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EXHIBIT 4.02
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of March 17, 2000 (the "EFFECTIVE Date") by and between HNC
SOFTWARE INC., a Delaware corporation ("HNC"), on the one hand, and the
undersigned persons and entities listed on Exhibit A hereto (collectively, the
"SECURITY HOLDERS" and each individually, a "SECURITY HOLDER") who have executed
and delivered to HNC a counterpart signature page to this Agreement. The
Security Holders were, immediately prior to the Effective Time of the Merger (as
defined below) all of the stockholders and warrant holders of The Center for
Adaptive Systems Applications, Inc., a Delaware corporation ("CASA").
Notwithstanding the fact that a Security Holder's name may be listed in Exhibit
A hereto, no Security Holder will be a party to this Agreement, nor have any
rights hereunder, unless and until such Security Holder executes and delivers to
HNC a counterpart signature page to this Agreement.
R E C I T A L S
A. CASA, HNC and CASA Merger Corp., a Delaware corporation that is a
wholly-owned subsidiary of HNC ("SUB"), have entered into an Agreement and Plan
of Reorganization dated as of February 11, 2000, as amended by Amendment No. 1
thereto dated as of March 1, 2000 (the "PLAN"). Pursuant to the Plan, Sub is to
be merged with and into CASA in a statutory merger (the "MERGER"), with CASA to
be the surviving corporation of the Merger and thus to become a wholly-owned
subsidiary of HNC. The date on which the Merger becomes effective shall be the
Effective Date of this Agreement.
B. As a condition precedent to the consummation of the Merger, the Plan
provides that if shares of HNC Common Stock and HNC Warrants are issued in the
Merger pursuant to a private placement as set forth in Section 2.10.1 of the
Plan, then pursuant to Section 2.10.3 of the Plan the Security Holders who
execute and deliver counterpart signature pages to this Agreement to HNC shall
be granted certain Form S-3 registration rights with respect to the shares of
HNC Common Stock that are issued to them in connection with the Merger pursuant
to Section 2.1.2 of the Plan, and the shares of HNC Common Stock that are
issuable upon the exercise of HNC Warrants that are issued to them in connection
with the Merger pursuant to Section 2.5 of the Plan, all subject to the terms
and conditions of this Agreement.
NOW, THEREFORE, in consideration of the facts stated in the foregoing
recitals and the mutual promises hereinafter set forth, the parties hereto agree
as follows:
1. REGISTRATION RIGHTS
1.1 CERTAIN DEFINITIONS. For purposes of this Agreement:
(a) Securities Act. The term "SECURITIES ACT" means the U.S.
Securities Act of 1933, as amended, or any successor law.
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(b) Exchange Act. The term "EXCHANGE ACT" means the U.S.
Securities Exchange Act of 1934, as amended, or any successor law.
(c) Registration. The terms "REGISTER," "REGISTERED," and
"REGISTRATION" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act, and the
declaration or ordering of effectiveness of such registration statement.
(d) Registrable Securities. The term "REGISTRABLE SECURITIES"
means: (i) the shares of HNC Common Stock (other than Escrow Shares) that are
issued to the Security Holders in the Merger pursuant to Section 2.1.2 of the
Plan upon the conversion in the Merger of the outstanding shares of CASA Common
Stock that are owned and held by Security Holders immediately prior to the
Effective Time; (ii) the shares of HNC Common Stock that are issued or issuable
to Security Holders upon the exercise of any HNC Warrants that are issued to
Security Holders in the Merger pursuant to Section 2.5 of the Plan upon the
conversion in the Merger of CASA Warrants that are outstanding and owned and
held by Security Holders immediately prior to the Effective Time; and (iii) any
shares of HNC Common Stock that may be issued as a dividend or other
distribution (including without limitation shares of HNC Common Stock issued in
a subdivision and split of HNC's outstanding Common Stock) with respect to, or
in exchange for, or in replacement of, shares of HNC Common Stock described in
clause (i) or clause (ii) of this Section 1.1(d) or in this clause (iii);
provided, however, that notwithstanding the foregoing, the term "Registrable
Securities" shall not include any such shares described in clauses (i), (ii)
and/or (iii) above that are: (v) Escrow Shares; (w) registered under the
Securities Act other than pursuant to a registration statement filed pursuant to
this Agreement; (x) sold by a person in a transaction in which rights under this
Agreement with respect to such shares are not assigned in accordance with the
terms of this Agreement; (y) sold pursuant to a registration statement filed
pursuant to this Agreement; or (z) sold pursuant to Rule 144 promulgated under
the Securities Act or otherwise sold to the public. Only shares of HNC Common
Stock shall be Registrable Securities. Except as provided in clause (iii) of the
first sentence of this Section 1.1(d), without limitation, the term "Registrable
Securities" does not include any shares of HNC Common Stock that were not issued
in connection with the Merger.
(e) Holder. The term "HOLDER" means: (i) a Security Holder who
has executed and delivered to HNC a counterpart signature page to this Agreement
and is the original holder of any Registrable Securities; (ii) any assignee of
record of Registrable Securities that were originally held by a Security Holder
meeting the conditions described in clause (i) of this Section 1.1(e) and to
whom rights under this Agreement have been duly assigned in accordance with the
provisions of this Agreement.
(f) SEC. The term "SEC" or the term "COMMISSION" means the
U.S. Securities and Exchange Commission.
(g) Form S-3. The term "FORM S-3" means a registration
statement filed under Form S-3 under the Securities Act, as such is in effect on
the Effective Date, or any successor form of registration statement under the
Securities Act subsequently adopted by the
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SEC which permits inclusion or incorporation of a substantial amount of
information by reference to other documents filed by HNC with the SEC.
(h) Rule 415. The term "RULE 415" means Rule 415 promulgated
under the Securities Act, as such Rule may be amended from time to time, or any
similar or successor rule or regulation hereafter adopted by the SEC.
(i) Defined Terms from Plan. Capitalized terms used in this
Agreement but not defined in this Section 1 or elsewhere in this Agreement shall
have the same meanings given to such terms in the Plan.
1.2 FORM S-3 SHELF REGISTRATION.
(a) Filing and Registration Period. Subject to the terms and
conditions of this Agreement, as promptly as reasonably practicable following
the Effective Time of the Merger, and consistent with the requirements of
applicable law, HNC shall prepare and file with the SEC a registration statement
on Form S-3 for an offering to be made on a continuous basis pursuant to Rule
415 covering all of the then outstanding Registrable Securities (the "SHELF
REGISTRATION"). HNC shall use its diligent efforts to have such Shelf
Registration declared effective as soon as reasonably practicable after its
filing and to keep the Shelf Registration continuously effective under the
Securities Act for a continuous period of time (such period of time being
hereinafter called the "REGISTRATION PERIOD") commencing on the date the Shelf
Registration is declared effective under the Securities Act by the SEC (the
"DATE OF EFFECTIVENESS") and ending on the date that is the first (1st)
anniversary of the Effective Time of the Merger. HNC shall have no duty or
obligation to keep the Shelf Registration (or any Subsequent Registration, as
defined below) effective after the expiration of the Registration Period.
Accordingly, the Security Holders acknowledge that the Registrable Securities
will not be registered under the Securities Act (and that the Shelf Registration
will be cancelled and withdrawn) beginning one (1) year after the Effective Time
of the Merger.
(b) Limitations. Notwithstanding the provisions of Section
1.2(a) above, HNC shall not be obligated to effect any registration,
qualification or compliance of Registrable Securities pursuant to Section 1.2 of
this Agreement, and the Holders shall not be entitled to sell Registrable
Securities pursuant to any registration statement filed under Section 1.2 of
this Agreement, as applicable:
(i) if HNC ceases to be eligible to use Form S-3 for
such offering by the Holders; provided that HNC will use commercially reasonable
diligent efforts to continue its eligibility to use Form S-3 during the
Registration Period;
(ii) if Form S-3 does not then permit the
registration on such form of registration statement of an offering by the
Holders of the type contemplated by this Agreement;
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(iii) if HNC is acquired and its Common Stock ceases
to be publicly traded;
(iv) in any particular jurisdiction in which HNC
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance,
unless HNC is already subject to service of process in such jurisdiction;
(v) if the SEC refuses to declare such registration
effective due to the participation of any particular Holder in such registration
(unless such Holder withdraws all such Holder's Registrable Securities from such
registration statement); or
(vi) if the manner in which any Registrable
Securities are disposed of pursuant to the Shelf Registration (or Subsequent
Registration, as applicable) is not included within the plan of distribution set
forth in the prospectus for the Shelf Registration (or Subsequent Registration,
as applicable); provided that the plan of distribution in the Shelf Registration
(or Subsequent Registration as applicable) shall be in standard and customary
form for non-underwritten re-sale offerings pursuant to registration statements
on Form S-3.
(c) Subsequent Registration. If the Shelf Registration becomes
effective under the Securities Act, and the Shelf Registration or a Subsequent
Registration (as defined below) thereafter ceases to be effective for any reason
at any time during the Registration Period, then HNC shall use its diligent
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall, within thirty (30) days of such
cessation of effectiveness, file an amendment to the Shelf Registration seeking
to obtain the withdrawal of the order suspending the effectiveness thereof, or
file an additional "shelf" registration statement pursuant to Rule 415 covering
all of the then outstanding Registrable Securities (a "SUBSEQUENT
REGISTRATION"). If a Subsequent Registration is filed, HNC shall use its
diligent efforts to cause the Subsequent Registration to be declared effective
as soon as practicable after such filing and to keep such registration statement
continuously effective until the end of the Registration Period.
(d) Supplements and Amendments. Subject to the provisions of
Section 1.2(h) and Section 1.3, during the Registration Period HNC shall
supplement and amend the Shelf Registration if, as and when required by the
Securities Act, the rules and regulations promulgated thereunder or the rules,
regulations or instructions applicable to the registration form used by HNC for
such Shelf Registration.
(e) Timing and Manner of Sales. No sale of Registrable
Securities pursuant to a Shelf Registration or a Subsequent Registration under
this Section 1.2 may be made except during a "Permitted Window" (as defined in
Section 1.2(h) below). In addition, any sale of Registrable Securities pursuant
to a Shelf Registration or a Subsequent Registration under this Section 1.2 may
only be made in accordance with the method or methods of distribution of such
Registrable Securities that are described in the registration statement (which
methods of distribution shall be in standard and customary form for
non-underwritten re-sale offerings
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pursuant to registration statement on Form S-3) for the Shelf Registration (or
Subsequent Registration, as applicable) and permitted by such form of
registration statement, which methods of distribution will be specified by the
Holders in their Notice of Resale (as defined below). A Holder may also sell
Registrable Securities in a bona fide private offering if the selling Holder
provides HNC with a written opinion of counsel, satisfactory to counsel to HNC,
that such offer and sale is an exempt transaction under the Securities Act and
applicable state securities laws, complies with all requirements for such
exemption(s) and is not made with use of the prospectus for the Shelf
Registration (or Subsequent Registration, if applicable).
(f) No Underwritings. No sale of Registrable Securities under
any Shelf Registration (or Subsequent Registration) effected pursuant to this
Section 1.2 may be effected pursuant to any underwritten offering without HNC's
prior written consent, which may be withheld in HNC's sole and absolute
discretion.
(g) Notice of Resale. Before any Holder may make any sale,
transfer or other disposition of any Registrable Securities under the Shelf
Registration (or a Subsequent Registration) during the Registration Period, a
Holder or Holders who own at least a one-third (1/3) of the Registrable
Securities then outstanding must first give written notice to HNC (a "NOTICE OF
RESALE") of such Holder's or Holders' present intention to so sell, transfer or
otherwise dispose of some or all of such Holder's or Holders' Registrable
Securities, and the number of Registrable Securities such Holder or Holders
propose(s) to so sell, transfer or otherwise dispose of. In addition, a Notice
of Resale shall contain the information required to be included therein under
Section 1.2(h). No Notice of Resale may be given to HNC earlier than sixty (60)
days after the last date on which a Notice of Resale was given to HNC.
(h) Permitted Window; Sale Procedures.
(i) A "PERMITTED WINDOW" is a period of thirty (30)
consecutive calendar days commencing upon HNC's written notification to the
Security Holders in response to a Notice of Resale that the prospectus contained
in the Form S-3 registration statement filed pursuant to Section 1.2 of this
Agreement is available to be used for resales of Registrable Securities pursuant
to the Shelf Registration (or a Subsequent Registration, as applicable).
(ii) Before a Holder can make a sale of any
Registrable Securities pursuant to the Shelf Registration (or a Subsequent
Registration), and in order to cause a Permitted Window to commence, such Holder
must first give HNC a Notice of Resale indicating such Holder's intention to
sell Registrable Securities pursuant to the Shelf Registration (or Subsequent
Registration, as applicable) and such Holder's intended plan of distribution of
such Registrable Securities (which must conform to the plan of distribution
contained in the prospectus for the Shelf Registration (or Subsequent
Registration, as applicable)).
(iii) Upon receipt of such Notice of Resale (unless a
Section 1.3 Certificate of HNC is delivered as provided in Section 1.3), HNC
will give written notice to all Holders as soon as practicable, but in no event
more than four (4) business days after HNC's
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receipt of such Notice of Resale that either: (A) the prospectus contained in
the registration statement for the Shelf Registration (or Subsequent
Registration, if applicable) is current (it being acknowledged that it may be
necessary for HNC during this period to supplement the prospectus or make an
appropriate filing under the Exchange Act so as to cause the prospectus to
become current) and that the Permitted Window will commence on the date of such
notice by HNC; or (B) HNC is required under the Securities Act and the
regulations thereunder to amend the registration statement for the Shelf
Registration (or Subsequent Registration, as applicable) in order to cause the
prospectus to be current. In the event that HNC determines that an amendment to
the registration statement is necessary as provided above, it will file and
cause such amendment to become effective as soon as practicable; whereupon it
will notify the Holders that the Permitted Window will then commence.
(iv) Subject to the provisions of clause (vi) and
Section 1.3(b) below, there will be no more than a maximum of three (3)
Permitted Windows during the Registration Period and (unless HNC consents
thereto in a writing signed by HNC) there will be at least a thirty (30) day
interval between the end of any Permitted Window and the commencement of the
next Permitted Window. HNC shall not be obligated to keep the registration
statement for the Shelf Registration (or any Subsequent Registration) current
during any period other than a Permitted Window.
(v) If, pursuant to Section 1.3(a), HNC postpones a
Permitted Window that has not commenced, and the Holders withdraw their Notice
of Resale, then such withdrawal shall not count as a Permitted Window.
(vi) If pursuant to Section 1.3(b), HNC terminates a
Permitted Window after such Permitted Window has already commenced, then the
Holders shall be entitled to an additional Permitted Window for the number of
days as provided in Section 1.3(b).
(vii) The Holders may elect to withdraw a request for
registration pursuant to a Notice of Resale; provided however, that if HNC has
commenced preparation of any supplement or amendment to the registration
statement or any part thereof in response to such Notice of Resale prior to
receiving written notice from the Holders' of the withdrawal of their request
for registration, then the Holders who originally gave HNC such Notice of Resale
will promptly reimburse HNC for its actual costs and expenses incurred in
preparing and/or filing such supplement and/or amendment.
(i) Trading Window Compliance. The Holders acknowledge that
HNC maintains an Xxxxxxx Xxxxxxx Compliance Program and an Xxxxxxx Xxxxxxx
Policy, as such may be amended (the "HNC TRADING POLICY") and that the HNC
Trading Policy requires that those directors, officers, employees and other
persons whom HNC determines to be "Insiders" or "Access Personnel" or otherwise
subject to the "trading window" and pre-clearance requirements of the HNC
Trading Policy (and members of their immediate families and households) are
permitted to effect trades in HNC securities: (i) only during those specified
time periods ("TRADING WINDOWS") in which such persons are permitted to make
sales, purchases or other
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trades in HNC's securities under the "trading window" provisions of the HNC
Trading Policy; and (ii) only after pre-clearance of such sales, purchases or
other trades with HNC's Xxxxxxx Xxxxxxx Compliance Officer. If a Holder who is
an employee of HNC or an affiliate of HNC is or becomes subject to the "trading
window" and/or "pre-clearance" provisions of the HNC Trading Policy described
above, then, notwithstanding anything herein to the contrary, such Holder may
sell, transfer and dispose of Registrable Securities only during those trading
windows during which such HNC "Insiders" or "Access Personnel" are permitted to
effect trades in HNC stock under the HNC Trading Policy and only after
pre-clearing such trades with HNC's Xxxxxxx Xxxxxxx Compliance Officer as
provided in the HNC Trading Policy.
1.3 POSTPONEMENT OR TERMINATION OF PERMITTED WINDOWS. If following
HNC's receipt of a Notice of Resale pursuant to Section 1.2(g), HNC shall give
to the Holders, a certificate (a "SECTION 1.3 CERTIFICATE") signed by the Chief
Executive Officer or the Chief Financial Officer of HNC stating that, in the
good faith judgment of the Board of Directors of HNC, it would be seriously
detrimental to HNC and its security holders for the Permitted Window to be in
effect at such time (due, for example, and without limitation, to the existence
of a material development or potential material development involving HNC which
HNC would be obligated to disclose in the prospectus contained in the Shelf
Registration (or Subsequent Registration, as applicable), which disclosure
would, in the good faith judgment of the Board of Directors of HNC, be premature
or otherwise inadvisable at such time or would have a material adverse affect
upon HNC and its security holders), then:
(a) if a Permitted Window has not yet commenced as a result of
such Notice of Resale, HNC will have the right to postpone the commencement of
any Permitted Window for a period of up to forty-five (45) days after HNC's
receipt of such Notice of Resale from the Holder or Holders, and if HNC so
postpones a Permitted Window, and the Holders withdraw their Notice of Resale,
such withdrawal shall not count as a Permitted Window; and
(b) if a Permitted Window has already commenced as a result of
such Notice of Resale, HNC will have the right to terminate such Permitted
Window, in which event (i) no new Notice of Resale may be given to HNC without
HNC's written consent for a period of forty-five (45) days after HNC's receipt
of such Notice of Resale from the Holder or Holders, and (ii) the Holders will
be granted (for each Permitted Window terminated under this Section 1.3(b)) an
additional Permitted Window for that number of days that is equal to thirty (30)
days minus the number of days that the terminated Permitted Window was in effect
before HNC gave a Section 1.3 Certificate notifying the Holders of termination
of such Permitted Window pursuant to this Section 1.3(b).
HNC may not exercise its rights of postponement or of
termination of a Permitted Window more than an aggregate total of four (4) times
during the Registration Period. All Holders shall be bound by HNC's postponement
or termination of a Permitted Window.
1.4 SHARES OTHERWISE ELIGIBLE FOR RESALE. Notwithstanding anything
herein to the contrary, HNC shall not be obligated to effect or continue to keep
effective any such registration,
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registration statement, qualification or compliance with respect to the
Registrable Securities held by any particular Holder:
(a) if HNC or its legal counsel shall have received a
"no-action" letter or similar written confirmation from the SEC that all the
Registrable Securities then held by such Holder may be resold by such Holder
within a three (3) month period without registration under the Securities Act
pursuant to the provisions of Rule 144 promulgated under the Securities Act (or
successor provisions), or otherwise;
(b) if legal counsel to HNC shall deliver a written opinion to
HNC, its transfer agent and the Holders, in form and substance reasonably
acceptable to HNC, to the effect that all the Registrable Securities then held
by such Holder may be resold by such Holder within a three (3) month period
without registration under the Securities Act pursuant to the provisions of Rule
144 promulgated under the Securities Act, or otherwise; or
(c) after expiration or termination of the Registration
Period.
1.5 EXPENSES. HNC shall pay all expenses incurred in connection with
any registration effected by HNC pursuant to this Agreement (excluding brokers'
discounts and commissions), including without limitation all filing,
registration and qualification, printers', legal and accounting fees.
1.6 OBLIGATIONS OF HNC. Subject to Sections 1.2, 1.3 and 1.4 above,
when required to effect the registration of any Registrable Securities under the
terms of this Agreement, HNC will, as expeditiously as reasonably possible:
(a) furnish to the Holders such number of copies of the
prospectus for the Shelf Registration (or Subsequent Registration, as
applicable), including a preliminary prospectus (and amendments or supplements
thereto), in conformity with the requirements of the Securities Act, and such
other documents as they may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by them;
(b) use its diligent efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as will be reasonably requested by the
Holders; provided that HNC will not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such state or jurisdiction unless HNC is already so
qualified or subject to service of process, respectively, in such jurisdiction;
and
(c) promptly notify each Holder of Registrable Securities
covered by such registration statement, at any time during a Permitted Window
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event known to HNC's Chief Executive
Officer as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a
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material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing, and the
Holders shall hold all such information in strict confidence until it is made
publicly available;
(d) cause all such Registrable Securities to be listed on each
securities exchange or National Association of Securities Dealers, Inc.
Automated Quotation System on which HNC's Common Stock is then listed;
(e) for so long as the Shelf Registration (or Subsequent
Registration, as applicable) remains effective, promptly prepare, file and
furnish to the Holders a reasonable number of copies of any supplement to or an
amendment of such prospectus prepared by HNC and filed with the SEC as may be
necessary so that, as thereafter delivered to the purchasers of the Registrable
Securities, such prospectus shall not, during any Permitted Window, include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing;
(f) notify the Holders promptly after HNC shall receive notice
thereof, of the date and time on which the Shelf Registration (or Subsequent
Registration, as applicable) and each post-effective amendment thereto has
become effective or a supplement to any prospectus forming a part of such Shelf
Registration (or Subsequent Registration, as applicable) has been filed;
(g) notify the Holders promptly of any request by the SEC for
the amending or supplementing of the Shelf Registration (or Subsequent
Registration, as applicable) or the prospectus contained therein or for any
material additional information; and
(h) advise the Holders promptly after it shall receive notice
or obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of the Shelf Registration (or Subsequent
Registration, as applicable) or the initiation or threatening of any proceeding
for that purpose and promptly use commercially reasonable efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such stop order should
be issued.
1.7 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of HNC to take any action pursuant to this Agreement that the
selling Holders will furnish to HNC such information regarding themselves, the
Registrable Securities held by them, and the intended method of disposition and
plan of distribution of such Registrable Securities as shall be required to
timely effect the registration of their Registrable Securities.
1.8 DELAY OF REGISTRATION. No Holder will have any right to obtain or
seek an injunction restraining or otherwise delaying any registration that is
the subject of this Agreement as the result of any controversy that might arise
with respect to the interpretation or implementation of this Agreement.
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1.9 INDEMNIFICATION.
(a) By HNC. To the extent permitted by law, HNC will
indemnify, defend and hold harmless each Holder against any losses, claims,
damages, or liabilities (joint or several) to which such Holder may become
subject under the Securities Act, the Exchange Act or other U.S. federal or
state law, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively, a "VIOLATION"):
(i) any untrue statement or alleged untrue statement
of a material fact contained in a registration statement filed by HNC pursuant
to this Agreement pursuant to which Registrable Securities are sold, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto;
(ii) the omission or alleged omission to state in
such registration statement, preliminary prospectus or final prospectus or any
amendments or supplements thereto, a material fact required to be stated
therein, or necessary to make the statements therein not misleading; or
(iii) any violation or alleged violation by HNC of
the Securities Act, the Exchange Act, any U.S. federal or state securities law
or any rule or regulation promulgated under the Securities Act, the Exchange Act
or any U.S. federal or state securities law in connection with the offering of
Registrable Securities covered by such registration statement;
provided however, that the indemnity agreement contained in this subsection
1.9(a) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the written
consent of HNC (which consent shall not be unreasonably withheld), nor shall HNC
be liable in any such case for any such loss, claim, damage, liability or action
to the extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by such Holder.
(b) By Selling Holders. To the extent permitted by law, each
selling Holder will indemnify and hold harmless HNC, each of its directors, each
of its officers who have signed the registration statement, each person, if any,
who controls HNC within the meaning of the Securities Act, any underwriter and
any other Holder selling securities under such registration statement, against
any losses, claims, damages or liabilities (joint or several) to which HNC or
any such director, officer, controlling person, underwriter or other such Holder
may become subject under the Securities Act, the Exchange Act or other federal
or state law, insofar as such losses, claims, damages or liabilities (or actions
in respect thereto) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by such Holder
expressly for use in connection with such registration; and each such Holder
will indemnify and reimburse HNC or any such director, officer, controlling
person, underwriter or other Holder for any
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reasonable attorneys' fees and other expenses reasonably incurred by HNC or any
such director, officer, controlling person, underwriter or other Holder in
connection with investigating or defending any such loss, claim, damage,
liability or action, as incurred; provided, however, that the indemnity
agreement contained in this subsection 1.9(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the indemnifying Holder, which
consent shall not be unreasonably withheld; and provided further that the total
amounts payable in indemnity by a Holder under this subsection 1.9(b) in respect
of any Violation shall not exceed the net proceeds received by such Holder in
the registered offering out of which such Violation arises.
(c) Notice. Promptly after receipt by an indemnified party
under this Section 1.9 of notice of the commencement of any action (including
any governmental action) against such indemnified party, such indemnified party
will, if a claim for indemnification or contribution in respect thereof is to be
made against any indemnifying party under this Section 1.9, deliver to the
indemnifying party a written notice of the commencement thereof and, if the
indemnifying party is HNC, HNC shall have the right and obligation to control
the defense of such action, and if HNC fails to defend such action it shall
indemnify and reimburse the Selling Holders for any reasonable attorneys' fees
and other expenses reasonably incurred by them in connection with investigating
or defending such action; provided, however, that: (i) HNC shall also have the
right, at its option, to assume and control the defense of any action with
respect to which HNC or any person entitled to be indemnified by the Selling
Holders under Section 1.9(b) is entitled to indemnification from the Selling
Holders; (ii) the indemnified party or parties shall have the right to
participate at its own expense in the defense of such action and (but only to
the extent agreed in writing with HNC and any other indemnifying party similarly
noticed) to assume the defense thereof with counsel mutually satisfactory to the
parties; and (iii) an indemnified party shall have the right to retain its own
counsel, with the fees and expenses of such counsel to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to an actual or
potential conflict of interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure of an
indemnified party to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if materially
prejudicial to the ability of the indemnifying party to defend such action,
shall relieve such indemnifying party of any liability to the indemnified party
under this Section 1.9, but the omission so to deliver written notice to the
indemnifying party will not relieve the indemnifying party of any liability that
it may have to any indemnified party otherwise than under this Section 1.9.
(d) Defect Eliminated in Final Prospectus. The foregoing
indemnity agreements of HNC and the Holders are subject to the condition that,
insofar as they relate to any Violation made in a preliminary prospectus but
eliminated or remedied in the amended or supplemented prospectus on file with
the SEC and effective at the time the sale of Registrable Securities under such
registration statement occurs (the "AMENDED PROSPECTUS"), such indemnity
agreement shall not inure to the benefit of any person if a copy of the Amended
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Prospectus was furnished to the indemnified party and was not furnished to the
person asserting the loss, liability, claim or damage in the action giving rise
to indemnity claims under this Section 1.9, at or prior to the time such action
is required by the Securities Act.
(e) Survival. The obligations of HNC and Holders under this
Section 1.9 shall survive the completion of any offering of Registrable
Securities in a registration statement pursuant to this Agreement, and
otherwise.
1.10 DURATION AND TERMINATION OF HNC'S OBLIGATIONS. HNC will have no
obligations pursuant to Section 1.2 of this Agreement with respect to any Notice
of Resale or other request or requests for registration (or inclusion in a
registration) made by any Holder or to maintain or continue to keep effective
any registration or registration statement pursuant hereto: (a) after the
expiration or termination of the Registration Period; (b) if HNC has already
effected Permitted Windows pursuant to this Agreement for an aggregate period of
ninety (90) days; (c) with respect to a particular Holder if, in the opinion of
counsel to HNC, all such Registrable Securities proposed to be sold by such
Holder may be sold in a three (3) month period without registration under the
Securities Act pursuant to Rule 144 promulgated under the Securities Act or
otherwise; or (d) if all Registrable Securities have been registered and sold
pursuant to a registration effected pursuant to this Agreement and/or have been
transferred in transactions in which registration rights hereunder have not been
assigned in accordance with this Agreement.
1.11 ACKNOWLEDGMENT OF OTHER AGREEMENTS. The Holders acknowledge that
certain security holders hold "piggyback registration rights" that may allow
them to participate in a registration effected pursuant to this Agreement. If
after the date of this Agreement and prior to expiration of the Registration
Period, HNC enters into an agreement pursuant to which HNC grants registration
rights to a third party or parties that may be exercised during the Registration
Period, then, within thirty (30) days after it enters into such agreement, HNC
will notify the Holders of the grant of such registration rights and their
general terms.
2. ASSIGNMENT
Notwithstanding anything herein to the contrary, the rights of a Holder
under this Agreement may be assigned only with HNC's express prior written
consent, which may be withheld in HNC's sole discretion and only to a person who
executes and delivers to HNC a writing reasonably satisfactory in form and
substance to HNC in which such person agrees to be bound by all the obligations
of the Holders under this Agreement; provided, however, that the rights of a
Holder under this Agreement may be assigned without HNC's express prior written
consent: (a) to a Permitted Assignee (as defined below); or (b) (if applicable)
by will or by the laws of intestacy, descent or distribution, provided that, in
each case, the assignee executes and delivers to HNC a writing reasonably
satisfactory in form and substance to HNC in which such assignee agrees to be
bound by all the obligations of the Holders under this Agreement. Any attempt to
assign any rights of a Holder under this Agreement without HNC's express prior
written consent in a situation in which such consent is required by this Section
shall be null and void and without effect. Subject to the foregoing
restrictions, all rights, covenants and
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agreements in this Agreement by or on behalf of the parties hereto will bind and
inure to the benefit of the respective permitted successors and assigns of the
parties hereto. Each of the following parties are "PERMITTED ASSIGNEES" for
purposes of this Section 2: (a) a trust whose beneficiaries consist solely of a
Holder and such Holder's immediate family; (b) the personal representative (such
as an executor of a Holder's will), custodian or conservator of a Holder, in the
case of the death, bankruptcy or adjudication of incompetency of that Holder; or
(c) immediate family members of a Holder.
3. GENERAL PROVISIONS
3.1 NOTICES. Unless otherwise provided herein, all notices,
instructions and other communications required or permitted to be given
hereunder or necessary or convenient in connection herewith must be in writing
and shall be deemed to have been given (a) when personally served or when
delivered by facsimile (to the facsimile number of the person to whom the notice
is given), (b) the first business day following the date of deposit with a
nationally recognized overnight courier service or (c) on the earlier of actual
receipt or the third (3rd) business day following the date on which the notice
is deposited in the United States mail, via first class certified or registered
mail, postage prepaid, addressed as follows:
(i) if to HNC, at 0000 Xxxxxxxxxxx Xxxxx Xxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000, Attention: President; Fax Number: (000) 000-0000; and
(ii) if to a Holder, at such Holder's respective address or
fax number as set forth on Exhibit A hereto.
Any party hereto (and such party's permitted assigns) may by
notice so given change its address and fax number for future notices hereunder.
3.2 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 with
respect to the subject matter hereof.
3.3 AMENDMENT OF RIGHTS. Any provision of this Agreement may be amended
and the observance thereof may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of HNC and Holders who have executed this Agreement and own a majority
of all the Registrable Securities then outstanding. Any amendment or waiver
effected in accordance with this Section 3.3 shall be binding upon each Holder,
each permitted successor or assignee of each Holder and HNC.
3.4 GOVERNING LAW. This Agreement will 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.
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3.5 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, then such provision(s) will be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and will be enforceable in
accordance with its terms.
3.6 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement, express or
implied, is intended to confer upon any person, other than the parties hereto
and their permitted successors and assigns, any rights or remedies under or by
reason of this Agreement.
3.7 CAPTIONS. The headings and captions to sections of this Agreement
have been inserted for identification and reference purposes only and will not
be used to construe or interpret this Agreement.
3.8 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which will be deemed an original, but all of which together will constitute
one and the same instrument.
3.9 EFFECTIVENESS OF AGREEMENT. Regardless of when signed, this
Agreement will not become effective or binding unless and until the Effective
Time of the Merger.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the Effective Date.
HNC SOFTWARE INC. SECURITY HOLDERS
BY: /S/ Xxxxxxx X. Xxxxxxxx NAME: *
------------------------------- -----------------------------
NAME: Xxxxxxx X. Xxxxxxxx BY:
----------------------------- -------------------------------
TITLE: Chief Financial Officer TITLE: __________________________
----------------------------
* The following CASA stockholders:
Xxxxxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxxx Xxxxx
Xxxxx and Vardina Wind
Xxxxxx X. Xxxxxxxxxxxx
Xxxxx Xxxxx
C. Xxxx Xxxxxx
PS Capital, LLC
Xxxxxx Xx
Xxxx Xxxxxxxxx
Xxxxx Xxxxxxxxxx
Csilla and Xxxx Xxxxxx
Xxxx and Xxxxxxx Xxxxxx
Xxxxxx Xxxx
Xxxx Xxxxxxx
Xxxxxxxxx Xx
Xxxxx Xxxx
Xxxxxx Xxxxx
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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