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EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
May 28, 1999
To each of the persons named on Schedule I hereto:
Dear Sirs:
This will confirm that in consideration of the consummation of
the merger of BI-HML Acquisition Corp. ("BI-HML") a wholly owned subsidiary of
The BISYS Group, Inc. (the "Company"), with and into HML, Inc. ("HML") pursuant
to the Agreement and Plan of Merger dated as of May 28, 1999 among the Company,
BI-HML, HML and the other persons named therein (the "Merger Agreement"), in
which an aggregate number of shares of common stock, $.02 par value, of the
Company (the "Shares") set forth on Schedule I hereto opposite your name will be
issuable to you upon conversion of shares of common stock of, or other equity
interests in, HML, the Company hereby covenants and agrees with each of you, as
follows:
1. Certain Definitions. As used herein, the following terms
shall have the following respective meanings:
"Commission" shall mean the United States Securities
and Exchange Commission, or any other federal agency at the
time administering the Securities Act (hereinafter defined).
"Common Stock" shall mean the common stock, $.02 par
value, of the Company.
"Distribution Period" shall mean the period
commencing on the effective date of the registration statement
referred to in Sections 2 and 3 hereof and ending on the
earlier to occur of (i) the sale of all of the Registerable
Stock (hereinafter defined) covered by such registration
statement or (ii) the first anniversary of the Effective Time.
"Effective Time" shall mean the Effective Time of the
Merger, as defined in the Merger Agreement.
"Exchange Act" shall mean the Securities Exchange Act
of 1934 or any similar federal statute, and the rules and
regulations of the Commission thereunder, all as the same
shall be in effect at the time.
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"Merger" shall mean the merger of BI-HML with and
into HML pursuant to the Merger Agreement.
"Registerable Stock" shall mean shares of Common
Stock issued to you in the Merger and owned by you or a person
or entity specified in clause (ii), (iii) or (iv) of Section
8(a) of this Agreement, provided that such shares of Common
Stock shall cease to be Registerable Stock when sold pursuant
to a registration statement filed pursuant to the Agreement.
"Securities Act" shall mean the Securities Act of
1933, as amended, or any similar federal statute, and the
rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
2. Registration of Registerable Stock.
Promptly after the Effective Time, the Company shall use its
reasonable best efforts to register under the Securities Act for public resale
by the holders of shares of Registerable Stock the shares of Registerable Stock
held by them. The Company shall not be obligated to effect registration of
Registerable Stock pursuant to this Section 2 on more than one occasion.
3. Registration Procedures. The Company will, as expeditiously
as is practicable after the Effective Time:
(a) prepare, submit to you and to one counsel for the
sellers of Registerable Stock, for a reasonable opportunity to
review, and thereafter file with the Commission as soon as
practicable, a registration statement with respect to such
Registerable Stock (which shall be on Form S-3 if the Company
is then eligible to use such form and otherwise on Form S-1 or
such other form of general applicability acceptable to the
Company), and shall use its reasonable best efforts to cause
such registration statement to become and remain continuously
effective during the Distribution Period.
(b) 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 continuously
effective during the Distribution Period.
(c) furnish to each seller of Registerable Stock such
number of copies of the registration statement and the
prospectus included therein and any amendment or
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supplement thereto as such person may reasonably request in
order to facilitate the public sale of the Registerable Stock
covered by such registration statement;
(d) use its best efforts to register or qualify the
Registerable Stock covered by such registration statement
under the securities or blue sky laws of a reasonable number
of jurisdictions (provided that the Company will not be
required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to
qualify but for this paragraph (d), (ii) subject itself to
taxation in any such jurisdiction or (iii) consent to general
service of process in any jurisdiction);
(e) promptly notify each seller of Registerable Stock
(i) when such registration statement or any amendment or
supplement thereto or to the prospectus contained therein has
been filed, (ii) of any request by the Commission for
amendments or supplements to such registration statement or
prospectus or for additional information from such seller,
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of such registration statement or
the initiation of proceedings for that purpose, or (iv) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Registerable Stock for
sale in any jurisdiction or the initiation or threatening of
any proceeding for that purpose;
(f) promptly notify each seller of Registerable Stock
at any time when a prospectus relating thereto is required to
be delivered under the Securities Act, of the happening of any
event of which the Company is aware as a result of which the
prospectus contained in such registration statement, as then
in effect, includes an untrue statement of a material fact or
omits to state any 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 as promptly
as practicable thereafter prepare and file with the Commission
a supplement or amendment to such prospectus, such
registration statement or any document incorporated therein by
reference, or make such other filing, such that as thereafter
delivered to the purchasers of Registerable Stock the
prospectus will not contain an untrue statement of material
fact or omit to state any material fact necessary to make the
statements
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therein not misleading provided, however, in no event shall
the registration statement be unavailable (i) for any
continuous period of sixty (60) days or (ii) for an aggregate
of ninety (90) days or more, during the Distribution Period.
(g) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement.
In connection with each registration hereunder, each seller of
Registerable Stock shall furnish to the Company in writing such information with
respect to himself and the proposed distribution by him as shall be reasonably
necessary in order to assure compliance with federal and applicable state
securities laws, including, without limitation, such information as shall enable
the Company to prepare prospectus supplements as and when required to enable
pledgees or donees of such seller to sell shares of Registerable Stock under the
registration statement filed pursuant to Section 2 hereof.
4. Expenses. All expenses incurred by the Company in complying
with Sections 2 and 3 hereof, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees of the National Association
of Securities Dealers, Inc., transfer taxes and fees of transfer agents and
registrars, will be paid by the Company in connection with the registration
statement filed pursuant to Sections 2 and 3 hereof.
5. Indemnification. The Company will indemnify and hold
harmless each seller of Registerable Stock under the registration statement
filed pursuant to Sections 2 and 3 and each other person, if any, who controls
such seller within the meaning of the Securities Act, and each partner, director
or officer of such persons, against any losses, claims, damages or liabilities,
joint or several, to which such seller, partner, officer, director or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in the registration statement
filed pursuant to Sections 2 and 3 hereof, any prospectus contained therein, or
any amendment or supplement thereof, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under any of
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the same in connection with the offering covered by such registration statement,
and the Company will reimburse each such seller, partner, officer, director and
each such controlling person for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will not be
liable in any such case if and to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission so made in reliance upon and in
conformity with information furnished by such seller or any of its partners,
officers, directors or such controlling person in writing specifically for use
in such registration statement or prospectus.
Each seller of such Registerable Stock under the registration
statement filed pursuant to Sections 2 and 3 hereof, severally and not jointly,
will indemnify and hold harmless the Company and each person, if any, who
controls the Company within the meaning of the Securities Act, each officer of
the Company who signs the registration statement, each director of the Company,
and each person who controls any of the foregoing within the meaning of the
Securities Act, against all losses, claims, damages or liabilities, joint or
several, to which the Company or such officer or director or controlling person
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the registration statement filed pursuant to Sections
2 and 3 hereof, any prospectus contained therein, or any amendment or supplement
thereof, (ii) the omission or alleged omission to state therein 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 the Company of the
Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under any of the same in connection with the offering
covered by such registration statement, and each such seller will reimburse the
Company and each such officer, director and controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that such seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information furnished in
writing to the Company by such seller specifically for use in such registration
statement or prospectus. Notwithstanding the foregoing, (i) no seller shall be
liable for payments of amounts paid in settlement of any loss, claim, damage,
liability or action if such settlement is effected
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without the consent of such seller (which consent shall not be unreasonably
withheld), and (ii) in no event shall the liability of any seller of
Registerable Stock under this Section 5 in connection with any registration
exceed the proceeds received by such seller from the sale of shares of
Registerable Stock in such registration.
Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to any indemnified party other than under this Section 5. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified party
of its election so to assume and undertake the defense thereof, the indemnifying
party, if it shall actually undertake the defense thereof, shall not be liable
to such indemnified party under this Section 5 for any legal expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation and of liaison with counsel
so selected; provided, however, that, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be reasonable
defenses available to it which are different from or additional to those
available to the indemnifying party, or if the interests of the indemnified
party reasonably may be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred.
Any indemnified party shall have the right to retain its own
counsel in any such action, but the fees and disbursements of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
shall have failed to retain counsel for the indemnified person as aforesaid or
shall have failed to defend such action in accordance with the preceding
paragraph or (ii) the indemnifying party and such indemnified party shall have
mutually agreed to the retention of such counsel. It is understood that the
indemnifying party shall not, in connection with any action or related actions
in the same jurisdiction, be liable for the fees and disbursements of more than
one separate
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firm qualified in such jurisdiction to act as counsel for the indemnified party.
The indemnifying Party shall not, without the consent of the indemnified Party,
which consent shall not be unreasonably withheld or delayed, consent to the
entry of any judgment or enter into any settlement with respect to such action.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment.
If the indemnification provided for in the first two
paragraphs of this Section 5 is unavailable or insufficient to hold harmless an
indemnified party under such paragraphs in respect of any losses, claims,
damages or liabilities or actions in respect thereof referred to therein, then
each indemnifying party 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, liabilities or actions in such proportion as
appropriate to reflect the relative fault of the Company, on the one hand, and
the sellers of such Registerable Stock, on the other, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or actions as well as any other relevant equitable considerations.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact relates to
information supplied by the Company, on the one hand, or the sellers of such
Registerable Stock, on the other, and to the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each of you agree that it would not be
just and equitable if contributions pursuant to this paragraph were determined
by pro rata allocation (even if all of the sellers of such Registerable Stock
were treated as one entity for such purpose) or by any other method of
allocation which did not take account of the equitable considerations referred
to above in this paragraph. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities or action in respect
thereof, referred to above in this paragraph, shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph, the sellers of such
Registerable Stock shall not be required to contribute any amount in excess of
the amount, if any, by which the total price at which the Common Stock sold by
each of them was offered to the public exceeds the amount of any damages which
they would have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission. No person guilty of fraudulent
misrepresentations (within the meaning
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of Section 11(f) of the Securities Act), shall be entitled to contribution from
any person who is not guilty of such fraudulent misrepresentation.
6. Current Public Information. The Company agrees with you as
follows:
(a) The Company shall use its reasonable best efforts
to make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities
Act, at all times from and after the date hereof.
(b) The Company shall use its reasonable best efforts
to file with the Commission in a timely manner all reports and
other documents as the Commission may prescribe under Section
13(a) or 15(d) of the Exchange Act.
(c) The Company shall furnish to each seller of
Registerable Stock upon request (i) a copy of the most recent
annual or quarterly report of the Company, and (ii) such other
reports and documents so filed as a holder may reasonably
request to avail itself of any rule or regulation of the
Commission allowing a holder of Registerable Stock to sell any
such securities without registration.
7. Effectiveness of this Agreement. This Agreement shall
become effective at the Effective Time. If the Effective Time shall not occur,
this Agreement shall be of no force and effect.
8. Miscellaneous.
(a) All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not, provided, however, that the obligations of the
Company hereunder shall inure only to the benefit of (i) you, (ii) a person who
shall become a holder of Registerable Stock by gift or by will or the laws of
descent and distribution, (iii) an institutional lender to whom shares of
Registerable Stock are bona fide pledged as collateral security for a loan or
(iv) any entity in which you and members of your immediate family own in excess
of 50% of the equity or beneficial ownership, and the term "Registerable Stock"
as used herein shall be limited to Registerable Stock held by you or any such
person or entity.
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(b) All notices, requests, consents and other
communications hereunder shall be in writing and shall be mailed by first class
registered mail, postage prepaid, addressed as follows:
if to the Company, to it at Overlook at Great Notch,
000 Xxxxx Xxxx, Xxxxxx Xxxxx, Xxx Xxxxxx 00000, Attention:
Senior Vice President and General Counsel;
if to any holder of Registerable Stock, at its address as set
forth in Annex I hereto;
if to any subsequent holder of Registerable Stock
pursuant to Section 10(a) hereof to it at such address as may
have been furnished to the Company in writing by such holder;
or, in any case, at such other address or addresses as shall
have been furnished in writing to the Company (in the case of
a seller of Registerable Stock) or to the sellers of
Registerable Stock (in the case of the Company).
(c) This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(d) This Agreement constitutes the entire agreement
of the parties with respect to the subject matter hereof and may not be modified
or amended except in writing signed by the Company and by the holders of not
less than a majority of the Registerable Stock.
(e) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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Please indicate your acceptance of the foregoing by signing
and returning the enclosed counterpart of this letter, whereupon this letter
(herein sometimes called "this Agreement") shall be a binding agreement between
the Company and you.
Very truly yours,
THE BISYS GROUP, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Chairman, President
and Chief Executive
Officer
AGREED TO AND ACCEPTED
as of the date first
above written:
/s/ Harris D. Hobby
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Harris D. Hobby
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
/s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxxx
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