EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT"), dated as of
November 9, 1994, is among (a) H.T.E., Inc., a Florida corporation (the
"COMPANY"), (b) BancBoston Ventures Inc., a Massachusetts corporation ("BBV"),
(c) any other holder of Preferred Shares or Investor Registrable Securities who
becomes a party to this Agreement by executing an Insturment of Accession (an
"INSTRUMENT OF ACCESSION") in the form of SCHEDULE 1 hereto (together with BBV,
the "INVESTORS") and (d) Xxxxxx Xxxxxxx, Xxxx Xxxxxxx and any Person who becomes
a party to this Agreement by executing an Instrument of Accession (collectively,
the "STOCKHOLDERS"). The Investors and the Stockholders are referred to
collectively herein as the "HOLDERS" and each individually as a "HOLDER".
This Agreement is made in connection with a Securities Purchase
Agreement of even date herewith among the Company and the Investors, (the
"SECURITIES PURCHASE AGREEMENT") and a Stockholders Agreement of even date
herewith among the Investors, the Company and the Stockholders (as the same may
be amended, restated, modified or supplemented and in effect from time to time,
the "STOCKHOLDERS AGREEMENT"). In order to induce the Investors to enter into
the Securities Purchase Agreement and the Stockholders Agreement, the Company
has agreed to provide the registration rights set forth in this Agreement.
The parties hereby agree as follows:
1. DEFINITIONS. As used herein, the following terms have the following
meanings:
"BBV" has the meaning specified in the preamble hereto.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means collectively, the Company's Class A Common Stock,
$0.01 par value per share, and Class B Common Stock, $0.01 par value per share.
"DEMAND REGISTRATION" has the meaning specified in Section 2(a).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"HOLDER" means one of the Holders identified in the introductory
paragraph to this Agreement or such other Person to whom such Holder shall have
assigned or transferred such Holder's Registrable Securities in accordance with
the Stockholders Agreement and Section 12(g) of this Agreement.
"INDEMNIFIED PARTY" has the meaning specified in Section 8(b) hereof.
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"INDEMNIFYING PARTY" has the meaning specified in Section 8(b) hereof.
"INSTRUMENT OF ACCESSION" has the meaning specified in the preamble
hereto.
"INVESTOR REGISTRABLE SECURITIES" means, at any time, all of the then
issued and outstanding (a) shares of Common Stock issued or issuable to any
Investor upon conversion of the Preferred Shares pursuant to the Company's
Charter, (b) shares of any class of Common Stock into which such shares of
Common Stock have been converted, (c) capital stock or other securities into
which or for which any such shares of Common Stock shall have been converted or
exchanged pursuant to any recapitalization, reorganization or merger of the
Company, and (d) shares of capital stock issued with respect to the foregoing
pursuant to a stock split or stock dividend, PROVIDED that the foregoing capital
stock shall be Investor Registrable Securities only so long as such capital
stock has not been sold pursuant to a Public Sale.
"INVESTORS" has the meaning specified in the preamble hereto.
"NASDAQ" has the meaning specified in Section 5(a)(vi).
"OTHER REGISTRABLE SECURITIES" means, at any time, all of the then
issued and outstanding (a) shares of Common Stock held by the Stockholders on
the date of this Agreement, (b) shares of Common Stock issuable to the
Stockholders upon exercise of stock options granted by the Company in compliance
with the Securities Purchase Agreement, (c) shares of any class of Common Stock
into which such shares of Common Stock have been converted, (d) capital stock or
other securities into which or for which any such shares of Common Stock shall
have been converted or exchanged pursuant to any recapitalization,
reorganization or merger of the Company, and (e) shares of capital stock issued
with respect to the foregoing pursuant to a stock split or stock dividend,
PROVIDED that the foregoing capital stock shall be Other Registrable Securities
only so long as such capital stock has not been sold pursuant to a Public Sale.
"PERSON" shall mean any individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"PIGGYBACK REGISTRATION" has the meaning specified in Section 3(a).
"PREFERRED SHARES" shall mean, collectively, (a) the Preferred Stock
issued to the Investors pursuant to the Securities Purchase Agreement, and (b)
any capital stock or other securities into which or for which any such shares of
Preferred Stock shall have been converted or exchanged pursuant to any
recapitalization, reorganization or merger of the Company; PROVIDED that the
foregoing capital stock shall be Preferred Shares only so long as such capital
stock has not been sold pursuant to a Public Sale.
"PREFERRED STOCK" shall mean the Company's Preferred Stock, $1.00 par
value per share.
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"PROSPECTUS" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any Prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and all other amendments and supplements
to the Prospectus, including post-effective amendments, and all material
incorporated by reference in such Prospectus.
"PUBLIC SALE" shall mean any sale of Common Stock or Preferred Stock to
the public pursuant to a public offering registered under the Securities Act, or
to the public through a broker or market-maker pursuant to the provisions of
Rule 144 (or any successor rule) adopted under the Securities Act.
"REGISTERED" and "REGISTRATION" shall mean a registration effected by
preparing and filing a Registration Statement in compliance with the Securities
Act and the declaration or ordering by the Commission of effectiveness of such
Registration Statement.
"REGISTRABLE SECURITIES" shall mean all Investor Registrable Securities
and all Other Registrable Securities.
"REGISTRATION EXPENSES" has the meaning specified in Section 7.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all material incorporated by reference in such Registration
Statement.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SECURITIES PURCHASE AGREEMENT" has the meaning specified in the
preamble hereto.
"STOCKHOLDERS" has the meaning specified in the preamble.
"STOCKHOLDERS AGREEMENT" has the meaning specified in the preamble
hereto.
"UNDERWRITERS' MAXIMUM NUMBER" means, for any Piggyback Registration,
Demand Registration or other registration which is an underwritten registration,
that number of securities to which such registration should, in the opinion of
the managing underwriters of such registration in the light of marketing
factors, be limited.
2. DEMAND REGISTRATION.
(a) REQUEST FOR DEMAND REGISTRATION.
(i) Subject to the limitations contained in the following
paragraphs of this Section 2, the Holders of the Investor Registrable
Securities may, at any time
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and from time to time give to the Company, pursuant to this
subparagraph (i), a written request for the registration by the Company
under the Securities Act of all or any part of the Investor Registrable
Securities of such Holders (such registration being herein called a
"DEMAND REGISTRATION"). Within ten (10) days after the receipt by the
Company of any such written request, the Company will give written
notice of such registration request to all Holders of Registrable
Securities.
(ii) Subject to the limitations contained in the following
paragraphs of this Section 2, after the receipt of such written request
for a Demand Registration, (A) the Company will be obligated and
required to include in such Demand Registration all Registrable
Securities with respect to which the Company shall receive from Holders
of Registrable Securities, within thirty (30) days after the date on
which the Company shall have given to all Holders a written notice of
registration request pursuant to Section 2(a)(i) hereof, the written
requests of such Holders for inclusion in such Demand Registration, and
(B) the Company will use its best efforts in good faith to effect
promptly the registration of all such Registrable Securities. All
written requests made by Holders of Registrable Securities pursuant to
this subparagraph (ii) will specify the number of shares of Registrable
Securities to be registered and will also specify the intended method
of disposition thereof.
(b) LIMITATIONS ON DEMAND REGISTRATION.
(i) The Holders of Investor Registrable Securities will not be
entitled to require the Company to effect (A) more than three (3)
Demand Registrations on Form S-1 (or other comparable form adopted by
the Commission), (B) any Demand Registration on Form S-1 (or other
comparable form adopted by the Commission) if the aggregate number of
Investor Registrable Securities requested to be registered pursuant to
such Demand Registration is less than twenty-five percent (25%) of the
number of Investor Registrable Securities on the date of this Agreement
(as adjusted for stock splits, split-ups, combinations and other
recapitalizations), (C) any Demand Registration on any form other than
Form S-1 (or other comparable form adopted by the Commission) if the
aggregate number of Investor Registrable Securities requested to be
registered pursuant to such Demand Registration is less than fifteen
percent (15%) of the number of Investor Registrable Securities on the
date of this Agreement (as adjusted for stock splits, split-ups,
combinations and other recapitalizations), or (D) any Demand
Registration prior to the earlier of (I) November 9, 1997 or (II) the
closing of the Company's initial public offering of its Common Stock.
(ii) Any registration initiated by Holders of Investor
Registrable Securities as a Demand Registration pursuant to Section
2(a) hereof shall not count as a Demand Registration for purposes of
Section 2(b)(i) hereof unless and
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until such registration shall have become effective and all Investor
Registrable Securities requested to be included in such registration
shall have been actually sold.
(iii) The Company shall not be obligated or required to effect
the Demand Registration of any Investor Registrable Securities pursuant
to Section 2(a) hereof during the period commencing on the date falling
thirty (30) days prior to the Company's estimated date of filing of,
and ending on the date 180 days following the effective date of, any
Registration Statement pertaining to any underwritten registration
initiated by the Company, for the account of the Company, if the
written request of Holders for such Demand Registration pursuant to
Section 2(a)(i) hereof shall have been received by the Company after
the Company shall have given to all Holders of Registrable Securities a
written notice stating that the Company is commencing an underwritten
registration initiated by the Company; PROVIDED, HOWEVER, that the
Company will use its best efforts in good faith to cause any such
Registration Statement to be filed and to become effective as
expeditiously as shall be reasonably possible.
(c) PRIORITY ON DEMAND REGISTRATIONS. If the managing underwriters in
any underwritten Demand Registration shall give written advice to the Company
and the Holders of Investor Registrable Securities to be included in such
registration of an Underwriters' Maximum Number, then: (i) the Company will be
obligated and required to include in such registration that number of Investor
Registrable Securities requested by the Holders thereof to be included in such
registration which does not exceed the Underwriters' Maximum Number, and such
number of Investor Registrable Securities shall be allocated PRO RATA among the
Holders of such Investor Registrable Securities on the basis of the number of
Investor Registrable Securities requested to be included therein by each such
Holder; (ii) if the Underwriters' Maximum Number exceeds the number of Investor
Registrable Securities requested by the Holders thereof to be included in such
registration, then the Company will be obligated and required to include in such
registration that number of Other Registrable Securities requested by the
Holders thereof to be included in such registration and which does not exceed
such excess and such Other Registrable Securities shall be allocated PRO RATA
among the Holders thereof on the basis of the number of Other Registrable
Securities requested to be included therein by each such Holder; (iii) if the
Underwriters' Maximum Number exceeds the number of Registrable Securities
requested by the Holders thereof to be included in such registration, then the
Company will be entitled to include in such registration that number of
securities which shall have been requested by the Company to be included in such
registration for the account of the Company and which shall not be greater than
such excess; and (iv) if the Underwriters' Maximum Number exceeds the sum of the
number of Registrable Securities which the Company shall be required to include
in such Demand Registration and the number of securities which the Company
proposes to offer and sell for its own account in such registration, then the
Company may include in such registration that number of other securities which
persons (other than the Holders as such)
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shall have requested be included in such registration and which shall not be
greater than such excess. Neither the Company nor any of its stockholders (other
than Holders of Investor Registrable Securities) shall be entitled to include
any securities in any underwritten Demand Registration unless the Company or
such stockholders (as the case may be) shall have agreed in writing to sell such
securities on the same terms and conditions as shall apply to the Investor
Registrable Securities to be included in such Demand Registration.
(d) SELECTION OF UNDERWRITERS. The Holders of a majority of the
Investor Registrable Securities to be included in any Demand Registration shall
determine whether or not such Demand Registration shall be underwritten and
shall select the investment banker(s) and managing underwriter(s) to administer
such offering.
3. PIGGYBACK REGISTRATIONS.
(a) RIGHTS TO PIGGYBACK.
(i) If (and on each occasion that) the Company proposes to
register any of its securities under the Securities Act either for the
Company's own account or for the account of any of its stockholders
(other than Holders) (each such registration not withdrawn or abandoned
prior to the effective date thereof being herein called a "PIGGYBACK
REGISTRATION"), the Company will give written notice to all Holders of
Registrable Securities of such proposal not later than the earlier to
occur of (A) the tenth day following the receipt by the Company of
notice of exercise of any registration rights by any persons, and (B)
the thirtieth day prior to the anticipated filing date of such
Piggyback Registration.
(ii) Subject to the provisions contained in paragraph (b) of
this Section 3 and in the last sentence of this subparagraph (ii), (A)
the Company will be obligated and required to include in each Piggyback
Registration all Registrable Securities with respect to which the
Company shall receive from Holders of Registrable Securities, within
fifteen (15) days after the date on which the Company shall have given
written notice of such Piggyback Registration to all Holders of
Registrable Securities pursuant to Section 3(a)(i) hereof, the written
requests of such Holders for inclusion in such Piggyback Registration,
and (B) the Company will use its best efforts in good faith to effect
promptly the registration of all such Registrable Securities. The
Holders of Registrable Securities shall be permitted to withdraw all or
any part of the Registrable Securities of such Holders from any
Piggyback Registration at any time prior to the effective date of such
Piggyback Registration unless such Holders of Registrable Securities
shall have entered into a written agreement with the Company's
underwriters establishing the terms and conditions under which such
Holders would be obligated to sell such securities in such Piggyback
Registration. The Company will not be obligated or required to include
any Registrable Securities in any registration effected solely to
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implement an employee benefit plan or a transaction to which Rule 145
of the Commission is applicable.
(b) PRIORITY ON PIGGYBACK REGISTRATIONS. If a Piggyback Registration is
an underwritten registration, and the managing underwriters shall give written
advice to the Company of an Underwriters' Maximum Number, then: (i) the Company
shall be entitled to include in such registration that number of securities
which the Company proposes to offer and sell for its own account in such
registration and which does not exceed the Underwriters' Maximum Number; (ii)
the Company will be obligated and required to include in such registration that
number of Investor Registrable Securities which shall have been requested by the
Holders thereof to be included in such registration and which does not exceed
the difference between the Underwriters' Maximum Number and the number of
Registrable Securities which the Company proposes to offer and sell for its own
account in such registration; and (iii) if the Underwriters' Maximum Number
exceeds the sum of the number of Registrable Securities which the Company shall
be required to include in such registration pursuant to clause (ii) and the
number of securities which the Company proposes to offer and sell for its own
account in such registration, then the Company may include in such registration
that number of other securities which persons shall have requested be included
in such registration and which shall not be greater than such excess.
(c) SELECTION OF UNDERWRITERS. In any Piggyback Registration, the
Company shall (unless the Company shall otherwise agree) have the right to
select the investment bankers and managing underwriters in such registration.
4. LOCKUP AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY HOLDERS OF REGISTRABLE SECURITIES.
Each Holder of Registrable Securities, if the Company or the managing
underwriters so request in connection with any underwritten registration of the
Company' securities, will not, without the prior written consent of the Company
or such underwriters, effect any public sale or other distribution of any equity
securities of the Company, including any sale pursuant to Rule 144, during the
seven (7) days prior to, and (i) with respect to any Holder of Investor
Registrable Securities, during the forty-five (45) day period commencing on the
effective date of such underwritten registration and (ii) with respect to all
other Holders of Registrable Securities, during the ninety (90) day period
commencing on, the effective date of such underwritten registration, except in
connection with such underwritten registration.
(b) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The Company agrees not
to effect any public sale or other distribution of its equity securities, or any
securities convertible into or exchangeable or exercisable for such equity
securities, during the period commencing on the seventh day prior to, and ending
on the one hundred eightieth (180th) day following, the effective date of any
underwritten Demand or Piggyback Registration, except in connection with any
such underwritten registration and except for
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any offering pursuant to an employee benefit plan and registered on Form S-8 (or
any successor form).
5. REGISTRATION PROCEDURES.
(a) Whenever the Holders of Registrable Securities have requested that
any Registrable Securities be registered pursuant to this Agreement, the Company
will use its best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof, and pursuant thereto the Company will as expeditiously as possible:
(i) prepare and file with the Commission a Registration
Statement with respect to such Registrable Securities and use its best
efforts to cause such Registration Statement to become effective
(PROVIDED, that before filing a Registration Statement or Prospectus or
any amendments or supplements thereto, the Company will furnish to
counsel selected by the holders of Registrable Securities covered by
such Registration Statement, copies of all such documents proposed to
be filed, which documents will be subject to the timely review of such
counsel);
(ii) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective for not more than six (6) months and, comply with
the provisions of the Securities Act with respect to the disposition of
all securities covered by such Registration Statement during such
effective period in accordance with the intended methods of disposition
by the sellers thereof set forth in such Registration Statement;
(iii) upon request, furnish to each seller of Registrable
Securities such number of copies of such Registration Statement, each
amendment and supplement thereto, the Prospectus included in such
Registration Statement (including each preliminary Prospectus) and such
other documents as each such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by each
such seller;
(iv) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of
such jurisdictions as any seller reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to
enable such seller to consummate the disposition in such jurisdictions
of the Registrable Securities owned by such seller; PROVIDED that the
Company will not be required (A) to qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify
but for this subparagraph (a)(iv), (B) to subject itself to taxation in
any such jurisdiction or (C) to consent to general service of process
in any such jurisdiction;
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(v) notify each seller of such Registrable Securities, at any
time when a Prospectus relating thereto is required to be delivered
under the Securities Act, of the happening 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 not misleading, and, at the request of any
such seller, the Company will promptly prepare (and, when completed,
give notice to each seller of Registrable Securities) a supplement or
amendment to such Prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such Prospectus will not
contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading; PROVIDED
that upon such notification by the Company, each seller of such
Registrable Securities will not offer or sell such Registrable
Securities until the Company has notified such seller that it has
prepared a supplement or amendment to such Prospectus and delivered
copies of such supplement or amendment to such Seller;
(vi) cause all such Registrable Securities to be listed on
each securities exchange on which similar securities issued by the
Company are then listed and, if not so listed, to be listed with the
National Association of Securities Dealers automated quotation system
("NASDAQ");
(vii) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such
Registration Statement;
(viii) enter into all such customary agreements (including
underwriting agreements in customary form) and take all such other
actions as the holders of a majority of the Investor Registrable
Securities being sold or the underwriters, if any, reasonably request
in order to expedite or facilitate the disposition of such Registrable
Securities (including, without limitation, effecting a stock split or a
combination of shares);
(ix) make available for inspection on a confidential basis by
any seller, any underwriter participating in any disposition pursuant
to such Registration Statement, and any attorney, accountant or other
agent retained by any such seller or underwriter (in each case after
reasonable prior notice), all financial and other records, pertinent
corporate documents and properties of the Company, and cause the
Company's officers, directors, employees and independent accountants to
supply on a confidential basis all information reasonably requested by
any such seller, underwriter, attorney, accountant or agent in
connection with such Registration Statement;
(x) permit any holder of Registrable Securities which holder,
in its sole and exclusive judgment, might be deemed to be an
underwriter or a controlling person of the Company within the meaning
of Section 15 of the Securities Act, to participate in the preparation
of such registration or comparable statement and to
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permit the insertion therein of material, furnished to the Company in
writing, which in the reasonable judgment of such holder and its
counsel should be included, provided that such material shall be
furnished under such circumstances as shall cause it to be subject to
the indemnification provisions provided pursuant to Section 8(b)
hereof; and
(xi) in the event of the issuance of any stop order suspending
the effectiveness of a Registration Statement, or of any order
suspending or preventing the use of any related Prospectus or
suspending the qualification of any Registrable Securities included in
such Registration Statement for sale in any jurisdiction, the Company
will use its best efforts promptly to obtain the withdrawal of such
order.
6. COOPERATION BY PROSPECTIVE SELLERS, ETC.
(a) Each prospective seller of Registrable Securities will furnish to
the Company in writing such information as the Company may reasonably require
from such seller, and otherwise reasonably cooperate with the Company in
connection with any Registration Statement with respect to such Registrable
Securities.
(b) The failure of any prospective seller of Registrable Securities to
furnish any information or documents in accordance with any provision contained
in this Agreement shall not affect the obligations of the Company under this
Agreement to any remaining sellers who furnish such information and documents
unless in the reasonable opinion of counsel to the Company or the underwriters,
such failure impairs or may impair the viability of the offering or the legality
of the Registration Statement or the underlying offering.
(c) The Holders of Registrable Securities included in any Registration
Statement will not (until further notice) effect sales thereof after receipt of
telegraphic or written notice from the Company to suspend sales to permit the
Company to correct or update such Registration Statement or Prospectus; but the
obligations of the Company with respect to maintaining any Registration
Statement current and effective shall be extended by a period of days equal to
the period such suspension is in effect.
(d) At the end of any period during which the Company is obligated to
keep any Registration Statement current and effective as provided by Section 5
hereof (and any extensions thereof required by the preceding paragraph (c) of
this Section 6), the Holders of Registrable Securities included in such
Registration Statement shall discontinue sales of shares pursuant to such
Registration Statement upon receipt of notice from the Company of its intention
to remove from registration the shares covered by such Registration Statement
which remain unsold, and such Holders shall notify the Company of the number of
shares registered which remain unsold promptly after receipt of such notice from
the Company.
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7. REGISTRATION EXPENSES.
(a) All reasonable costs and expenses incurred or sustained in
connection with or arising out of each registration pursuant to Sections 2 and 3
hereof, including, without limitation, all registration and filing fees, fees
and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel for the underwriters in connection
with the blue sky qualification of Registrable Securities), printing expenses,
messenger, telephone and delivery expenses, fees and disbursements of counsel
for the Company, reasonable fees and disbursements of counsel representing the
Holders, fees and disbursements of all independent certified public accountants
(including the expenses relating to the preparation and delivery of any special
audit or "cold comfort" letters required by or incident to such registration),
and fees and disbursements of underwriters (excluding discounts and
commissions), the reasonable fees and expenses of any special experts retained
by the Company of its own initiative or at the request of the managing
underwriters in connection with such registration, and fees and expenses of all
(if any) other persons retained by the Company (all such costs and expenses
being herein called, collectively, the "REGISTRATION EXPENSES"), will be borne
and paid by the Company; PROVIDED that the Company shall only have an obligation
hereunder to pay the fees and disbursements of one counsel to represent the
Investors. The Company will, in any case, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, and the
fees and expenses incurred in connection with the listing of the securities to
be registered on each securities exchange on which similar securities of the
Company are then listed.
(b) The Company will not bear the cost of nor pay for any stock
transfer taxes imposed in respect of the transfer of any Registrable Securities
to any purchaser thereof by any Holder of Registrable Securities in connection
with any registration of Registrable Securities pursuant to this Agreement.
(c) To the extent that Registration Expenses incident to any
registration are, under the terms of this Agreement, not required to be paid by
the Company, each Holder of Registrable Securities included in such registration
will pay all Registration Expenses which are clearly solely attributable to the
registration of such Holder's Registrable Securities so included in such
registration, and all other Registration Expenses not so attributable to one
Holder will be borne and paid by all sellers of securities included in such
registration in proportion to the number of securities so included by each such
seller.
8. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company will indemnify each
Holder requesting or joining in a registration and each underwriter of the
securities so registered, the officers, directors and partners of each such
Person and each Person who controls any thereof (within the meaning of the
Securities Act) against any and all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on
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any untrue statement (or alleged untrue statement) of any material fact
contained in any Prospectus, offering circular or other document incident to any
registration, qualification or compliance (or in any related Registration
Statement, notification or the like) or any omission (or alleged omission) to
state therein any material fact required to be stated therein or necessary to
make the statements therein not misleading, or any violation by the Company of
any rule or regulation promulgated under the Securities Act applicable to the
Company and relating to any action or inaction required of the Company in
connection with any such registration, qualification or compliance, and the
Company will reimburse each such Holder, underwriter, officer, director, partner
and controlling person for any legal and any other expenses reasonably incurred
in connection with investigating or defending any such claim, loss, damage,
liability or action; PROVIDED, HOWEVER, that the Company will not be liable in
any such case to the extent that any such claim, loss, damage or liability
arises out of or is based on any untrue statement or omission based upon written
information furnished to the Company in an instrument duly executed by such
Holder, underwriter, officer, director, partner or controlling person and stated
to be specifically for use in such Prospectus, offering circular or other
document.
(b) INDEMNIFICATION BY EACH HOLDER. Each Holder requesting or joining
in a registration will indemnify each underwriter of the securities so
registered, the Company and its officers and directors and each person, if any,
who controls any thereof (within the meaning of the Securities Act) and their
respective successors in title and assigns against any and all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of any material fact
contained in any Prospectus, offering circular or other document incident to any
registration, qualification or compliance (or in any related Registration
Statement, notification or the like) or any omission (or alleged omission) to
state therein any material fact required to be stated therein or necessary to
make the statement therein not misleading, and such Holder will reimburse each
underwriter, the Company and each other person indemnified pursuant to this
paragraph (b) for any legal and any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action; PROVIDED, HOWEVER, that this paragraph (b) shall apply only
if (and only to the extent that) such statement or omission was made in reliance
upon written information furnished to such underwriter or the Company in an
instrument duly executed by any such Holder and stated to be specifically for
use in such Prospectus, offering circular or other document (or related
Registration Statement, notification or the like) or any amendment or supplement
thereto; and, PROVIDED FURTHER, that each Holder's liability hereunder with
respect to any particular registration shall be limited to an amount equal to
the proceeds received by such Holder from the Registrable Securities sold by
such Holder in such registration.
(c) INDEMNIFICATION PROCEEDINGS. Each party entitled to indemnification
pursuant to this Section 8 (the "INDEMNIFIED PARTY") shall give notice to the
party required to provide indemnification pursuant to this Section 8 (the
"INDEMNIFYING PARTY") promptly after such Indemnified Party acquires actual
knowledge of any claim as to which
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indemnity may be sought, and shall permit the Indemnifying Party (at its
expense) to assume the defense of any claim or any litigation resulting
therefrom; PROVIDED that counsel for the Indemnifying Party, who shall conduct
the defense of such claim or litigation, shall be acceptable to the Indemnified
Party, and the Indemnified Party may participate in such defense at such party's
expense; and PROVIDED, FURTHER, that the failure by any Indemnified Party to
give notice as provided in this paragraph (C) shall not relieve the Indemnifying
Party of its obligations under this Section 8 except to the extent that the
failure results in a failure of actual notice to the Indemnifying Party and such
Indemnifying Party is damaged solely as a result of the failure to give notice.
No Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation. The
reimbursement required by this Section 8 shall be made by periodic payments
during the course of the investigation or defense, as and when bills are
received or expenses incurred.
9. CONTRIBUTION IN LIEU OF INDEMNIFICATION. If the indemnification
provided for in Section 8 hereof is unavailable to a party that would have been
an Indemnified Party under any such section in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, then
each party that would have been an Indemnifying Party thereunder shall, in lieu
of indemnifying such Indemnified Party, contribute to the amount paid or payable
by such Indemnified Party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Indemnifying Party on the one hand and such
Indemnified Party on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof). The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Indemnifying Party or such Indemnified Party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and each Holder of
Registrable Securities agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by PRO-RATA allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9. The amount paid or
payable by an Indemnified Party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section 9
shall include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
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10. RULE 144 REQUIREMENTS; FORM S-3. From time to time after the
earlier to occur of (a) the ninetieth day following the date on which there
shall first become effective a Registration Statement filed by the Company under
the Securities Act, or (b) the date on which the Company shall register a class
of securities under Section 12 of the Exchange Act, the Company will make every
effort in good faith to take all steps necessary to ensure that the Company will
be eligible to register securities on Form S-3 (or any comparable form adopted
by the Commission) as soon thereafter as possible, and to make publicly
available and available to the Holders of Registrable Securities, pursuant to
Rule 144 of the Commission under the Securities Act, such information as shall
be necessary to enable the Holders of Registrable Securities to make sales of
Registrable Securities pursuant to that Rule. The Company will furnish to any
Holder of Registrable Securities, upon request made by such Holder at any time
after the undertaking of the Company in the preceding sentence shall have first
become effective, a written statement signed by the Company, addressed to such
Holder, describing briefly the action the Company has taken or proposes to take
to comply with the current public information requirements of Rule 144. The
Company will, at the request of any Holder of Registrable Securities, upon
receipt from such Holder of a certificate certifying (i) that such Holder has
held such Registrable Securities for a period of not less than three (3)
consecutive years, (ii) that such Holder has not been an affiliate (as defined
in Rule 144) of the Company for more than the ninety (90) preceding days, and
(iii) as to such other matters as may be appropriate in accordance with such
Rule, remove from the stock certificates representing such Registrable
Securities that portion of any restrictive legend which relates to the
registration provisions of the Securities Act.
11. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any underwritten registration pursuant to this Agreement unless
such Person (a) agrees to sell such Person's securities on the basis provided in
any underwriting arrangements approved by the persons entitled, under the
provisions hereof, to approve such arrangements, and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required by the terms of such underwriting
arrangements. Any Holder of Registrable Securities to be included in any
underwritten registration shall be entitled at any time to withdraw such
Registrable Securities from such registration prior to its effective date in the
event that such Holder shall disapprove of any of the terms of the related
underwriting agreement.
12. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company has not previously entered
into any agreement with respect to its Common Stock granting any registration
rights to any Person, and will not on or after the date of this Agreement enter
into any agreement with respect to its securities which grants demand
registration rights to anyone or which is inconsistent with the rights granted
to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof.
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(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of Holders owning at
least a majority of the shares of the Registrable Securities, and (i) in the
case of any amendment, modification, supplement, waiver or consent which
adversely affects in any way any of the rights of the Holders of Investor
Registrable Securities hereunder, the written consent of Holders owning at least
a majority of the Investor Registrable Securities at the time outstanding and
(ii) in the case of any amendment, modification, supplement, waiver or consent
which adversely affects in any way any of the rights of the Holders of Other
Registrable Securities hereunder, the written consent of Holders owning at least
a majority of the Other Registrable Securities at the time outstanding.
(c) REGISTRABLE SECURITIES HELD BY THE COMPANY. Whenever the consent or
approval of Holders of Registrable Securities is required pursuant to this
Agreement, Registrable Securities held by the Company shall not be counted in
determining whether such consent or approval was duly and properly given by such
Holders.
(d) TERM. The agreements of the Company contained in this Agreement
shall continue in full force and effect so long as any Holder holds any
Registrable Securities.
(e) REMEDIES. In the event of a breach by the Company of its
obligations under this Agreement, each Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any of the provisions of this Agreement
and hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
(f) NOTICES. Any notice provided for in this Agreement will be in
writing and will be deemed properly delivered if either personally delivered or
sent by overnight courier or telecopier or mailed certified or registered mail,
return receipt requested, postage prepaid, to the recipient at the address
specified below:
(i) if to a Holder, at such Holder's address on the stock
transfer books of the Company; and
(ii) if to the Company, at:
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 12(f). Any such notice shall be effective
(A) if delivered
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personally or by telecopy, when received, (B) if sent by overnight courier, when
receipted for, and (C) if mailed, three (3) days after being mailed as described
above.
(g) SUCCESSORS AND ASSIGNS. This Agreement and the rights of any Holder
hereunder may be assigned to, and shall inure to the benefit of, any Person to
whom such Holder transfers Registrable Securities, PROVIDED that such transfer
is made in compliance with the provisions of the Stockholders Agreement and the
transferee agrees to be bound by all of the terms and conditions of this
Agreement by executing and delivering to the Company an Instrument of Accession.
(h) COUNTERPARTS. This Agreement may be executed in two or more
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument.
(i) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not constitute a part of this Agreement, nor shall they
affect their meaning, construction or effect.
(j) GOVERNING LAW. The validity, performance, construction and effect
of this Agreement shall be governed by and construed in accordance with the
internal laws of the State of Florida, without giving effect to principles of
conflicts of law.
(k) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
THE COMPANY: H.T.E., INC.
By: ---------------------------------------------
Title:
THE INVESTORS: BANCBOSTON VENTURES INC.
By: ---------------------------------------------
Title:
THE STOCKHOLDERS:
-------------------------------------------------
Xxxxxx X. Xxxxxxx
-------------------------------------------------
Xxxx X. Xxxxxxx
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SCHEDULE 1
TO REGISTRATION
RIGHTS AGREEMENT
INSTRUMENT OF ACCESSION
Reference is made to that certain Registration Rights Agreement dated
as of November 9, 1994, a copy of which is attached hereto (as amended and in
effect from time to time, the "REGISTRATION RIGHTS AGREEMENT"), among H.T.E.,
Inc., a Florida corporation (the "COMPANY"), and the Holders (as defined
therein).
The undersigned, _____________________, in order to become the owner or
holder of ______ shares of the [Preferred Stock, $0.01 par value per share]
[Class A Common Stock, $0.01 par value per share] [Class B Common Stock, $0.01
par value per share] (the "SHARES") of the Company hereby agrees that by his
execution hereof the undersigned is a Holder party to the Registration Rights
Agreement subject to all of the restrictions and conditions applicable to
Holders set forth in such Registration Rights Agreement, and all of the Shares
purchased by the undersigned in connection herewith (and any and all shares of
stock of the Company issued in respect thereof) are subject to all the
restrictions and conditions applicable to Registrable Securities as set forth in
the Registration Rights Agreement. This Instrument of Accession shall take
effect and shall become a part of said Registration Rights Agreement immediately
upon execution.
Executed as of the date set forth below under the laws of the State of
Florida.
Signature: _____________________________________________________
Address: _____________________________________________________
_____________________________________________________
Date: _____________________________________________________
Accepted:
H.T.E., INC.
By:__________________________________________________
Date:________________________________________________
