**Exhibit 4.1**

 

 

**REGISTRATION RIGHTS****AGREEMENT**

 

**By and Among**

 

**NetSpend Holdings, Inc.,**

 

**NetSpend Corporation,**

 

**and**

 

**The Stockholders, as defined herein,**

 

**Dated as of October 22, 2010**

 

 

 

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**TABLE OF CONTENTS**

 
| **REGISTRATION  RIGHTS AGREEMENT**       | **1**                              |
|------------------------------------------|------------------------------------|
| ** **                               | ** **                         |
| **ARTICLE I  DEFINITIONS**          | **1**                              |
|                                     |                               |   |
| SECTION 1.1.                        | CONSTRUCTION OF TERMS              | 1 |
| SECTION 1.2.                        | NUMBER OF SHARES OF STOCK          | 1 |
| SECTION 1.3.                        | DEFINED TERMS                      | 2 |
|                                     |                               |   |
| **ARTICLE II  REGISTRATION RIGHTS** | **4**                              |
|                                     |                               |   |
| SECTION 2.1.                        | DEMAND REGISTRATION                | 4 |
| SECTION 2.2.                        | PIGGYBACK REGISTRATION             | 7 |
| SECTION 2.3.                        | FURTHER OBLIGATIONS OF THE COMPANY | 7 |
| SECTION 2.4.                        | INDEMNIFICATION; CONTRIBUTION      | 10 |
| SECTION 2.5.                        | RULE 144 AND RULE 144A             | 11 |
| SECTION 2.6.                        | MOST FAVORED NATIONS               | 11 |
| SECTION 2.7.                        | MERGERS, ETC.                 | 12 |
| SECTION 2.8.                        | NO CONFLICT OF RIGHTS              | 12 |
|                                     |                               |   |
| **ARTICLE III  GENERAL**            | **12**                             |
|                                     |                               |   |
| SECTION 3.1.                        | AMENDMENTS, WAIVERS AND CONSENTS   | 12 |
| SECTION 3.2.                        | GOVERNING LAW                      | 13 |
| SECTION 3.3.                        | SECTION HEADINGS              | 13 |
| SECTION 3.4.                        | COUNTERPARTS                       | 13 |
| SECTION 3.5.                        | NOTICES AND DEMANDS                | 13 |
| SECTION 3.6.                        | SUBMISSION TO JURISDICTION; VENUE  | 13 |
| SECTION 3.7.                        | REMEDIES; SEVERABILITY             | 14 |
| SECTION 3.8.                        | WAIVER OF JURY TRIAL               | 14 |
| SECTION 3.9.                        | INTEGRATION                        | 14 |
| SECTION 3.10.                       | EFFECTIVENESS; BINDING EFFECT      | 14 |
| SECTION 3.11.                       | FURTHER ASSURANCES                 | 14 |
| SECTION 3.12.                       | TERM                               | 14 |
| SECTION 3.13.                       | JOINDER AGREEMENT                  | 15 |
|                                     |                               |   |
| **SCHEDULE I - STOCKHOLDERS**            |                               |

 

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**REGISTRATIONRIGHTS AGREEMENT**

 

**THIS REGISTRATION RIGHTS AGREEMENT** (the “Agreement”) ismade as of October 22, 2010 by and among (i) NetSpend Holdings, Inc.,a Delaware corporation (together with any successor thereto, the “Company”);(ii) NetSpend Corporation, a Delaware corporation and a wholly-ownedsubsidiary of the Company (“NetSpend”); and (iii) the stockholdersidentified on Schedule I hereto (together with any stockholders who joinas parties pursuant to Section 3.13 of this Agreement, the “Stockholders”and each a “Stockholder”).

 

**RECITALS**

 

**WHEREAS**, the parties hereto are parties to that certainAmended and Restated Stockholders’ Agreement, dated as of July 15, 2008,as amended (the “Stockholders’ Agreement”);

 

**WHEREAS**, pursuant to Section 6.14 of theStockholders’ Agreement, certain provisions thereof are terminated effectiveupon the closing of the Company’s Initial Public Offering (as defined in theStockholders’ Agreement);

 

**WHEREAS**, the Company has filed a registration statement on Form S-1for the initial public offering of its Common Stock (the “IPO”), whichwill constitute an Initial Public Offering for purposes of the Stockholders’Agreement; and

 

**WHEREAS**, the Company and the requisite parties desire toamend and restate the Stockholders’ Agreement in its entirety effective uponthe closing of the IPO in order to (i) eliminate the provisions thatterminate upon the consummation of the IPO in accordance with Section 6.14of the Stockholders Agreement, (ii) rename the Stockholders’ Agreement a “RegistrationRights Agreement” and (iii) make certain other amendments to theStockholders Agreement, which agreement is evidenced by their execution hereof.

 

**AGREEMENT**

 

**NOW THEREFORE**, in consideration of the foregoing and themutual covenants and agreements hereinafter set forth, the parties hereto agreeas follows:

 

**ARTICLE I**

 

**DEFINITIONS**

 

**Section 1.1.****                               ****Construction of Terms****. **As used herein,the masculine, feminine or neuter gender, and the singular or plural number,shall be deemed to be or to include the other genders or number, as the casemay be, whenever the context so indicates or requires.  The word “including” as used herein shall bedeemed to mean “including without limitation.”

 

**Section 1.2.****                               ****Number of Shares of Stock****. **Whenever anyprovision of the Agreement calls for any calculation based on a number ofshares of Common Stock held by a Stockholder, the number of shares deemed to beheld by a Stockholder shall be (i) the total number of shares of CommonStock then owned by such Stockholder, plus (ii) the total number of sharesof Common Stock issuable upon conversion of any convertible securities of theCompany or 

 

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exerciseof any options, warrants or subscription rights granted or issued by theCompany then owned by such Stockholder (all on an as exercised and/or asconverted basis).

 

**Section 1.3.****                               ****Defined Terms****. **The followingcapitalized terms, as used in this Agreement, shall have the meanings set forthbelow:

 

“**Agreement**” shall have themeaning set forth in the Preamble.

 

“**automatic shelf registration statement**”shall have the meaning set forth in Section 2.3(b).

 

“**Board of Directors**” means the Boardof Directors of the Company.

 

“**Calculated on a fully diluted basis**”means, when used with reference to Common Stock, calculated on a pro formabasis assuming the conversion and exchange of all securities convertible intoor exchangeable for shares of Common Stock, and the exercise of all options,warrants and other rights to purchase shares of Common Stock or suchconvertible or exchangeable securities.

 

“**Commission**” means the Securitiesand Exchange Commission.

 

“**Common Stock**” means theCommon Stock, par value $0.001 per share, of the Company, and any other sharesof stock issued or issuable with respect thereto (whether by way of a stockdividend or stock split or in exchange for or in replacement of or uponconversion of such shares or otherwise in connection with a combination of shares,recapitalization, merger, consolidation or other corporate reorganization).

 

“**Company**”****shall have the meaning setforth in the Preamble.

 

“**Controlling Person**” shall have themeaning set forth in Section 2.4(a)(i).

 

“**Damages**” shall have the meaning setforth in Section 2.4(a)(i).

 

“**Exchange Act**” means the SecuritiesExchange Act of 1934, as amended, and the rules and regulationspromulgated thereunder.

 

“**Form S-3 Registration**” shallhave the meaning set forth in Section 2.1(b).

 

“**Holders**” means Stockholders holdingRegistrable Securities.

 

“**Initial Public Offering**” means thefirst firm commitment underwritten public offering for shares of Common Stockpursuant to an effective registration statement under the Securities Act withaggregate gross proceeds of at least $25,000,000.

 

“**Investor**”****and “**Investors**”****shall have the meaning set forth inthe Preamble.

 

“**JLL**” means Skylight Holdings untilsuch time as JLL Partners Fund V, L.P. and JLL Partners Fund IV, L.P. haveexecuted a Joinder Agreement, and thereafter Skylight Holdings, JLL PartnersFund V, L.P. and JLL Partners Fund IV, L.P.

 

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“**JLL Investors**” means JLL and theequityholders of Skylight Holdings as of the date hereof.

 

“**NetSpend**”****shall have the meaning setforth in the Preamble.

 

“**Oak Investors**” means Oak InvestmentPartners X Fund, Limited Partnership and Oak X Affiliates Fund, L.P.

 

“**Person**” means an individual orgroup of individuals, a corporation, an association, a partnership, a limitedor general limited liability company, an estate, a trust, and any other entityor organization, governmental or otherwise.

 

“**Registrable Securities**” means (i) anyshares of Common Stock held by a Stockholder (as determined in accordance with Section 1.2hereof) and (ii) any securities issued and issuable with respect to anysuch shares described in clause (i) above by way of a stockdividend or stock split or in connection with a combination of shares,recapitalization, merger, consolidation or other reorganization; provided,however, that notwithstanding anything to the contrary contained herein,“Registrable Securities” shall not include at any time securities (a) soldin a registered sale pursuant to an effective registration statement under theSecurities Act, (b) sold to the public pursuant to Rule 144 under theSecurities Act, (c) which could be sold pursuant to Rule 144 (or anysuccessor rule) under the Securities Act without limitation or restriction, (d) whichcould be sold completely by any owner thereof within a three (3) monthperiod under provisions of Rule 144 under the Securities Act or (e) soldin a private transaction in which the Transferee’s rights under Article IIof this Agreement are not assigned.

 

“**S-3 Stockholders**” shall have themeaning set forth in Section 2.1(b).

 

“**Securities Act**” means theSecurities Act of 1933, as amended, and the rules and regulationspromulgated thereunder.

 

“**Securities**” means Common Stock andany other shares of capital stock of the Company, and any securities convertibleinto or exchangeable for such capital stock, and any options (including optionsissued to Stockholders), warrants or other rights to acquire such capital stockor securities of the Company, now or hereafter held by any party hereto,including all other securities of the Company (or a successor to the Company)received on account of ownership of Common Stock, including all securitiesissued in connection with any merger, consolidation, stock dividend, stockdistribution, stock split, reverse stock split, stock combination,recapitalization, reclassification, subdivision, conversion or similartransaction in respect thereof.

 

“**Selling Holder**” shall have themeaning set forth in Section 2.4(a)(i).

 

“**SignificantStockholder**” means each Stockholder (i) that holdsin excess of 450,000 shares of Common Stock (such number to be adjusted toreflect any reclassification, stock split, reverse stock split or similartransaction which changes the number of outstanding shares of Common Stockafter the date hereof) and (ii) is an “accredited investor” as defined in Rule 501(a) ofRegulation D under the Securities Act; provided that, for purposes of thedefinition of Significant Stockholder, the JLL Investors shall be deemed to bea single stockholder.

 

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“**SkylightHoldings**” means Skylight Holdings I, LLC.

 

“**Stockholder**” and “**Stockholders**”shall have the meaning set forth in the Preamble.

 

“**Transfer**” means any direct orindirect transfer, donation, sale, assignment, pledge, hypothecation, grant ofa security interest in or other disposal of all or any portion of a Security orof any rights thereunder

 

“**Transferee**” means the recipient ofa Transfer.

 

“**WKSI**” shall have the meaning setforth in Section 2.3(b).

 

**ARTICLE II**

 

**REGISTRATION RIGHTS**

 

**Section 2.1.****                               ****Demand Registration****.**

 

(a)          Oak Investor and JLL Investor Demand Registration Rights.

 

(i)                                     At any time after the date that is one hundred eighty (180) days afterthe Initial Public Offering pursuant to an effective registration statementunder the Securities Act, the Oak Investors may request that the Companyregister under the Securities Act at least 15% of the Registrable Securitiesheld by the Oak Investors. Notwithstanding the foregoing, (i) if the Board of Directorsdetermines in good faith that any such registration would be materiallydetrimental to the Company, the Company may defer such registration for no morethan one hundred twenty (120) days in any twelve (12) month period and (ii) theCompany shall not be obligated to effect such a registration during any periodbeginning sixty (60) days prior to the estimated filing date and ending onehundred and eighty (180) days after the effective date of any registrationstatement under the Securities Act registering the offer and sale of shares ofCommon Stock by the Company.

 

(ii)                                  At any time after the date that is one hundred eighty (180) days afterthe Initial Public Offering pursuant to an effective registration statementunder the Securities Act, JLL may request that the Company register under theSecurities Act at least 15% of the Registrable Securities held by the JLLInvestors.  Notwithstanding theforegoing, (i) if the Board of Directors determines in good faith that anysuch registration would be materially detrimental to the Company, the Companymay defer such registration for no more than one hundred twenty (120) days inany twelve (12) month period and (ii) the Company shall not be obligatedto effect such a registration during any period beginning sixty (60) days priorto the estimated filing date and ending one hundred and eighty (180) days afterthe effective date of any registration statement under the Securities Actregistering the offer and sale of shares of Common Stock by the Company.

 

(iii)                               If a requested registration pursuant to this Section 2.1(a) involvesan underwritten public offering and if the underwriter(s) determines thatmarketing factors require a limitation on the number of Registrable Securitiesto be offered, the Company shall not be required to register RegistrableSecurities of the Holders in excess of the amount, if any, of 

 

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shares of the capitalstock which the principal underwriter of such underwritten offering shallreasonably and in good faith agree to include in such offering in addition toany amount to be registered for the account of the Company.  If any limitation of the number of shares ofRegistrable Securities to be registered by the Holders is required pursuant tothis Section 2.1(a)(iii), the number of shares to be excluded shallbe determined in the following sequence (i.e., the shares listed first will beexcluded first):  (1) first, sharesof Common Stock held by any Persons not having contractual, piggybackregistration rights, (2) second, shares of Common Stock held by anyPersons (other than Holders) having contractual, piggyback registration rightsother than those set forth in Section 2.2, (3) third, theRegistrable Securities sought to be included by Holders thereof under Section 2.2,but not including either the Oak Investors or the JLL Investors in the case ofa registration by the Company made pursuant to a registration demand of eitherthe Oak Investors or JLL under this Section 2.1, as determined on apro rata basis (based upon the respective number of Registrable Securitiesrequested by each Holder to be included in such registration), (4) fourth,shares of Common Stock held by the Oak Investors and the JLL Investors in thecase of a registration by the Company made pursuant to a registration demandregistration of either the Oak Investors or JLL under this Section 2.1(based upon the respective number of Registrable Securities requested by eachsuch Holder to be included in such registration), and (5) fifth, shares ofCommon Stock to be sold by the Company.

 

(b)         Form S-3 Registration.

 

(i)                                     After the Company’s Initial Public Offering, the Company shall use itsbest efforts to qualify and remain qualified to register securities on Form S-3(or any successor form) under the Securities Act.  So long as the Company is qualified toregister securities on Form S-3 (or any successor form), any SignificantStockholder (collectively, the “S-3 Stockholders”) shall have the rightto request on any number of occasions registration on Form S-3 (or anysuccessor form) for the Registrable Securities having anticipated grossproceeds of at least at $500,000 held by such S-3 Stockholders, includingregistrations for the sale of such Registrable Securities on a delayed orcontinuous basis pursuant to Rule 415 under the Securities Act; provided,however, that the Company will only be required to file two (2) suchForm S-3 registrations in any twelve (12) month period (a “Form S-3Registration”).  Notwithstanding theforegoing, (A) if the Board of Directors determines in good faith that anysuch registration would be materially detrimental to the Company, the Companymay defer such registration for no more than ninety (90) days in any twelve(12) month period, and (B) the Company shall not be obligated to effectsuch a registration during any period beginning sixty (60) days prior to theestimated filing date and ending one hundred and eighty (180) days after theeffective date of any registration statement under the Securities Actregistering the offer and sale of shares of Common Stock by the Company (otherthan a registration statement on Form S-4 or Form S-8, to which thisclause (B) shall not apply).

 

(ii)                                  Following a request pursuant to Section 2.1(b)(i) above,the Company will notify all of the Holders who would be entitled to notice of aproposed registration under Section 2.2 below and any other holderof piggyback registration rights of its receipt of such notification from anS-3 Stockholder(s).  Upon the writtenrequest of any such Holder or other holder of the Company’s Securitiesdelivered to the Company within twenty (20) days after receipt from the Companyof such notification, the Company will either (i) elect to make a primaryoffering, in which case the rights of such Holders shall be as set forth in Section 2.2

 

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below (in which case theregistration shall not count as of the S-3 Stockholders’ permitted Form S-3Registration hereunder), or (ii) use its best efforts to cause such of theRegistrable Securities as may be requested by any Holders and any other holdersof piggyback registration rights to be registered under the Securities Act inaccordance with the terms of this Section 2.1(b).  If the request for registration contemplatesan underwritten public offering, the Company shall state such in the writtennotice and in such event the right of any Person to participate in suchregistration shall be conditioned upon their participation in such underwrittenpublic offering and the inclusion of their Securities in the underwrittenpublic offering to the extent provided herein.

 

(iii)                               If a requested registration pursuant to this Section 2.1(b) involvesan underwritten public offering and the managing underwriter of such offeringdetermines in good faith that the number of securities sought to be offeredshould be limited due to market conditions, then the number of securities to beincluded in such underwritten public offering shall be reduced to a numberdeemed satisfactory by such managing underwriter, provided that the shares tobe excluded shall be determined in the following sequence (i.e., the shareslisted first will be excluded first):  (1) first,shares of Common Stock held by any other Persons (other than the Holders ofRegistrable Securities) having a contractual, piggyback right to include suchsecurities in the registration statement, (2) second, shares sought to beregistered by the Company and (3) third, Registrable Securities of Holders(based upon the respective number of Registrable Securities requested by eachHolder to be included in such registration). If there is a reduction of the number of Registrable Securities pursuantto clause (3), such reduction shall be made on a pro rata basis (based upon theaggregate number of shares of Registrable Securities held by each such Holder(calculated in accordance with Section 1.2 above)), and, if thenumber of Holders’ Registrable Shares included in such registration is reducedby 25% or more of the number requested for registration, the registration shallnot count as the S-3 Stockholders’ permitted Form S-3 Registrationhereunder.

 

(iv)                              The Company may postpone the filing of any registration statementrequired under this Section 2.1(b) for a reasonable period oftime, not to exceed ninety (90) days in the aggregate during any twelve (12)month period, if the Company has been advised by legal counsel that such filingwould require a special audit or the disclosure of a material impendingtransaction or other matter and Board of Directors determines reasonably and ingood faith that such disclosure would have a material adverse effect on theCompany.  The Company shall not berequired to cause a registration statement requested pursuant to this Section 2.1(b) tobecome effective prior to one hundred eighty (180) days following the effectivedate of a registration statement initiated by the Company if the request forregistration has been received by the Company subsequent to the giving ofwritten notice by the Company, made in good faith, to the S-3 Stockholders thatthe Company is commencing to prepare a Company-initiated registration statement(other than a registration effected solely to implement an employee benefitplan or a transaction to which Rule 145 or any other similar rule underthe Securities Act is applicable); provided, however, that theCompany shall use its best efforts to achieve such effectiveness promptlyfollowing such period.

 

(c)          Participation in Underwritten Offerings.  No Holder may participate in any underwrittenoffering hereunder unless such Holder (i) agrees to sell such Holder’sCommon Stock on the basis provided in any underwriting arrangements approved bythe persons who have selected the underwriter (it being understood any sucharrangements shall be customary for 

 

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registered secondaryofferings) and (ii) accurately completes in a timely manner and executesall questionnaires, powers of attorney, underwriting agreements and otherdocuments customarily required under the terms of such underwritingarrangements; provided,**however,that no Holder will be required to provide representations and warranties orindemnities in any such underwriting agreement that are not customary forinvestors of its type in such transaction. The underwriter for any underwritten registration pursuant to this Section 2.1shall be selected by the holders of a majority of the Registrable Securitiesbeing registered and shall be reasonably acceptable to the Company.

 

**Section 2.2.****                               ****Piggyback Registration****. **If, at any time or times following theeffective date of this Agreement, the Company shall seek to register any sharesof Common Stock under the Securities Act for offer or sale to the public,whether for its own account or for the account of others (except with respectto registration statements on Form S-4, S-8 or another form not availablefor registering the Registrable Securities for sale, but expressly including a Form S-3Registration pursuant to Section 2.1(b) above), the Company willpromptly give written notice thereof to the Holders.  If within twenty (20) days after theirreceipt of such notice, one or more Holder or Holders request the inclusion ofsome or all of the Registrable Securities owned by them in such registration,the Company will use best efforts to effect the registration under theSecurities Act of the offer and sale of all such Registrable Securities.  The Holders’ registration rights arisingunder this Section 2.2 as a result of any registration pursuant to Section 2.1shall be subject to the conditions, obligations and limitations provided in Section 2.1related to such registration.

 

**Section 2.3.****                               ****Further Obligations of the Company****.**

 

(a)          General Obligations Upon Registration.  Whenever the Company is required hereunder toregister any Registrable Securities, it agrees that it shall also do thefollowing:

 

(i)                                     Pay all expenses of such registrations and offerings (exclusive ofunderwriting discounts and commissions) and the reasonable fees and expenses ofnot more than one independent counsel for the Holders or the S-3 Stockholders(as the case may be) (as satisfactory to the Holders or the S-3 Stockholders(as the case may be) holding not less than 50.1% of the Registrable Securitiesbeing registered thereby) in connection with any registrations pursuant to Sections2.1(a), 2.1(b) or 2.2;

 

(ii)                                  Use its best efforts diligently to prepare and file with the Commission aregistration statement and such amendments and supplements to said registrationstatement and the prospectus used in connection therewith as may be necessaryto keep said registration statement effective until the Holder(s) or theS-3 Stockholder(s) (as the case may be) have completed the distributiondescribed in the registration statement relating thereto (but for no more thannine (9) months) and to comply with the provisions of the Securities Actwith respect to the sale of securities covered by said registration statementfor such period;

 

(iii)                               Furnish to each selling Holder or the S-3 Stockholder (as the case maybe) such copies of each preliminary and final prospectus and such otherdocuments as such Holder or S-3 Stockholder may reasonably request tofacilitate the public offering of his, her or its Registrable Securities;

 

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(iv)          Enter into any reasonable underwritingagreement required by the proposed underwriter, if any, in such form andcontaining such terms as are customary; provided, however, thatno Holder or S-3 Stockholder (as the case may be) shall be required to make anyrepresentations or warranties other than with respect to his, her or its titleto the Registrable Securities and with respect to any written informationprovided by the Holder or the S-3 Stockholder to the Company specifically foruse in the registration statement, and if the underwriter requires thatrepresentations or warranties be made and that indemnification be provided, theCompany shall make all such representations and warranties and provide all suchindemnities, including, without limitation, in respect of the Company’sbusiness, operations and financial information and the disclosures relatingthereto in the prospectus;

 

(v)           Use its best efforts to register orqualify the securities covered by said registration statement under thesecurities or “blue sky” laws of such jurisdictions as any selling Holder orS-3 Stockholder (as the case may be) may reasonably request; provided,that the Company shall not be required to register or qualify the securities inany jurisdictions in which such registration or qualification would require itto qualify to do business therein;

 

(vi)          Immediately notify each selling Holderor S-3 Stockholder (as the case may be), at any time when a prospectus relatingto his, her or its Registrable Securities is required to be delivered under theSecurities Act, of the happening of any event as a result of which suchprospectus contains an untrue statement of a material fact or omits anymaterial fact necessary to make the statements therein not misleading, and, atthe request of any such selling Holder or S-3 Stockholder, prepare a supplementor amendment to such prospectus so that, as thereafter delivered to thepurchasers of such Registrable Securities, such prospectus will not contain anyuntrue statement of a material fact or omit to state any material factnecessary to make the statements therein, in the light of the circumstancesunder which such statements were made, not misleading;

 

(vii)         Cause all such Registrable Securitiesto be listed on each securities exchange or quotation system on which similarsecurities issued by the Company are then listed or quoted;

 

(viii)        Otherwise use its best efforts to complywith the securities laws of the United States and other applicablejurisdictions and all applicable rules and regulations of the Commissionand comparable governmental agencies in other applicable jurisdictions and makegenerally available to its stockholders, in each case as soon as practicable,but not later than forty five (45) days after the close of the period coveredthereby, an earnings statement of the Company which will satisfy the provisionsof Section 11(a) of the Securities Act;

 

(ix)           Obtain and furnish to each sellingHolder or S-3 Stockholder (as the case may be), immediately prior to theeffectiveness of the registration statement (and, in the case of anunderwritten offering, at the time of delivery of any Registrable Securitiessold pursuant thereto), a comfort letter from the Company’s independent publicaccountants in customary form and covering such matters of the type customarilycovered by cold comfort letters as the Holders or the S-3 Stockholders of amajority of the Registrable Securities being sold may reasonably request; and

 

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(x)            Otherwise cooperate with theunderwriter or underwriters, the Commission and other regulatory agencies andtake all actions and execute and deliver or cause to be executed and deliveredall documents necessary to effect the registration of any Registrable Securitiesunder this Article II.

 

(b)   Shelf Registration.

 

(i)            To the extent the Company is awell-known seasoned issuer (as defined in Rule 405 under the SecuritiesAct) (a “WKSI”) at the time any request for registration pursuant to Section 2.1or 2.2 is submitted to the Company, and such request for registrationrequests that the Company file an automatic shelf registration statement (asdefined in Rule 405 under the Securities Act) (an “automatic shelfregistration statement”) on Form S-3 or any comparable or successorform, the Company shall file an automatic shelf registration statement whichcovers those Registrable Securities which are requested to be registered, allin accordance with the provisions of Section 2.1 or 2.2.  If the Company does not pay the filing feecovering Registrable Securities at the time such automatic shelf registrationstatement is filed, the Company agrees to pay such fee at such time or times asthe Registrable Securities are to be sold. If at any time when the Company is required to re-evaluate its WKSIstatus, the Company determines that it is not a WKSI, the Company shall use itscommercially reasonable efforts to refile the shelf registration statement on Form S-3or any comparable or successor form and, if such form is not available, Form S-1or any comparable or successor form, and keep such registration statementeffective during the period during which such registration statement isrequired to be kept effective.

 

(ii)           If the Company is a WKSI at the timeit files any shelf registration statement for the benefit of the holders of anyof its securities other than the Holders, the Company agrees that it shall useits commercially reasonable efforts to include in such registration statementsuch disclosures as may be required by Rule 430B under the Securities Act(referring to the unnamed selling security holders in a generic manner byidentifying the initial offering of the securities to the Holders) in order toensure that the Holders may be added to such shelf registration statement at alater time upon exercise of their rights pursuant to Section 2.1(b) throughthe filing of a prospectus supplement rather than a post-effective amendment.

 

(c)   Deemed Underwriters.  To the extent that, in connection with aregistration of any of the Registrable Securities under the Securities Actpursuant to Section 2.1 or 2.2, any selling Holder is deemedto be an underwriter of Registrable Securities pursuant to any Commissioncomments or policies, the Company agrees that (1) the indemnification andcontribution provisions contained in Section 2.4 shall beapplicable to the benefit of the selling Holders in their role as deemedunderwriter in addition to their capacity as Holder and (2) the sellingHolders shall be entitled to conduct the due diligence which they wouldnormally conduct in connection with an offering of securities registered underthe Securities Act, including without limitation receipt of customary opinionsand comfort letters.

 

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**Section 2.4.****           Indemnification;Contribution.**

 

(a)   Indemnification.

 

(i)            Incident to any registrationstatement referred to in this Article II, the Company willindemnify and hold harmless each underwriter, each Holder and S-3 Stockholderwho offers or sells any such Registrable Securities in connection with suchregistration statement (including its partners (including partners of partnersand stockholders of any such partners), and members, managers, directors,officers, employees and agents of any of them (a “Selling Holder”), andeach person who controls any of them within the meaning of Section 15 ofthe Securities Act or Section 20 of the Exchange Act (a “ControllingPerson”), from and against any and all losses, claims, damages,liabilities, costs and expenses (including any investigation, legal and otherexpenses incurred in connection with, and any amount paid in settlement of, anyaction, suit or proceeding or any claim asserted, as the same are incurred)(collectively, the “Damages”), joint or several, to which they, or anyof them, may become subject under the Securities Act, the Exchange Act or otherfederal or state statutory law or regulation, at common law or otherwise,insofar as such Damages arise out of or are based on (A) any untruestatement or alleged untrue statement of a material fact contained in suchregistration statement (including any related preliminary or definitiveprospectus, or any amendment or supplement to such registration statement orprospectus), (B) any omission or alleged omission to state in suchdocument a material fact required to be stated in it or necessary to make thestatements therein, in the light of the circumstances under which suchstatements were made, not misleading, or (C) any violation by the Companyof the Securities Act, any state securities or “blue sky” laws or any rule orregulation thereunder in connection with such registration; provided, however,that the Company will not be liable to the extent that such Damages arise fromand are based on an untrue statement or omission or alleged untrue statement oromission made in reliance on and in conformity with information furnished inwriting to the Company by such underwriter, Selling Holder or ControllingPerson expressly for use in such registration statement.

 

(ii)           With respect to any such untruestatement or omission or alleged untrue statement or omission in theinformation furnished in writing to the Company by such Selling Holderexpressly for use in any registration statement referred to in this Article II,such Selling Holder will, severally and not jointly, indemnify and holdharmless each underwriter, the Company (including its directors, officers,employees and agents), each other Holder and S-3 Stockholder (including itspartners (including partners of partners and stockholders of such partners) andmembers, managers, directors, officers, employees and agents of any of them,and each person who controls any of them within the meaning of Section 15of the Securities Act or Section 20 of the Exchange Act), from and againstany Damages, joint or several, to which they, or any of them, may becomesubject under the Securities Act, the Exchange Act or other federal or statestatutory law or regulation, at common law or otherwise to the same extentprovided in the immediately preceding sentence. In no event, however, shall the liability of a Selling Holder forindemnification under this Section 2.4(a)(ii) exceed the netproceeds received by such Selling Holder from its, his or her sale ofRegistrable Securities under such registration statement.

 

(b)   Contribution.  If the indemnification provided for in Section 2.4(a) abovefor any reason is held by a court of competent jurisdiction to be unavailableto an indemnified party in respect of any Damages referred to therein, theneach indemnifying party under this Section 2.4, in lieu ofindemnifying such indemnified party thereunder, shall contribute to the amountpaid or payable by such indemnified party as a result of such Damages (i) insuch proportion as is appropriate to reflect the relative benefits received bythe Company, the other Selling Holders 

 

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and the underwriters fromthe offering of the Registrable Securities or (ii) if the allocationprovided by clause (i) above is not permitted by applicable law, in suchproportion as is appropriate to reflect not only the relative benefits referredto in clause (i) above but also the relative fault of the Company, theother Selling Holders and the underwriters in connection with the statements oromissions which resulted in such Damages, as well as any other relevantequitable considerations; provided, however, that in the event ofa registration statement filed in response to a request under Section 2.1(b),the proportion of contribution by the Company, the other Selling Holders andthe underwriters shall in all cases be governed by clause (ii) above.  The relative benefits received by theCompany, the Selling Holders and the underwriters shall be deemed to be in thesame respective proportions that the net proceeds from the offering (beforededucting expenses) received by the Company and the Selling Holders and theunderwriting discount received by the underwriters, in each case as set forthin the table on the cover page of the applicable prospectus, bear to theaggregate public offering price of the Registrable Securities.  The relative fault of the Company, theSelling Holders and the underwriters shall be determined by reference to, amongother things, whether the untrue or alleged untrue statement of a material factor the omission or alleged omission to state a material fact relates toinformation supplied by the Company, the Selling Holders or the underwritersand the parties’ relative intent, knowledge, access to information andopportunity to correct or prevent such statement or omission.  The Company, the Selling Holders, and theunderwriters agree that it would not be just and equitable if contributionpursuant to this Section 2.4(b) were determined by pro rata orper capita allocation or by any other method of allocation which does not takeaccount of the equitable considerations referred to in the immediatelypreceding sentences.  In no event,however, shall a Selling Holder be required to contribute any amount under thisSection 2.4(b) in excess of the net proceeds received by suchSelling Holder from its sale of Registrable Securities under such registrationstatement.  No person found guilty offraudulent misrepresentation (within the meaning of Section 11(f) ofthe Securities Act) shall be entitled to contribution from any person who wasnot found guilty of such fraudulent misrepresentation.

 

(c)   Expenses.  The amount paid by an indemnifying party orpayable to an indemnified party as a result of the Damages shall be deemed toinclude, subject to the limitations set forth above, any legal or otherexpenses reasonably incurred by such indemnified party in connection withinvestigating or defending any such action or claim, payable as the same areincurred.

 

(d)   Independent Investigation.  The indemnification and contribution providedfor in this Section 2.4 will remain in full force and effectregardless of any investigation made by or on behalf of the indemnified partiesor any officer, director, employee, agent or controlling person of theindemnified parties.

 

**Section 2.5.****           Rule 144 and Rule 144A. **The Company shall use its best efforts to take allaction as may be required as a condition to the availability of Rule 144or Rule 144A under the Securities Act (or any successor or similarexemptive rules hereafter in effect). The Company shall furnish to any Holder or S-3 Stockholder, withinfifteen (15) days of a written request, a written statement executed by theCompany as to the steps it has taken to comply with the current publicinformation requirement of Rule 144 or Rule 144A or such successorrules.

 

**Section 2.6.****           Most Favored Nations. **At any time that the Company grants to other 

 

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Personseither registration rights on Form S-3 (or any successor form) and/orpiggyback registration rights which are, in either case, more favorable thanthe rights granted in this Agreement to the Holders or the S-3 Stockholders,the Company shall grant equivalent or more favorable registration rights to theHolders and the S-3 Stockholders of Registrable Securities.

 

**Section 2.7.****           Mergers, Etc. **The Company shall not, directly or indirectly,enter into any merger, consolidation or reorganization in which the Companyshall not be the surviving corporation unless the surviving corporation shall,prior to such merger, consolidation or reorganization, agree in writing toassume the obligations of the Company under this Agreement, and for thatpurpose references hereunder to “Registrable Securities” shall be deemedto include the shares of capital stock, if any, that the Holders or S-3Stockholders would be entitled to receive in exchange for capital stock of theCompany under any such merger, consolidation or reorganization; provided,however, that, to the extent the Holders or S-3 Stockholders receivesecurities that are by their terms convertible into shares of common stock ofthe issuer thereof, then only such shares of common stock as are issued orissuable upon conversion of said convertible securities shall be includedwithin the definition of “Registrable Securities.”

 

**Section 2.8.****           No Conflict ofRights. **The Company shall not, at any time after thedate hereof, grant any registration rights that conflict with the registrationrights granted hereby; provided, that the Company, subject to compliance with Section 2.6above, may grant any other registration rights.

 

**ARTICLE III**

 

**GENERAL**

 

**Section 3.1.****           Amendments, Waiversand Consents. **For thepurposes of this Agreement and all agreements executed pursuant hereto, nocourse of dealing between or among any of the parties hereto and no delay onthe part of any party hereto in exercising any rights hereunder or thereundershall operate as a waiver of the rights hereof and thereof.  This Agreement may not be amended or modifiedor any provision hereof waived without the joint written consent of:  (i) the Company and (ii) Stockholdersholding, together as a single class, not less than a majority of theoutstanding shares of Common Stock, calculated on a fully diluted basis, thenheld by the Stockholders. Notwithstanding the foregoing, no amendment approved in accordance withthis Section 3.1 shall be effective if and to the extent that suchamendment (a) creates any additional affirmative obligations to becomplied with by any Stockholder that are not applicable to all Stockholders or(b) adversely affects any Stockholder’s rights existing under thisAgreement prior to such amendment in a manner that is inconsistent with, ordisproportionate to, the effect of such amendment on the other parties hereto,unless in each case such amendment is approved by such Stockholder.

 

Moreover, notwithstanding the foregoing, any party maywaive any provision hereof intended for his, her or its benefit by priorwritten consent.

 

Notwithstandingthe foregoing, any person who is the Transferee of Registrable Securities andwho executes a Joinder Agreement in accordance with Section 3.13shall be added to Schedule I without the consent of any party hereto andshall be considered a Stockholder for 

 

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purposesof this Agreement.

 

**Section 3.2.****           Governing Law. **This Agreement shall bedeemed to be a contract made under, and shall be construed in accordance with,the laws of the State of Delaware, without giving effect to conflict of lawsprinciples thereof.

 

**Section 3.3.****           Section Headings. **The descriptive headings inthis Agreement have been inserted for convenience only and shall not be deemedto limit or otherwise affect the construction of any provision thereof orhereof.

 

**Section 3.4.****           Counterparts. **This Agreement may beexecuted simultaneously in any number of counterparts, each of which when soexecuted and delivered shall be taken to be an original; but such counterpartsshall together constitute but one and the same document.

 

**Section 3.5.****           Notices and Demands. **Any notice or demand whichis required or provided to be given under this Agreement shall be deemed tohave been sufficiently given and received for all purposes (i) whendelivered by hand, fax, telex or other method of facsimile (but only uponwritten confirmation of receipt), (ii) five (5) days after being sentby certified or registered mail, postage and charges prepaid, return receiptrequested, or (iii) two (2) days after being sent by overnightdelivery providing receipt of delivery, to the addresses designated by theCompany and the Stockholders, respectively.

 

**Section 3.6.****           Submission toJurisdiction; Venue.**

 

(a)   Each of the parties hereto hereby irrevocablyand unconditionally submits, for itself, himself or herself and its, his or herproperty, to the nonexclusive jurisdiction of any Delaware State court or anyfederal court of the United States of America sitting in the State of Delaware,and any appellate court from any thereof, in any action or proceeding arisingout of or relating to this Agreement or for recognition or enforcement of anyjudgment, and each of the parties hereto hereby irrevocably and unconditionallyagrees that all claims in respect of any such action or proceeding may be heardand determined in any such Delaware State court or, to the extent permitted bylaw, in any such federal court.  Each ofthe parties hereto agrees that a final judgment in any such action or proceedingshall be conclusive and may be enforced in other jurisdictions by suit on thejudgment or in any other manner provided by law.

 

(b)   Each of the parties hereto irrevocably andunconditionally waives, to the fullest extent that it, he or she may legally andeffectively do so, any objection that it, he or she may now or hereafter haveto the laying of venue of any suit, action or proceeding arising out of orrelating to the Agreement in any Delaware state or federal court sitting in theState of Delaware.  Each of the partieshereto irrevocably waives, to the fullest extent permitted by law, the defenseof an inconvenient forum to the maintenance of such action or proceeding in anysuch court.

 

(c)   The parties further agree that the mailing bycertified or registered mail, return receipt requested to both (i) theother parties and (ii) counsel for the other parties (or such substitutecounsel as such party may have given written notice of prior to the date ofsuch mailing), of any process required by any such court shall constitute validand lawful service of process against them, without the necessity for serviceby any other means provided by law.

 

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**Section 3.7.****           Remedies;Severability. **NotwithstandingSection 3.6 above, it is specifically understood and agreed thatany breach of the provisions of this Agreement by any Person subject heretowill result in irreparable injury to the other parties hereto, that the remedyat law alone will be an inadequate remedy for such breach, and that, inaddition to any other remedies which they may have, such other parties mayenforce their respective rights by actions for specific performance (to theextent permitted by law).  The Companymay refuse to recognize any unauthorized Transferee for purposes of theregistration rights provided in this Agreement until the relevant party orparties have complied with all applicable provisions of this Agreement.  Whenever possible, each provision of thisAgreement shall be interpreted in such a manner as to be effective and validunder applicable law, but if any provision of this Agreement shall be deemedprohibited or invalid under such applicable law, such provision shall beineffective to the extent of such prohibition or invalidity, and suchprohibition or invalidity shall not invalidate the remainder of such provisionor the other provisions of this Agreement.

 

**Section 3.8.****           Waiver of Jury Trial. **NO PARTY TO THIS AGREEMENTOR ANY ASSIGNEE, SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF A PARTY SHALLSEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHERLITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THEOTHER AGREEMENTS OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE PARTIES.  NO PARTY WILL SEEK TO CONSOLIDATE ANY SUCHACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION INWHICH A JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED.  THE PROVISIONS OF THIS SECTION HAVE BEENFULLY DISCUSSED BY THE PARTIES HERETO, AND THESE PROVISIONS SHALL BE SUBJECT TONO EXCEPTIONS.  NEITHER PARTY HAS IN ANYWAY AGREED WITH OR REPRESENTED TO THE OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILLNOT BE FULLY ENFORCED IN ALL INSTANCES.

 

**Section 3.9.****           Integration;Effectiveness. **This Agreement,including the exhibits, documents and instruments referred to herein ortherein, constitutes the entire agreement, and supersedes all other prioragreements and understandings, both written and oral, among the parties withrespect to the subject matter hereof.  ThisAgreement amends, restates and replaces in its entirety the Stockholders’Agreement and is binding on all the parties to the Stockholders’ Agreement, andthe failure of one or more parties to the Stockholders’ Agreement to sign thisAgreement shall not affect such effectiveness.

 

**Section 3.10.****        Successors and Assigns. **Except as otherwise providedherein, this Agreement shall be binding upon and inure to the benefit of and beenforceable by the successors and permitted assigns and executors, administratorsand heirs of each party hereto.  Exceptas contemplated hereby in connection with a Transfer of Securities, thisAgreement, and any rights or obligations existing hereunder,may not be assignedor otherwise transferred by any party.

 

**Section 3.11.****        Further Assurances. **Each party shall cooperateand take such action as may be reasonably requested by another party in orderto carry out the provisions and purposes of this Agreement and the transactionscontemplated hereby.

 

**Section 3.12.****        Term. **The provisions of thisAgreement shall terminate and be of no 

 

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furtherforce or effect upon the earlier of (i) such time as no Stockholders holdany Registrable Securities or (ii) when the requisite parties mutuallyagree to terminate the Agreement.

 

**Section 3.13.****        Joinder Agreement. **The rights of theStockholders set forth in Article II are transferable to eachTransferee of shares of Registrable Securities. Each such Transferee mustconsent in writing to be bound by the terms and conditions of this Agreement inorder to acquire the rights granted hereunder by executing a copy of the aJoinder Agreement in the form attached hereto as Exhibit A, whichJoinder Agreement shall bind them to, and grant them the benefits of, thisAgreement as though they were original parties hereto.  For this purpose all the Stockholders andNetSpend hereby appoint the Company as their agent and attorney to execute suchJoinder Agreement on their behalf and expressly bind themselves to the JoinderAgreement by the Company’s execution of that Agreement without further actionon their part.

 

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INWITNESS WHEREOF, the undersigned have hereunto executed this RegistrationRights Agreement as of the day and year first above written.

 
|   | NETSPEND  HOLDINGS, INC. |
|--------|-------------------------------|
|   |                          |
|   |                          |
|   | By:                           | /s/ Christopher T. Brown |
|   |                          | Name:   Christopher T. Brown |
|   |                          | Title:   General Counsel |

 

[FirstSignature Page to Registration Rights Agreement]

 

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|   | OAK INVESTMENT PARTNERS X, LIMITED PARTNERSHIP  |
|--------|-------------------------------------------------|
|   |                                            |
|   | By: Oak Associates X,  LLC, its General Partner |
|   |                                            |   |   |
|   |                                            |   |   |
|   |                                            | By: | /s/ Ann H. Lamont |
|   |                                            |   | Name:   Anne H. Lamont |
|   |                                            |   | Title:   Managing Member |
|   |                                            |   |   |
|   | OAK X AFFILIATES FUND, LIMITED PARTNERSHIP      |
|   |                                            |
|   | By: Oak X Affiliates,  LLC, its General Partner |
|   |                                            |   |   |
|   |                                            |   |   |
|   |                                            | By: | /s/ Ann H. Lamont |
|   |                                            |   | Name:   Ann H. Lamont |
|   |                                            |   | Title:   Managing Member |

 

[SecondSignature Page to Registration Rights Agreement]

 

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|   | SKYLIGHT  HOLDINGS I, LLC |
|--------|---------------------------|
|   |                      |
|   |                      |
|   | By:                       | /s/ Frank J. Rodriguez |
|   |                      | Name:  Frank J. Rodriguez |
|   |                      | Title:  Chief Executive Officer |

 

[Third Signature Page toRegistration Rights Agreement]

 

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**EXHIBIT A**

 

**Form of Joinder Agreement**

 

This Joinder Agreement made this            day                        of201  , by and between                            (the “New Stockholder”) and (ifNew Stockholder is a married individual) the New Stockholder’s spouse,NetSpend Holdings, Inc., a Delaware corporation (together with anysuccessor thereto, the “Company”), NetSpend Corporation, a Delawarecorporation and a wholly-owned subsidiary of the Company (“NetSpend”),and the stockholders of the Company, who are parties to that certainRegistration Rights Agreement, dated as of October 22, 2010 (as amended,modified or supplemented from time to time, the “Agreement”).  Capitalized terms not defined herein shallhave the meanings set forth in the Agreement.

 

**WITNESSETH**:

 

WHEREAS, New Stockholder is desirous of obtaining the registrationrights offered by the Agreement; and

 

WHEREAS, the Company and the Stockholders have required in theAgreement that all Transferees of Registrable Securities must enter into anJoinder Agreement binding the New Stockholder and (if New Stockholder is a married individual) the New Stockholder’sspouse to the Agreement to the same extent as if they were originalparties thereto.

 

NOW, THEREFORE, in consideration of the mutual promises of the parties,the New Stockholder and (if New Stockholderis a married individual) his or her spouse agree as follows:

 

The New Stockholder and (if NewStockholder is a married individual) his or her spouse acknowledge thatthey have read the Agreement.  The NewStockholder and (if New Stockholder isa married individual) his or her spouse shall be bound by, and shallhave the benefit of, all the terms and conditions set out in the Agreement tothe same extent as if they were “Stockholders”****as defined in the Agreement. This Joinder Agreement shall be attached to and become a part of theAgreement.

 

|             |   |                                      |
|------------------|--------|-------------------------------------------|
| New  Stockholder |   | Spouse  of New Stockholder, if applicable |

 

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Agreed to on behalf of the Stockholders, NetSpend and the Companypursuant to Section  3.13 of the Agreement.

 
|   | NETSPEND  HOLDINGS, INC., a Delaware corporation |
|--------|-------------------------------------------------------|
|   |                                                  |   |
|   |                                                  |   |
|   | By:                                                   |   |
|   |                                                  | Name: |
|   |                                                  | Title: |

 

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**SCHEDULE I**

 

**OakInvestment Partners X, Limited Partnership**

**SkylightHoldings I, LLC**

**TexasGrowth Fund II**

**RoySosa 2008 Retained Annuity Trust No. 1**

**BertrandSosa 2008 Retained Annuity Trust No. 1**

**GEFUSSBIC, LP**

**Inter-AtlanticFund, LP**

**StephenW. Reesing**

**Oak XAffiliates Fund, L.P.**

**StephenB. Galasso**

**MPVFinancial Technology Holdings, LLC**

**GordonMacGregor**

**JohnMitchell**

**ReneGonzalez**

**PhillipArcher**

**FutehKao**

**FrancesPinedo**

**TonyCosentino**

**J.P.Young**

**HCF Partners,L.P.**

**KeithSibson**

**ACECash Express, Inc.**

**MarkoCekic**

**PatrickBrown**

**WilliamBlair & Company, LLC**

**TheMoney Store, L.P. / Money Box**

**MelissaWalker**

**FredProctor**

**NateShockey**

**PeterNorwood**

**Dale W.Conrad**

**VictorMikhailov**

**RossHamilton**

**SelenaSierra**

**WayneP. Cooper**

**LauraBeth Wiederaenders**

**TreborCarpenter Schell**

**AlanNalle**

**BeverlyWhitley**

**MilosCekic**

**Chas.A. Neal & Company**

**AlbertA. Prast**

**JessicaMowbray Rivas**

**ClaudiaDiaz**

**PeterR. Lasusa, Jr.**

 

I-1

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**CraigWhite**

**GolubFamily, Ltd.**

**BlakeNewman**

**RobertG. Fitzgerald**

**ReginaRivas**

**LeonardM. Golub**

**JenniferAgado**

**DovePartners, Ltd.**

**MichaelAltamirano**

**MelissaSalinas Sullivan**

 

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