1
EXHIBIT 10.14
INVESTORS' RIGHTS AGREEMENT
This Investors' Rights Agreement (this "AGREEMENT") is made and entered
into as of September 10, 1996 (the "EFFECTIVE DATE") by and among Aptex Software
Inc., a California corporation (the "COMPANY"), HNC Software Inc., a Delaware
corporation ("HNC") and Xxxxxxx X. Xxxxxxxx ("XXXXXXXX"). HNC and Xxxxxxxx are
collectively hereinafter referred to as the "INVESTORS" and each is individually
sometimes hereinafter referred to as an "INVESTOR."
R E C I T A L S
A. Concurrently herewith, HNC has agreed to purchase from the
Company, and the Company has agreed to sell to HNC, shares of the Company's
Series A Preferred Stock ("SERIES A PREFERRED STOCK") on the terms and
conditions set forth in that certain Series A Preferred Stock Purchase Agreement
dated of even date herewith by and between the Company and HNC (the "HNC
PURCHASE AGREEMENT").
B. In addition, concurrently herewith, Xxxxxxxx has agreed to
purchase from the Company, and the Company has agreed to sell to Xxxxxxxx,
1,000,000 shares of the Company's Common Stock on the terms and conditions set
forth in that certain Restricted Stock Purchase Agreement dated of even date
herewith by and between the Company and Xxxxxxxx (the "XXXXXXXX PURCHASE
AGREEMENT") and pursuant to the terms and conditions of the Company's 1996
Equity Incentive Plan.
C. The HNC Purchase Agreement and the Xxxxxxxx Purchase
Agreement each provide that the parties shall enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth, the parties hereto agree as follows:
1. RIGHT OF FIRST REFUSAL.
1.1 GENERAL. Subject to the terms and conditions of this Agreement,
the Company hereby grants to each Investor the right of first refusal to
purchase such Investor's Pro Rata Share (as defined below), of all (or any part)
of any "New Securities" (as defined in Section 1.2) that the Company may from
time to time issue after the Effective Date of this Agreement (the "RIGHT OF
FIRST REFUSAL"). For purposes of this Right of First Refusal, an Investor's "PRO
RATA SHARE" is the percentage obtained by dividing (a) the number of "Rights
Securities" (as defined in Section 1.3) held of record (or issuable upon the
conversion, exchange or exercise of other securities held of record) by such
Investor on the date the applicable "Issue Notice" (as defined in Section 1.4)
is given (the "NOTICE DATE"), by (b) the number of shares of Common Stock equal
to the sum of (i) the total number of shares of Common Stock of the Company
2
outstanding on the applicable Notice Date, plus (ii) the total number of shares
of Common Stock of the Company into which all shares of Preferred Stock or other
convertible securities (including but not limited to convertible debt
securities) of the Company that are outstanding on the applicable Notice Date
are then convertible, plus (iii) the number of shares of Common Stock of the
Company (other than outstanding shares of Common Stock described in clause (i)
above) that are reserved for issuance under any stock purchase, stock option
and/or stock bonus plans of the Company on the applicable Notice Date, plus (iv)
the number of shares of Common Stock of the Company reserved for issuance under
any stock options, stock warrants or similar securities (other than shares
described in the immediately preceding clause (iii)).
1.2 NEW SECURITIES. As used herein, the term "NEW SECURITIES" shall
mean any Common Stock or Preferred Stock of the Company of any class or series,
whether now authorized or not, and any options, warrants or other rights to
purchase or acquire any shares of such Common Stock or Preferred Stock, and
securities of any other type whatsoever (including without limitation debt
securities) that are, or may become, convertible or exchangeable into shares of
such Common Stock or Preferred Stock; provided, however, that the term "New
Securities" does not include:
(i) the shares of the Company's Series A Preferred Stock
purchased by HNC under the HNC Purchase Agreement, or any stock or securities
into which such shares of Series A Preferred Stock may be converted by their
terms, and the shares of the Company's Common Stock purchased by Xxxxxxxx under
the Xxxxxxxx Purchase Agreement;
(ii) any shares of the Company's Common Stock (and/or options
or warrants to purchase Common Stock) that, pursuant to the approval of the
Company's Board of Directors, are issued or issuable to employees, officers,
directors, contractors, advisors or consultants of the Company pursuant to the
Company's 1996 Equity Incentive Plan, as such may be amended, or any other
similar equity incentive plans, agreements or arrangements that are
affirmatively approved by at least eighty percent (80%) of the authorized
members of the Board of Directors of the Company;
(iii) any shares of Common Stock or other securities of the
Company that are issuable upon conversion of or with respect to any then
outstanding shares of Preferred Stock of the Company or upon the conversion of
or with respect to any other then outstanding securities of the Company held or
owned by HNC;
(iv) shares of the Company's Common Stock or Preferred Stock
issued in connection with any stock split or stock dividend;
(v) securities offered by the Company to the public pursuant
to a registration statement filed under the Securities Act of 1933, as amended,
or any successor law thereto (the "1933 ACT"); and
(vi) securities issued by the Company pursuant to the
acquisition of another corporation or business by the Company, whether by
consolidation, merger, purchase of
-2-
3
assets, or purchase of stock or other securities; provided that such acquisition
transaction is duly approved by the Company's Board of Directors.
1.3 RIGHTS SECURITIES. The term "RIGHTS SECURITIES" means: (i) the
shares of Common Stock of the Company issuable upon the conversion of any then
outstanding shares of Series A Preferred Stock issued to HNC under the HNC
Purchase Agreement; (ii) the shares of Common Stock of the Company issued to
Xxxxxxxx under the Xxxxxxxx Purchase Agreement (the "XXXXXXXX SHARES"); or (iii)
any other shares of Common Stock of the Company then owned by HNC or Xxxxxxxx or
issuable upon the conversion or exchange of any shares of Preferred Stock or
other securities of the Company then owned by HNC or Xxxxxxxx, or upon the
exercise of warrant, option or other right to acquire securities of the Company
then owned by HNC or Xxxxxxxx. For purposes of this Section 1, an Investor shall
be deemed to own all Rights Securities issuable upon the conversion, exchange or
exercise of any shares or other securities of the Company owned by such
Investor.
1.4 PROCEDURE. In the event that the Company proposes to undertake
an issuance of New Securities, it shall give to each Investor written notice of
its intention to issue such New Securities (the "ISSUE NOTICE"), describing the
type and amount of such New Securities and the price and the general terms upon
which the Company proposes to issue such New Securities. Each Investor shall
have ten (10) days from the date of mailing of any such Notice to agree in
writing to purchase such Investor's Pro Rata Share of such New Securities for
the price and upon the general terms specified in the Notice by giving written
notice to the Company and stating therein the quantity of New Securities to be
purchased (not to exceed such Investor's Pro Rata Share). If any Investor fails
to so agree in writing within such ten (10) day period to purchase such
Investor's full Pro Rata Share of an offering of New Securities (a
"NONPURCHASING Investor"), then such Nonpurchasing Investor shall forfeit such
Nonpurchasing Investor's Right of First Refusal hereunder to purchase that part
of such Nonpurchasing Investor's Pro Rata Share of such New Securities that such
Nonpurchasing Investor did not so agree to purchase and the Company shall
promptly give the other Investor (provided that such other Investor has timely
agreed to purchase such Investor's full Pro Rata Share of such offering of New
Securities) written notice of the failure of the Nonpurchasing Investor to
purchase such Nonpurchasing Investor's full Pro Rata Share of such offering of
New Securities (the "OVERALLOTMENT NOTICE"), and the other Investor shall then
have the right to agree to purchase all or any portion of the Nonpurchasing
Investor's unpurchased Pro Rata Share of such offering of New Securities at any
time within five (5) days after receiving the Overallotment Notice.
1.5 FAILURE TO EXERCISE. In the event that the Investors fail to
exercise in full the Right of First Refusal within such ten (10) plus five (5)
day period described in Section 1.4, then the Company shall have 120 days
thereafter to sell the New Securities with respect to which the Investors'
Rights of First Refusal hereunder were not exercised, at a price and upon
general terms not materially more favorable to the purchasers thereof than
specified in the Company's Issue Notice to the Investors. In the event that the
Company has not issued and sold the New Securities within such 120 day period,
then the Company shall not thereafter issue or sell any
-3-
4
New Securities without again first offering such New Securities to the Investors
in accordance with this Section 1.
1.6 ALTERNATIVE RIGHT TO MAINTAIN OWNERSHIP RATIO RELATIVE TO HNC.
If at any time during the Maintenance Period (as defined below) HNC purchases
from the Company any newly issued New Securities (an "HNC Purchase") and
Xxxxxxxx does not exercise his Right of First Refusal under Section 1 to
purchase any of such New Securities on the terms that such New Securities were
offered in such HNC Purchase then, subject to the terms and conditions of this
Section 1.6, Xxxxxxxx shall have the non-transferable right, at his option, to
purchase from the Company, within thirty (30) days after the Company gives
Xxxxxxxx written notice of such HNC Purchase and the date on which such HNC
Purchase occurred (the "HNC PURCHASE DATE"), that number of shares of the
Company's Common Stock (the "MAINTENANCE NUMBER") that, when added to the number
of Rights Securities held of record (or issuable upon the conversion, exchange
or exercise of other securities held of record) by Xxxxxxxx immediately prior to
such HNC Purchase Date (the "PRE-PURCHASE SHARES"), would enable Xxxxxxxx to
maintain exactly the same Ownership Ratio (as defined below) immediately after
such HNC Purchase Date as Xxxxxxxx has immediately prior to such HNC Purchase
Date (assuming no transfer, disposition or loss by Xxxxxxxx of any securities of
the Company owned by him immediately prior to such HNC Purchase Date); provided,
however, that notwithstanding the foregoing, the Maintenance Number may not
exceed that number of shares of Common Stock that, when added to the
Pre-Purchase Shares, would cause Xxxxxxxx'x Pro Rata Share (as defined in
Section 1.1 hereof) as of immediately after such HNC Purchase Date to be greater
than Xxxxxxxx'x Pro Rata Share as of immediately prior to such HNC Purchase
Date. As used herein, the term "OWNERSHIP RATIO" means the ratio, as of a given
date, between (i) the number of Rights Securities held of record (or issuable
upon the conversion, exchange or exercise of other securities held of record) by
Xxxxxxxx on such date and (ii) the number of Rights Securities held of record
(or issuable upon the conversion, exchange or exercise of other securities held
of record) by HNC on such date.
The following terms and conditions apply to any purchase by Xxxxxxxx
of shares of the Company's Common Stock pursuant to the provisions of this
Section 1.6.
(a) Maintenance Period Defined. The "MAINTENANCE PERIOD" means
that time period (1) beginning after the Company has issued to HNC, and HNC has
purchased, the shares of Series A Preferred Stock issuable to HNC under the HNC
Purchase Agreement, and (2) ending on the earlier to occur of: (i) the first
date on which the aggregate cumulative amount of consideration paid by HNC to
the Company for all New Securities originally purchased by HNC from the Company
equals or exceeds Three Million Dollars ($3,000,000), where, for this purpose,
the amount of non-cash consideration paid by HNC for New Securities shall be
conclusively deemed to be the value ascribed to such consideration in good faith
by the Company's Board of Directors; (ii) the termination of this Agreement
under any of the provisions of Section 3 hereof; (iii) the termination of HNC's
rights and obligations under Section 3.2 hereof; (iv) the termination of
Xxxxxxxx'x rights under this Agreement under the provisions of Section 3.3
hereof; (v) the termination of this Agreement by HNC under Section 3.5 hereof;
or (vi) the termination of this Agreement for any other reason.
-4-
5
(b) Other Terms of Purchase. Any shares of the Company's
Common Stock purchased by Xxxxxxxx pursuant to this Section 1.6 ("MAINTENANCE
SHARES") must be purchased on the same terms and conditions as the original
terms and conditions of the Xxxxxxxx Purchase Agreement (including without
limitation the Right of First Refusal, the Vesting Repurchase Option and the
General Repurchase Option in favor of HNC (as those terms are defined in the
Xxxxxxxx Purchase Agreement)), except that: (i) the Purchase Price Per Share at
which Maintenance Shares are purchased by Xxxxxxxx shall be the fair market
value per share of the Company's Common Stock as of the date such shares are
purchased by Xxxxxxxx, as determined in good faith by the Company's Board of
Directors; (ii) all Maintenance Shares purchased by Xxxxxxxx shall be paid for
in full in cash on the date of purchase; (iii) the vesting schedule on which
such Maintenance Shares are released from the Company's Vesting Repurchase
Option to repurchase such shares at their original purchase price upon
termination of Xxxxxxxx'x employment shall be identical to the vesting schedule
set forth in Section 5 of the Xxxxxxxx Purchase Agreement applicable to the
Xxxxxxxx Shares (i.e., so that, regardless of the date on which the Maintenance
Shares are actually purchased, the percentage of the Maintenance Shares that are
"Vested Shares" that are not subject to the Company's Vesting Repurchase Option
will be the same as the percentage of the Xxxxxxxx Shares that are then "Vested
Shares" within the meaning of the Xxxxxxxx Purchase Agreement).
(c) Restrictions. Xxxxxxxx'x right to purchase any Maintenance
Shares arising from a particular HNC Purchase shall forever lapse and expire if
Xxxxxxxx has not consummated the purchase of such Maintenance Shares within
thirty (30) days after the Company gives Xxxxxxxx the written notice of such HNC
Purchase and HNC Purchase Date (a "PURCHASE NOTICE") as provided above in
accordance with the notice provisions of Section 5.1 of this Agreement.
(d) Intent. The intention of the parties is that Xxxxxxxx'x
rights under this Section 1.6 and Xxxxxxxx'x Right of First Refusal under
Section 1.1 are alternative and mutually exclusive rights.
2. VOTING AGREEMENT.
2.1 ELECTION OF BOARD OF DIRECTORS. Subject to the terms and
conditions of this Agreement, each Investor agrees to vote all shares of capital
stock of the Company now or hereafter directly or indirectly owned (of record or
beneficially) by such Investor in such manner as may be necessary to elect (and
maintain in office) as members of the Company's Board of Directors (the
"BOARD"), the following persons:
(a) the person who is then the Chief Executive Officer
of the Company (the "CEO").
(b) two (2) individuals designated by HNC who are each
executive officers of HNC (the "HNC DESIGNEES");
-5-
6
(c) one (1) individual designated by HNC who is an outside
member of the Board of Directors of HNC and is not employed by HNC or its
affiliates (the "HNC OUTSIDE DIRECTOR DESIGNEE"); and
(d) one (1) individual nominated by a majority of the other
four Board nominees, who shall not be an employee of the Company or HNC or any
of their respective affiliates (the "SELECTED DIRECTOR").
For purposes of this Agreement: (i) any individual who is
designated for election to the Board pursuant to the foregoing provisions of
this Section 2.1 is hereinafter referred to as a "BOARD DESIGNEE"; and (ii) any
person or corporation or group of directors who has or have the right to
designate one or more Board Designees for election to the Board pursuant to the
foregoing provisions of this Section 2.1 is hereinafter referred to as a
"DESIGNATOR" or as "DESIGNATORS", as applicable.
The parties agree that the CEO shall fill the seat on the
Company's Board of Directors that, pursuant to the currently effective
provisions of Section 4.5 of Article VI of the Company's Restated Articles of
Incorporation, is to be filled by the vote of the holders of the Company's
outstanding Common Stock, voting together as a single class, and that the HNC
Designees, the HNC Outside Director Designee and the Selected Director will fill
the four seats on the Company's Board of Directors that, pursuant to the
currently effective provisions of Section 4.5 of Article VI of the Company's
Restated Articles of Incorporation, are to be filled by the vote of the holders
of the Company's outstanding Series A Preferred Stock, voting together as a
single class. In the event the Company's Articles of Incorporation are amended
so as to alter the above-described provisions for electing directors of the
Company, the foregoing provisions of this Section 2.1 will cease to be of any
further force or effect.
2.2 INITIAL BOARD MEMBERS. The initial CEO shall be Xxxxxxx
X. Xxxxxxxx; the initial HNC Designees shall be Xxxxxx X. North and Xxxxxxx
X. Xxxxxx; and the initial HNC Director Designee shall be Xxxxxxx X.
Xxxxxxx, Xx. The parties acknowledge that the initial Selected Director has
not yet been designated.
2.3 CHANGES IN BOARD DESIGNEES. From time to time during the
term of this Agreement, a Designator or Designators may, in their sole
discretion:
(a) elect to remove from the Board any incumbent Board
Designee who occupies a Board seat for which such Designator or Designators are
entitled to designate the Board Designee under Section 2.1; and/or
(b) designate a new Board Designee for election to a Board
seat for which such Designator or Designators are entitled to designate the
Board Designee under Section 2.1 (whether to replace a prior Board Designee or
to fill a vacancy in such Board seat);
provided that such removal and/or designation of a Board Designee is approved in
a writing signed by a majority of the Designators who are entitled to designate
such Board Designee under Section 2.1, and provided further, that such
designation is in accordance with Section 2.1, in
-6-
7
which case such election to remove a Board Designee and/or elect a new Board
Designee will be binding on all such Designators. In the event of such a removal
and/or designation of a Board Designee under this Section 2.3, the Investors
shall vote their shares of the Company's capital stock as provided in Section
2.1 so as to cause: (a) the removal from the Board of the Board Designee or
Designees so designated for removal by the appropriate Designators or
Designators in accordance with the Company's Articles of Incorporation and
Bylaws; and (b) the election to the Board of any new Board Designee or Designees
so designated for election to the Board by the appropriate Designator or
Designators in accordance with the Company's Articles of Incorporation and
Bylaws.
2.4 NOTICE: CUMULATIVE VOTING. The Company shall promptly give each
of the Investors written notice of any change in the composition of the
membership of the Board and of any proposal by a Designator or Designators to
remove or elect a new Board Designee as provided in Section 2.3. In any election
of any member of the Board pursuant to this Section 2, the Investors shall vote
their shares of the Company's capital stock in accordance with the Company's
Articles of Incorporation and Bylaws in a manner sufficient to elect to the
Board the individuals to be elected thereto as provided in this Section 2,
utilizing cumulative voting (if and to the extent that cumulative voting is
permitted by applicable law, the Company's Articles of Incorporation and
Bylaws), as may be necessary to do so.
2.5 OTHER SECURITYHOLDERS. The Company shall use its best efforts to
cause each party who, after the Effective Date, acquires (i) any shares of
capital stock of the Company, (ii) any options, warrants or other rights to
acquire or purchase any shares of capital stock of the Company, (iii) any other
securities that are convertible, exchangeable or exercisable for shares of
capital stock of the Company or (iv) any securities that are convertible,
exchangeable or exercisable for shares of the capital stock of the Company, to
agree to vote any shares of the capital stock of the Company owned by such
person in accordance with the terms of this Section 2.
2.6 LEGEND. So long as an Investor's obligations under Section 2 of
this Agreement remain in effect under the terms of this Agreement the legend set
forth below shall be imprinted by the Company on each of the stock certificates
representing shares of the capital stock of the Company owned by such Investor:
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO AGREEMENTS
AND RESTRICTIONS WITH REGARD TO THE VOTING OF SUCH SHARES AS
PROVIDED IN AN INVESTORS' RIGHTS AGREEMENT, A COPY OF WHICH IS ON
FILE IN THE OFFICE OF THE SECRETARY OF THE CORPORATION. SUCH
AGREEMENTS AND RESTRICTIONS ARE BINDING ON TRANSFEREES OF THESE
SHARES.
2.7 TERMINATION. The provisions of this Section 2 shall
automatically terminate and cease to have effect upon the earlier to occur of
(i) the first date that the authorized number of directors of the Company's
Board of Directors is not five (5) directors; or (ii) the date
-7-
8
on which the parties' rights and obligations under the provisions of this
Section 2 terminate in accordance with the provisions of Section 3 of this
Agreement.
3. TERM AND TERMINATION.
3.1 AUTOMATIC TERMINATION. This Agreement and the parties'
rights and obligations hereunder shall automatically terminate upon the
earlier to occur of:
(a) the date and time immediately prior to the closing of the
first firm commitment underwritten sale of Common Stock of the Company to the
public pursuant to a registration statement (other than a registration statement
relating solely to an employee benefit plan or a business combination or
reorganization) filed with, and declared effective by, the Securities and
Exchange Commission under the 1933 Act covering the offer and sale of the
Company's Common Stock to the public at an offering price of at least $1.50 per
share (such offering price being subject to proportional adjustment to reflect
subdivisions (stock splits), combinations (reverse stock splits), stock
dividends and similar transactions affecting the number of outstanding shares of
Common Stock) for aggregate gross proceeds to the Company (calculated before
deduction of underwriters' discounts and commissions) of at least $15,000,000;
(b) the closing of a Business Combination (as defined below).
As used herein, the term "BUSINESS COMBINATION" shall mean any of the following
transactions: (i) a consolidation or merger of the Company with or into any
other corporation or corporations that results in the holders of the Company's
outstanding capital stock immediately prior to such consolidation or merger
owning, immediately after such consolidation or merger, Stock (as defined below)
representing less than fifty percent (50%) of the voting power of all of the
then outstanding capital stock of the surviving corporation of such
consolidation or merger or of the parent (or ultimate parent) corporation of
such surviving corporation, (ii) a sale of all or substantially all the assets
of the Company; or (iii) any transaction or series of related transactions in
which shareholders of the Company sell or otherwise transfer to a single party
(or group of related parties) outstanding capital stock of the Company that
represents more than fifty percent (50%) of the voting power of all of the
Company's then outstanding stock. As used in this Section 3.1, the term "STOCK"
means either capital stock of the Company that was outstanding immediately prior
to a consolidation or merger referred to in clause (i) of the preceding
sentence, or that is issued to the shareholders of the Company in such
consolidation or merger in respect of their ownership of the capital stock of
the Company.
3.2 TERMINATION OF HNC RIGHTS AND OBLIGATIONS. Subject to the
earlier termination of this Agreement and HNC's rights and obligations hereunder
in accordance with Section 3.1, HNC shall cease to have any rights or
obligations under this Agreement upon the first date that HNC ceases to own at
least 1,000,000 shares of the Series A Preferred Stock of the Company (as such
number may be adjusted pursuant to Section 5.9 of this Agreement), and/or the
equivalent number of shares of the Company's Common Stock into which such number
of shares of Series A Preferred Stock is then convertible.
-8-
9
3.3 TERMINATION OF XXXXXXXX RIGHTS. Subject to the earlier
termination of this Agreement and Xxxxxxxx'x rights and obligations hereunder in
accordance with Section 3.1, Xxxxxxxx shall cease to have any rights whatsoever
under this Agreement upon the earlier to occur of: (a) the termination of
Xxxxxxxx'x employment with the Company for any reason; or (b) the first date on
which Xxxxxxxx ceases to own at least 500,000 shares of the Company's Common
Stock (as such may be adjusted pursuant to Section 5.9 of this Agreement)
purchased under the Xxxxxxxx Purchase Agreement. Upon such a termination of
Xxxxxxxx'x rights, Xxxxxxxx shall immediately cease to have any rights
whatsoever under this Agreement, but Xxxxxxxx'x obligations under this Agreement
shall nevertheless continue in full force and effect until this Agreement is
terminated pursuant to Section 3.1 or Section 3.5 or by the mutual written
agreement of HNC and Xxxxxxxx.
3.4 SPECIAL TERMINATION OF SECTION 2 ONLY. Notwithstanding anything
herein to the contrary, if the Company's Articles of Incorporation (which
currently provide that: the Company shall have five (5) authorized directors;
that the holders of the Company's Series A Preferred Stock, voting together as a
separate class, are entitled to elect four (4) of such five directors; and that
the holders of the Company's Common Stock, voting together as a separate class,
are entitled to elect one (1) of such directors) are amended so as to (i) change
the authorized number of the Company's directors from five (5) directors; and/or
(ii) change the number of directors to be elected by the holders of the Series A
Preferred Stock, voting together as a separate class, or the number of directors
to be elected by the holders of the Common Stock, voting together as a separate
class, then the parties' rights and obligations under Section 2 of this
Agreement will be terminated effective upon the effectiveness of such amendment
of the Company's Articles of Incorporation.
3.5 HNC OPTIONAL TERMINATION. Upon the termination of Xxxxxxxx'x
rights under this Agreement in accordance with Section 3.3, HNC may (at its sole
option and discretion) terminate this Agreement immediately by giving written
notice of termination to the Company and Xxxxxxxx.
4. ASSIGNMENT AND AMENDMENT.
4.1 ASSIGNMENT. Neither HNC nor Xxxxxxxx may assign or delegate any
of their rights or obligations under this Agreement without the written consent
of all parties hereto; provided, however, that HNC may assign and delegate all
its rights and obligations under this Agreement (whether by operation of law or
otherwise) to any corporation or other entity in connection with an HNC Business
Combination (as defined below). As used herein the term "HNC BUSINESS
COMBINATION" means (i) a consolidation or merger of HNC with or into any
corporation or corporations, (ii) a sale of all or substantially all the assets
of HNC; or (iii) any transaction or series of related transactions in which
shareholders of HNC sell or otherwise transfer to a single party or group of
related parties outstanding stock of HNC that represents more than fifty percent
(50%) of the voting power of all HNC's then outstanding stock.
4.2 AMENDMENT. Any provision of this Agreement may be amended and
the observance thereof may be waived (either generally or in a particular
instance and either
-9-
10
retroactively or prospectively), only with the written consent of the Company,
HNC and Xxxxxxxx (and/or any of their permitted successors or assigns);
provided, however, that at such time as a party ceases to have any rights under
this Agreement in accordance with Section 3 of this Agreement, then this
Agreement may be amended without the consent of such party so long as such
amendment does not adversely change or increase such party's remaining
obligations under this Agreement. Any amendment or waiver effected in accordance
with this Section 4.2 shall be binding upon the Company, each Investor, and each
permitted successor or assignee of such Investor.
5. GENERAL PROVISIONS.
5.1 NOTICES. Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered or if deposited in the U.S. mail by registered or
certified mail, return receipt requested, postage prepaid, as follows:
(a) if to an Investor, at such Investor's respective
address set forth beneath its signature hereto; and
(b) if to the Company, at 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxxxxxx 00000.
Any party hereto (and such party's permitted assigns) may by notice so given
change its address for future notices hereunder. Notice shall conclusively be
deemed to have been given when personally delivered or when deposited in the
mail in the manner set forth above.
5.2 ENTIRE AGREEMENT. This Agreement constitutes and contains the
entire agreement and understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior negotiations, correspondence,
agreements, understandings, duties or obligations between the parties respecting
the subject matter hereof.
5.3 GOVERNING LAW. This Agreement shall be governed by and construed
exclusively in accordance with the internal laws of the State of California as
applied to agreements among California residents entered into and to be
performed entirely within California, excluding that body of law relating to
conflict of laws and choice of law.
5.4 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, then such provision(s) shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
5.5 THIRD PARTIES. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.
-10-
11
5.6 SUCCESSORS AND ASSIGNS. Subject to the provisions of Section
2.1, the provisions of this Agreement shall inure to the benefit of, and shall
be binding upon, the successors and permitted assigns of the parties hereto.
5.7 CAPTIONS; COUNTERPARTS. The captions to sections of this
Agreement have been inserted for identification and reference purposes only and
shall not be used to construe or interpret this Agreement. This Agreement may be
executed in counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
5.8 COSTS AND ATTORNEYS' FEES. In the event that any action, suit or
other proceeding is instituted concerning or arising out of this Agreement or
any transaction contemplated hereunder, the prevailing party shall recover all
of such party's costs and attorneys' fees incurred in each such action, suit or
other proceeding, including any and all appeals or petitions therefrom.
5.9 ADJUSTMENTS FOR STOCK SPLITS, ETC. Wherever in this Agreement
there is a reference to a specific number of shares of Common Stock or Preferred
Stock of the Company of any class or series, then, upon the occurrence of any
subdivision, combination or stock dividend of such class or series of stock, the
specific number of shares so referenced in this Agreement shall automatically be
proportionally adjusted to reflect the affect on the outstanding shares of such
class or series of stock by such subdivision, combination or stock dividend.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
APTEX SOFTWARE INC.: INVESTORS:
HNC SOFTWARE INC.
By: By:
--------------------------- ------------------------------
Title: Title:
--------------------------- ------------------------------
Address: 0000 Xxxxxxxx Xxxx, Xxxxx 000 Address: 0000 Xxxxxxxxxxx Xxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000 Xxx Xxxxx, Xxxxxxxxxx 00000
XXXXXXXX
--------------------------
Xxxxxxx X. Xxxxxxxx
Address: 0000 Xxxxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
-11-
12
[SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT]
-12-
