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EXHIBIT NO. 4.4
REGISTRATION RIGHTS AGREEMENT
February 28, 2001
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇▇▇:
This will confirm that in consideration of the consummation of
the merger of BI-PJR-BD, Inc. ("Acquisition"), a wholly owned subsidiary of The
BISYS Group, Inc. (the "Company"), with and into ▇.▇. ▇▇▇▇ Variable Corp.
("▇▇▇▇") pursuant to the Agreement and Plan of Merger dated as of February 28,
2001 among the Company, Acquisition, ▇▇▇▇ and you, 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, ▇▇▇▇, the
Company hereby covenants and agrees with 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.
"Contingent Merger Consideration" shall have the
meaning ascribed to such term in the Merger Agreement
(hereinafter defined).
"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
(hereinafter defined), provided that for Registerable Stock
included in the Contingent Consideration, the Distribution
Period shall end on the Second Anniversary of the Effective
Time if all of such Registerable Stock has not theretofore
been sold.
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"Effective Time" shall mean the Effective Time of the
Merger, as defined in the Merger Agreement (hereinafter
defined).
"Effective Time Merger Consideration" shall have the
meaning ascribed to such term in the Merger Agreement
(hereinafter defined).
"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.
"Merger" shall mean the merger of Acquisition with
and into ▇▇▇▇ pursuant to the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan
of Merger dated as of February 28, 2001 among the Company,
Acquisition, ▇▇▇▇ and you.
"Registerable Stock" shall mean shares of Common
Stock issued to you in the Merger and included in (a) the
Effective Time Merger Consideration and (b) the Contingent
Consideration, if any, and not transferred or otherwise
disposed of by you except as contemplated hereunder.
"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.
As soon as practicable after the Effective Time, the Company
shall use its reasonable best efforts to register under the Securities Act for
public resale by you the shares of Registerable Stock included in the Effective
Time Merger Consideration held by you. The Company shall not be obligated to
effect registration of such 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 your counsel, for a
reasonable opportunity to review, and thereafter file with the
Commission within 10 days following the Effective Time, 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 effective as soon as practicable and to
remain effective during the Distribution Period.
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(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 effective during
the Distribution Period.
(c) promptly upon effectiveness of the registration
statement furnish to you such number of copies of the
registration statement and the prospectus included therein and
any amendment or supplement thereto as you may reasonably
request in order to facilitate the public sale of the
Registerable Stock covered by such registration statement;
(d) use its reasonable best efforts to register or
qualify the Registerable Stock covered by such registration
statement, or confirm an exemption from registration if
applicable, 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 you (i) when such registration
statement or any amendment or supplement thereto or to the
prospectus contained therein has been filed, and when any
state filing has been made, (ii) of any request by the
Commission or the blue-sky commission of any state for
amendments or supplements to such registration statement or
prospectus or for additional information from you, (iii) of
the issuance by the Commission or the blue-sky commission of
any state 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 you 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 you
the prospectus will not contain an untrue statement of
material fact or omit to state any material fact necessary to
make the statements therein not misleading;
(g) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement;
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(h) promptly after the effectiveness of the
registration statement, and without any opinion of your
counsel, provide such letter of instructions to the Company's
stock transfer agent as shall be necessary to enable you, upon
confirmation to such transfer agent of the satisfaction of any
applicable prospectus delivery requirements, to transfer
shares of Registerable Stock in a registered transaction in
accordance with the Prospectus contained in the Registration
Statement and to have issued by such transfer agent to the
transferee thereof a certificate without any restrictive
legend; and
(i) as soon as practicable after the issuance of any
Registerable Stock included in the Contingent Merger
Consideration, use its reasonable best efforts to file another
registration statement on Form S-3 or other available form
covering any Registerable Stock included in the Contingent
Merger Consideration.
In connection with the registration hereunder, you shall
furnish to the Company in writing such information with respect to yourself and
the proposed distribution by you as shall be reasonably requested by the Company
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.
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 you
harmless against any losses, claims, damages or liabilities, joint or several,
to which you may become subject under the Securities Act, the securities law of
any state 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 any
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 the same in connection with the offering covered by such
registration statement, and the Company will reimburse you for any legal or
other expenses reasonably incurred by you 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 you in
writing specifically for use in such registration statement or prospectus.
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You 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 any registration statement filed
pursuant to Sections 2 and 3 hereof, 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 such 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 you 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 you 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 requested by the
Company and furnished in writing to the Company by you specifically for use in
such registration statement or prospectus. Notwithstanding the foregoing, (i)
you will not be liable for payments of amounts paid in settlement of any loss,
claim, damage, liability or action if such settlement is effected without your
consent (which consent shall not be unreasonably withheld), and (ii) in no event
shall your liability under this Section 5 in connection with any registration
exceed the proceeds received by you 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
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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.
Notwithstanding the foregoing, 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 firm qualified in such jurisdiction to
act as counsel for the indemnified party. 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
you, 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, including the failure to give any notice
under the third paragraph of this Section 5. 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 you, 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 you agree that it would not be just
and equitable if contributions pursuant to this paragraph were determined by pro
rata allocation 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, you
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 you 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 party guilty of fraudulent misrepresentations (within the meaning
of Section 11(f) of the Securities Act), shall be entitled to contribution from
any party who is not guilty of such fraudulent misrepresentation.
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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 you upon your
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 you may reasonably request to avail
yourself of any rule or regulation of the Commission allowing
you 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 either of the parties hereto shall bind and inure
to the benefit of their respective executors, administrators, successors and
assigns, as applicable, whether so expressed or not, provided, however, that the
obligations of the Company hereunder shall inure only to the benefit of (i) you
or (ii) a person who shall become a holder of Registerable Stock by gift or by
will or the laws of descent and distribution, and the term "Registerable Stock"
as used herein shall be limited to Registerable Stock held by you or any such
person.
(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,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Executive Vice President and General Counsel;
if to you, at your address as set forth in Schedule I hereto;
if to any subsequent holder of Registerable Stock
pursuant to Section 8 hereof to it at such address as may have
been furnished to the Company in writing by such holder;
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or, in any case, at such other address or addresses as shall
have been furnished in writing to the Company (in your case)
or to you (in the case of the Company).
(c) This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
(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 shares of 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.
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/ ▇▇▇▇▇ ▇. Dell
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Name: ▇▇▇▇▇ ▇. Dell
Title: Executive Vice President
AGREED TO AND ACCEPTED as of the date first above written:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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