on behalf of all parties to the
Agreement, any registration rights that any of the parties to the Agreement may
have in connection with the registration of common stock of the Company pursuant
a registration statement on Form S-3 to be filed by the Company pursuant to
Sections 2, 3 and 4 of the Registration Rights Agreement made as of April 27,
1999 between the Company and certain stockholders of the Company.
2. AMENDMENT. Section 2.1 of the Agreement is hereby amended to read in its
entirety as follows:
"2.1 NO INCONSISTENT AGREEMENTS. The Company shall not, after the date
hereof, enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or
grant any additional registration rights to any Person or with respect to
any securities which are not Registrable Securities which are prior in
right to or inconsistent with the rights granted in this Agreement,
except as provided in Section 2.6 and except for those registration
rights granted to certain stockholders of the Company pursuant to the
ProBusiness Services, Inc. Registration Rights Agreement made as of April
27, 1999 between the Company and certain stockholders of the Company."
The Company hereby covenants that it will not amend the Registration Rights
Agreement made as of April 27, 1999 between the Company and certain stockholders
of the Company in a manner that affects or may affect the registration rights in
the Agreement without the consent required in Section 2.6 of the Agreement.
3. GOVERNING LAW. This Waiver and Amendment shall be governed in all
respects by and construed in all respects in accordance with the laws of the
State of California.
4. SEVERABILITY. If one or more provisions of this Waiver and Amendment are
held to be unenforceable under applicable law, such provision shall be excluded
from this Waiver and Amendment and the balance of the Waiver and Amendment shall
be interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
5. COUNTERPARTS. This Waiver and Amendment may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
General Atlantic Partners 39, L.P. Lafayette Investments, Inc.
By: General Atlantic Partners, LLC, By: /s/ THOMAS P. RODDY
its general partner -------------------------
Title: PRESIDENT
By: /s/ DAVID C. HODGSON
-----------------------------
Title: MANAGING PARTNER
----------------------- /s/ THOMAS H. SINTON
-----------------------------
Thomas H. Sinton
GAP Coinvestment Partners, L.P.
/s/ JANE N. SINTON
By: /s/ DAVID C. HODGSON -----------------------------
----------------------------- Jane N. Sinton
Title: MANAGING PARTNER
-----------------------
ProBusiness Services, Inc.
By: /s/ STEVEN E. KLEI
-----------------------------
Title: CHIEF FINANCIAL OFFICER AND SECRETARY
-------------------------------------