Delaware | 7389 | 93-4766827 | ||
(State or other jurisdiction
of incorporation or organization) |
(Primary standard industrial classification code number) |
(I.R.S. employer identification no.) |
Laird H. Simons III, Esq.
|
William V. Fogg, Esq. | |
William L. Hughes, Esq.
|
Daniel A. OShea, Esq. | |
James D. Evans, Esq.
|
Cravath, Swaine & Moore LLP | |
Fenwick & West LLP
|
Worldwide Plaza | |
801 California Street
|
825 Eighth Avenue | |
Mountain View, CA 94041
|
New York, NY 10019 | |
(650) 988-8500
|
(212) 474-1000 |
Large accelerated filer o
|
Accelerated filer o | Non-accelerated filer þ | Smaller reporting company o | |||
(Do not check if a smaller reporting company) |
ITEM 13. | Other Expenses of Issuance and Distribution. |
SEC registration fee
|
$ | 10,695 | ||
FINRA filing fee
|
15,500 | |||
NYSE listing fee
|
* | |||
Printing and engraving
|
* | |||
Legal fees and expenses
|
* | |||
Accounting fees and expenses
|
* | |||
Road show expenses
|
* | |||
Blue sky fees and expenses
|
* | |||
Transfer agent and registrar fees and expenses
|
* | |||
Miscellaneous
|
* | |||
Total
|
$ | * | ||
* | To be provided by amendment. |
ITEM 14. | Indemnification of Directors and Officers. |
| for any breach of the directors duty of loyalty to the Registrant or its stockholders; | |
| for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; | |
| under Section 174 of the Delaware General Corporation Law (regarding unlawful dividends and stock purchases); or | |
| for any transaction from which the director derived an improper personal benefit. |
| the Registrant is required to indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions; | |
| the Registrant may indemnify its other employees and agents as set forth in the Delaware General Corporation Law; | |
| the Registrant is required to advance expenses, as incurred, to its directors and officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions; and | |
| the rights conferred in the bylaws are not exclusive. |
II-1
Exhibit Document
|
Number
|
|||
Form of Underwriting Agreement
|
1 | .01 | ||
Form of Restated Certificate of Incorporation of the Registrant
|
3 | .02 | ||
Form of Restated Bylaws of the Registrant
|
3 | .04 | ||
Eighth Amended and Restated Registration Rights Agreement by and
among the Registrant and certain investors of the Registrant
|
4 | .02 | ||
Form of Indemnity Agreement
|
10 | .01 |
ITEM 15. | Recent Sales of Unregistered Securities. |
II-2
ITEM 16. | Exhibits and Financial Statement Schedules. |
Exhibit |
||||
Number
|
Exhibit Title
|
|||
1 | .01* | Form of Underwriting Agreement. | ||
3 | .01* | Ninth Amended and Restated Certificate of Incorporation of the Registrant. | ||
3 | .02* | Form of Restated Certificate of Incorporation of the Registrant, to be effective upon the consummation of this offering. | ||
3 | .03** | Bylaws of the Registrant. | ||
3 | .04* | Form of Restated bylaws of the Registrant, to be effective upon closing of this offering. | ||
4 | .01* | Form of Registrants Class A Common Stock certificate. | ||
4 | .02* | Eighth Amended and Restated Registration Rights Agreement by and among the Registrant and the preferred stockholders and certain warrant holders of the Registrant. | ||
5 | .01* | Opinion of Fenwick & West LLP regarding the legality of the securities being registered. | ||
10 | .01* | Form of Indemnity Agreement. | ||
10 | .02* | 2001 Stock Plan and form of option grant. | ||
10 | .03* | 2010 Equity Incentive Plan and form of option grant. | ||
10 | .04** | Lease Agreement between Registrant and Foothill Technology Center, dated July 8, 2005, as amended on August 21, 2008 and July 30, 2009. | ||
10 | .05 | Prepaid Card Program Agreement dated as of October 20, 2006 by and among the Registrant, Wal-Mart Stores, Inc., Wal-Mart Stores Texas, L.P., Wal-Mart Louisiana, LLC, Wal-Mart Stores East, Inc., and Wal-Mart Stores, L.P. and GE Money Bank, as amended. | ||
10 | .06 | Card Program Services Agreement, dated as of October 27, 2006, by and between the Registrant and GE Money Bank, as amended. | ||
10 | .07 | Program Agreement, dated as of November 1, 2009, by and between the Registrant and Columbus Bank and Trust Company. | ||
10 | .08 | Agreement for Services, dated as of September 1, 2009, by and between the Registrant and Total System Services, Inc. | ||
10 | .09 | Master Services Agreement, dated as of May 28, 2009, by and between the Registrant and Genpact International, Inc. | ||
10 | .10** | Fifth Amended and Restated Loan and Line of Credit Agreement between Columbus Bank and Trust Company and Registrant, dated March 24, 2009. | ||
10 | .11** | Offer letter to William D. Sowell from the Registrant, dated January 28, 2009. | ||
10 | .12** | Employment Agreement between the Registrant and Mark T. Troughton, dated July 20, 2004. | ||
10 | .13** | FY2009 Management Cash Incentive Compensation Plan. | ||
10 | .14** | Description of FY2010 Management Cash Incentive Compensation Plan. | ||
10 | .15 | Warrant to purchase shares of common stock of the Registrant. | ||
10 | .16** | Preferred Stock Warrant to purchase shares of Series C-1 preferred stock of the Registrant. | ||
23 | .01* | Consent of Fenwick & West LLP (included in Exhibit 5.01). | ||
23 | .02** | Consent of Ernst & Young LLP, independent registered public accounting firm. | ||
24 | .01** | Power of Attorney. |
* | To be filed by amendment. | |
** | Previously filed. | |
| Registrant has omitted portions of the referenced exhibit and filed such exhibit separately with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act. |
II-3
(b) | Financial Statement Schedules. |
ITEM 17. | Undertakings. |
II-4
By: |
/s/ Steven
W. Streit
|
Name
|
Title
|
Date
|
||||
Principal Executive Officer: | ||||||
/s/ Steven
W. Streit Steven W. Streit |
Chairman, President and Chief Executive Officer |
March 11, 2010 | ||||
Principal Financial Officer: | ||||||
/s/ John
L. Keatley John L. Keatley |
Chief Financial Officer | March 11, 2010 | ||||
Principal Accounting Officer: | ||||||
/s/ Simon
M. Heyrick Simon M. Heyrick |
Chief Accounting Officer | March 11, 2010 | ||||
Additional Directors: | ||||||
* Kenneth C. Aldrich |
Director | March 11, 2010 | ||||
* Timothy R. Greenleaf |
Director | March 11, 2010 | ||||
* Virginia L. Hanna |
Director | March 11, 2010 | ||||
* Michael J. Moritz |
Director | March 11, 2010 |
II-5
Name
|
Title
|
Date
|
||||
* William H. Ott, Jr. |
Director | March 11, 2010 | ||||
* W. Thomas Smith, Jr. |
Director | March 11, 2010 | ||||
By: |
/s/ John
C. Ricci John C. Ricci |
Attorney-in-Fact | March 11, 2010 |
II-6
Exhibit |
||||
Number
|
Exhibit Title
|
|||
1 | .01* | Form of Underwriting Agreement. | ||
3 | .01* | Ninth Amended and Restated Certificate of Incorporation of the Registrant. | ||
3 | .02* | Form of Restated Certificate of Incorporation of the Registrant, to be effective upon the consummation of this offering. | ||
3 | .03** | Bylaws of the Registrant. | ||
3 | .04* | Form of Restated bylaws of the Registrant, to be effective upon closing of this offering. | ||
4 | .01* | Form of Registrants Class A Common Stock certificate. | ||
4 | .02* | Eighth Amended and Restated Registration Rights Agreement by and among the Registrant and the preferred stockholders and certain warrant holders of the Registrant. | ||
5 | .01* | Opinion of Fenwick & West LLP regarding the legality of the securities being registered. | ||
10 | .01* | Form of Indemnity Agreement. | ||
10 | .02* | 2001 Stock Plan and form of option grant. | ||
10 | .03* | 2010 Equity Incentive Plan and form of option grant. | ||
10 | .04** | Lease Agreement between Registrant and Foothill Technology Center, dated July 8, 2005, as amended on August 21, 2008 and July 30, 2009. | ||
10 | .05 | Prepaid Card Program Agreement dated as of October 20, 2006 by and among the Registrant, Wal-Mart Stores, Inc., Wal-Mart Stores Texas, L.P., Wal-Mart Louisiana, LLC, Wal-Mart Stores East, Inc., and Wal-Mart Stores, L.P. and GE Money Bank, as amended. | ||
10 | .06 | Card Program Services Agreement, dated as of October 27, 2006, by and between the Registrant and GE Money Bank, as amended. | ||
10 | .07 | Program Agreement, dated as of November 1, 2009, by and between the Registrant and Columbus Bank and Trust Company. | ||
10 | .08 | Agreement for Services, dated as of September 1, 2009, by and between the Registrant and Total System Services, Inc. | ||
10 | .09 | Master Services Agreement, dated as of May 28, 2009, by and between the Registrant and Genpact International, Inc. | ||
10 | .10** | Fifth Amended and Restated Loan and Line of Credit Agreement between Columbus Bank and Trust Company and Registrant, dated March 24, 2009. | ||
10 | .11** | Offer letter to William D. Sowell from the Registrant, dated January 28, 2009. | ||
10 | .12** | Employment Agreement between the Registrant and Mark T. Troughton, dated July 20, 2004. | ||
10 | .13** | FY2009 Management Cash Incentive Compensation Plan. | ||
10 | .14** | Description of FY2010 Management Cash Incentive Compensation Plan. | ||
10 | .15 | Warrant to purchase shares of common stock of the Registrant. | ||
10 | .16** | Preferred Stock Warrant to purchase shares of Series C-1 preferred stock of the Registrant. | ||
23 | .01* | Consent of Fenwick & West LLP (included in Exhibit 5.01). | ||
23 | .02** | Consent of Ernst & Young LLP, independent registered public accounting firm. | ||
24 | .01** | Power of Attorney. |
* | To be filed by amendment. |
** | Previously filed. | |
| Registrant has omitted portions of the referenced exhibit and filed such exhibit separately with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act. |