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EXHIBIT 10.4
FORM OF TAX SHARING AND INDEMNITY AGREEMENT
This TAX SHARING AND INDEMNITY AGREEMENT (the "Agreement"), dated as
of this ___ day of ______, 2000, by and between H.T.E., INC. ("HTE"), a Florida
corporation, and XXXXXXXXXX.XXX, INC.("DSI"), a Florida corporation.
R E C I T A L S:
A. HTE, a public company, whose common shares are traded on the
Nasdaq SmallCap Market, owns 1,250,000 shares of DSI's common stock, par value
$.0001 per share, constituting 100% of the issued and outstanding common stock
of DSI and 500,000 shares of Series A Preferred Stock.
B. HTE is the parent of an affiliated group of corporations,
including DSI, that join in filing consolidated federal Tax Returns and certain
consolidated, combined or unitary state income Tax Returns;
C. HTE owns all of DSI'S Series A preferred stock and 100% of
DSI'S outstanding common stock; and
D. Pursuant to an Investment and Distribution Agreement on even
date herewith (the "Investment Agreement"), HTE and DSI have agreed to enter
into this Agreement to address certain tax issues involving HTE and DSI.
NOW, THEREFORE, in consideration of their mutual promises, HTE and DSI
agree as follows:
ARTICLE 1
DEFINITIONS
1.1 As used in this Agreement, the following terms shall have the
following meanings:
"Code" means the Internal Revenue Code of 1986, as amended,
or any successor thereto, as in effect for the taxable period in
question.
"Consolidated Group" means the group of corporations that
immediately prior to the Effective Date are members of the affiliated
group of corporations (within the meaning of Section 1504 of the Code)
of which HTE is the common parent.
"DSI Businesses" means the present and future subsidiaries,
divisions and business of DSI and any member of the DSI Post-Closing
Affiliates.
"DSI Post-Closing Affiliate" means any corporation,
partnership or other entity directly or indirectly controlled by DSI
after the Effective Date.
"DSI Pre-Closing Affiliate" means any corporation,
partnership or other entity directly or indirectly controlled by DSI
on or before the Effective Date.
"Effective Date" means the date upon which HTE ceases to own
eighty percent (80%) of the issued and outstanding shares of DSI.
"Final Determination" shall mean the final resolution of
liability for any Tax for a taxable period, including any related
interest or penalties, (a) by Internal Revenue Service Form 870 or
870-AD (or any successor forms
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thereto), on the date of acceptance by or on behalf of the Internal
Revenue Service ("IRS"), or by a comparable form under the laws of
other jurisdictions; except that a Form 870 or 870-AD or comparable
form that reserves (whether by its terms or by operation of law) the
right of the taxpayer to file a claim for refund and/or the right of
the Taxing Authority to assert a further deficiency shall not
constitute a Final Determination; (b) by a decision, judgment, decree,
or other order by a court of competent jurisdiction, which has become
final and unappealable; (c) by a closing agreement or accepted offer
in compromise under Section 7121 or 7122 of the Code, or comparable
agreements under the laws of other jurisdictions; (d) by any allowance
of a refund or credit in respect of an overpayment of Tax, but only
after the expiration of all periods during which such refund may be
recovered (including by way of offset) by the Tax imposing
jurisdiction; or (e) by any other final disposition, including by
reason of the expiration of the applicable statute of limitations.
"HTE Affiliate" means any corporation, partnership or other
entity directly or indirectly controlled by HTE, other than DSI or any
DSI Affiliate.
"HTE Businesses" means the present and future subsidiaries,
divisions and business of any member of the HTE Group, other than the
present and future subsidiaries, divisions and business of DSI or any
DSI Post-Closing Affiliates.
"HTE Group" means the group of corporations that immediately
after the Effective Date are members of the affiliated group of
corporations of which HTE is the common parent (within the meaning of
section 1504 of the Code).
"Representative" means with respect to any person or entity,
any of such person's or entity's directors, officers, employees,
agents, consultants, advisors, accountants, attorneys, and
representatives.
"Tax" or "Taxes" means (a) all forms of taxation, whenever
created or imposed, and whenever imposed by a national, municipal,
governmental, state, federal or other body, whether domestic or
foreign (a "Taxing Authority"), and without limiting the generality of
the foregoing, shall include net income, alternative or add-on minimum
tax, gross income, sales, use, ad valorem, gross receipts, value
added, franchise, profits, license, transfer, recording, withholding,
payroll, employment, excise, severance, stamp, occupation, premium,
property, windfall profit, custom duty, or other tax, governmental fee
or other like assessment or charge of any kind whatsoever, together
with any related interest, penalties, or other additions to tax, or
additional amounts imposed by any such Taxing Authority, (b) liability
for the payment of any amounts of the type described in (a) as a
result of being a member of an affiliated, consolidated, combined or
unitary group for any period, including any liability arising pursuant
to Treas. Reg. Section 1.1502-6, or as a result of being a party to
any agreement or arrangement whereby liability for payment of such
amounts was determined or taken into account with reference to the
liability of another party and (c) liability for the payment of any
amounts of the type described in (a) as a result of any express or
implied obligation to indemnify any other person.
"Taxable Period" or "Taxable Periods" means the tax year for
the "Consolidated Group" as defined in this Article 1.
"Taxing Authority" is defined under the term "Taxes."
"Tax Return" means any return, filing, questionnaire or other
document required to be filed, including requests for extensions of
time, filings made with estimated Tax payments, claims for refund and
amended returns that may be filed, for any taxable period with any
Taxing Authority in connection with any
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Tax (whether or not a payment is required to be made with respect to
such filing).
ARTICLE 2
PREPARATION AND FILING OF TAX RETURNS
2.1 INCOME INCLUDED. All Tax Returns required to be filed by the
Consolidated Group relating to Taxable Periods ending before or including the
Effective Date and filed after the date of this Agreement shall include the
income of DSI and DSI Pre-Closing Affiliates (as determined in this Section
2.1) attributable to such Taxable Periods (including, for Federal income Tax
purposes, any deferred income triggered into income by Treas. Reg. Section
1.1502-13 and any excess loss accounts taken into income under Treas. Reg.
Section 1.1502-19) required to be reported in the Consolidated Group's
consolidated Federal income Tax Returns (or under any similar rules applicable
to any state, local or other Tax Returns filed on a consolidated basis). The
income of DSI and DSI Pre-Closing Affiliates will be apportioned for the Tax
period commencing October 1, up to and including the Effective date and the
period after the Effective Date by closing the books of DSI and such DSI
Pre-Closing Affiliates as of the end of the Effective Date. The income of DSI
and any DSI Pre-Closing Affiliate shall not include any deferred income
triggered into income by Treas. Reg. Section 1.1502-13 and any excess loss
accounts taken into income under Treas. Reg. Section 1.1502-19, attributable to
any other member of the Consolidated Group.
2.2 TAX RETURNS FOR TAXABLE PERIODS ENDING BEFORE OR INCLUDING
THE EFFECTIVE DATE. Except as otherwise provided in Section 2.4, HTE shall
timely prepare and file, or cause to be timely prepared and filed, all Tax
Returns required to be filed by or on behalf of any member of the Consolidated
Group relating to Taxable Periods ending before or including the Effective
Date. DSI shall provide HTE any Tax-related information reasonably requested by
HTE relating to any Taxable Periods ending on or before the Effective Date.
2.3 TAX RETURNS FOR TAXABLE PERIODS BEGINNING AFTER THE EFFECTIVE
DATE. DSI shall prepare and file, or cause to be prepared and filed, all Tax
Returns for DSI and any DSI Post-Closing Affiliate for taxable periods of DSI
and any DSI Post-Closing Affiliate beginning after the Effective Date. HTE
shall prepare and file, or cause to be prepared and filed, all Tax Returns for
the HTE Group for Taxable Periods beginning after the Effective Date.
2.4 CARRY-OVER PERIOD RETURNS.
(a) DSI shall prepare and file on a timely basis any Tax
Returns (but not including any Federal income Tax Return or Tax
Returns under any similar rules applicable to any state or local, and
filed on a consolidated basis) of DSI and any DSI Pre-Closing
Affiliate for any Taxable Period beginning before and ending after the
Effective Date (a "Carry-Over Period").
(b) All other Tax Returns for a Carry-Over Period required to
be filed by any member of the Consolidated Group other than DSI or any
DSI Pre-Closing Affiliate shall be prepared and filed by HTE.
ARTICLE 3
PAYMENT OF TAXES
3.1 LIABILITY FOR TAXES WITH RESPECT TO TAXABLE PERIODS ENDING
BEFORE OR INCLUDING THE EFFECTIVE DATE. Except as otherwise provided in this
Agreement, HTE shall be responsible for paying and shall pay all Taxes relating
to any Tax Return filed by the Consolidated Group or any member thereof with
respect to any Taxable Period ending before and including the Effective Date,
including without limitation, any additional Taxes as a result of any audit,
amendment or other change in a Tax Return as filed by the Consolidated Group or
any member thereof. HTE shall be
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entitled to all Tax refunds received or receivable with respect to any and all
Taxes attributable to the Consolidated Group for all such taxable years and
periods ending before including the Effective Date.
3.2 PREPARATION OF DSI'S FINAL RETURNS; PAYMENT OF TAXES. On or
before the Effective Date HTE shall cause to be prepared (in a manner
consistent with practices followed in prior years) and delivered to DSI a
separate United States Federal Income Tax Return for DSI and each DSI
Pre-Closing Affiliate for the Tax period beginning October 1, and ending on the
Effective Date (the "DSI Final Returns"). The DSI Final Returns shall include
all items of income, gain, loss, deductions and credit of DSI and the DSI
Pre-Closing Affiliates realized during such period and determined and
apportioned in accordance with Section 2.1. HTE shall include in its
consolidated federal income tax for its first taxable year ending after the
Effective Date the items of income, gain, loss, deductions and credit shown on
the DSI Final Returns and shall pay all Taxes due with respect thereto as
provided in this Section 3.2 and Section 3.1.
3.3 SEPARATION PAYMENT WITH RESPECT TO FEDERAL INCOME TAXES. HTE
shall give DSI notice of the filing of HTE's consolidated federal income tax
returns for its first taxable year ending after the Effective Date ("Final
Return Notice"). If the DSI Final Returns show a tax liability, DSI shall pay
to HTE the amount thereof within thirty (30) days after receipt by DSI of the
Final Return Notice. HTE shall not withdraw any earnings or assets of DSI or
any DSI Pre-Closing Affiliates prior to the Effective Date. If the DSI Final
Returns show a net operating loss or other tax benefit that is utilized by HTE
or any member of the HTE Group and, therefore, is not allocated to the entity
incurring such tax benefit pursuant to Treas. Reg. Section 1.1502-79, HTE shall
pay to DSI (or the appropriate entity) the amount of any tax savings to be
realized thereby within thirty (30) days after receipt by DSI of the DSI Final
Returns.
3.4 ALLOCATION OF EARNINGS AND PROFITS FOR TAXABLE PERIODS ENDING
BEFORE OR INCLUDING THE EFFECTIVE DATE. All earnings and profits of the
Consolidated Group for all Taxable Periods ending before or including the
Effective Date shall be allocated pursuant to Section 1552 of the Code among
the members of the Consolidated Group in accordance with the ratio which that
portion of the consolidated taxable income attributable to each member of the
Consolidated Group having taxable income bears to the consolidated taxable
income of the Consolidated Group in accordance with Section 1552(a)(1) of the
Code and the Regulations thereunder.
3.5 UNUSED CARRY-FORWARD ATTRIBUTES. HTE and DSI agree that, for
purposes of all required returns and reports with respect to Taxes, the amount
of unused tax credits under the Code attributable to DSI and each of the DSI
Pre-Closing Affiliates that may be carried forward to Taxable Periods ending
after the Effective Date shall, unless otherwise required by law or
regulations, be determined in accordance with the principles of Treas. Reg.
Section 1.1502-79(c). Any other carry-forward attributes shall similarly be
determined in accordance with applicable regulations.
3.6 LIABILITY FOR TAXES WITH RESPECT TO POST-EFFECTIVE DATE
TAXABLE PERIODS. The HTE Group shall pay all Taxes of the HTE Group and shall
be entitled to receive and retain all refunds of Taxes of the HTE Group with
respect to Taxable Periods beginning after the Effective Date which are
attributable to the HTE Businesses. DSI shall pay all Taxes of DSI and any DSI
Post-Closing Affiliate and shall be entitled to receive and retain all refunds
of Taxes of DSI and any DSI Post-Closing Affiliate for all periods beginning
after the Effective Date which are attributable to the DSI Businesses.
3.7 CARRY-OVER PERIOD PAYMENTS. HTE shall be responsible for (and
shall pay) any Taxes shown to be due on a Tax Return for a Carry-Over Period
filed pursuant to Section 2.4(b) hereof by any member of the Consolidated Group
other than DSI or a DSI Pre-Closing Affiliate. DSI shall be
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responsible for (and shall pay) any Taxes shown to be due on a Tax Return for a
Carry-Over Period filed by DSI and any DSI Pre-Closing Affiliate pursuant to
Section 2.4(a) hereof.
3.8 CARRY-BACKS. DSI shall be entitled to any refund of any Tax
obtained by the Consolidated Group (or any member of the Consolidated Group),
including any refund obtained as a result of the carry-back of losses or
credits of DSI or any DSI Post-Closing Affiliate from any taxable period
beginning after the Effective Date to any Taxable Period ending before or
including the Effective Date. The application of any such carry-backs by DSI
and/or any other current or former member of the Consolidated Group shall be in
accordance with the Code and the Treasury Regulations promulgated thereunder.
Notwithstanding this Section 3.8, DSI and any DSI Post-Closing Affiliate shall
have the right, in its sole discretion, to make any election, including the
election under Section 172(b)(3) of the Code, which would eliminate or limit
the carry-back of any loss or credit to any Taxable Period ending before or
including the Effective Date.
3.9 POST-CLOSING ELECTIONS. At HTE's request, DSI and the DSI
Pre-Closing Affiliates shall make and/or join with HTE in making any Tax
elections reasonably requested by HTE after the Effective Date, if the making
of such election does not have a material adverse impact on DSI or any DSI
Pre-Closing Affiliate for any post-Effective Date Tax period.
3.10 REFUNDS. DSI and any DSI Pre-Closing Affiliate shall be
entitled to any refund of any Tax obtained by the Consolidated Group (or any
member of the Consolidated Group) as a result of any audit, amendment or other
change in the Tax Return as filed by the Consolidated Group or any member
thereof to the extent the refund is attributable to DSI and any DSI Pre-Closing
Affiliate for any Taxable Period of the Consolidated Group ending before or
including the Effective Date. HTE will cooperate with DSI and any DSI
Pre-Closing Affiliate in obtaining such refunds, including, but not limited to,
the filing of amended Tax Returns or refund claims. HTE will immediately pay to
DSI and any DSI Pre-Closing Affiliate any Tax refund described in this Section
3.10 when such refund is received by the HTE Group. With the exception of
Section 3.8, all other refunds arising from Tax Returns filed for the
Consolidated Group will belong to HTE.
ARTICLE 4
COOPERATION AND EXCHANGE OF INFORMATION
4.1 COOPERATION. DSI shall cooperate (and shall cause any DSI
Post-Closing Affiliate to cooperate) fully at such time and to the extent
reasonably requested by HTE in connection with the preparation and filing of
any Tax Return or the conduct of any audit, dispute, proceeding, suit or action
concerning any issues or any other matter contemplated hereunder relating to
any Taxable Period ending before or including the Effective Date. Such
cooperation shall include, without limitation, (a) the retention and provision
on demand of copies of books, records, documentation or other information
relating to any such Tax Return until the later of (i) the expiration of the
applicable statute of limitation (giving effect to any extension, waiver, or
mitigation thereof) and (ii) in the event any claim has been made under this
Agreement for which such information is relevant, until a Final Determination
with respect to such claim; (b) the execution of any document that may be
necessary or reasonably helpful in connection with the filing of any such Tax
Return, or in connection with any audit, proceeding, suit or action addressed
in the preceding sentence; and (c) the use of the parties' reasonable best
efforts to obtain any documentation from a governmental authority or a third
party that may be necessary or helpful in connection with the foregoing. Each
party shall make its employees and facilities available on a mutually
convenient basis to facilitate such cooperation.
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4.2 TAX RETURNS FOR TAXABLE PERIODS INCLUDING THE EFFECTIVE DATE.
HTE will provide DSI with the opportunity to review and comment upon any Tax
Returns to be filed after the date of this Agreement (including any amended
returns), and will provide DSI, promptly upon its request, with copies of such
Tax Returns (including any amended returns).
4.3 AUDITS. HTE will allow DSI and any DSI Pre-Closing Affiliate
and its counsel to participate (at the expense of DSI or its DSI Pre-Closing
Affiliate) in any audits of HTE's Consolidated Federal Income Tax Returns to
the extent that such returns relate to DSI and any DSI Pre-Closing Affiliate.
HTE will not settle any such audit in a manner which would adversely affect DSI
and any DSI Pre-Closing Affiliate without the prior written consent of DSI,
which consent shall not be unreasonably withheld.
4.4 CARRY-BACKS. HTE will immediately pay to DSI and any DSI
Pre-Closing Affiliate any Tax refund (or reduction in Tax liability) resulting
from a carry-back of a post-acquisition tax attribute of DSI and any DSI
Pre-Closing Affiliates into the HTE Consolidated Group Tax Return, when such
refund or reduction is realized by the HTE Group. HTE will cooperate with DSI
and any DSI Pre-Closing Affiliate in obtaining such refunds (or reduction in
Tax liability), including, but not limited to, the filing of amended Tax
Returns or refund claims.
4.5 CONTEST PROVISIONS. HTE shall have full responsibility and
discretion in the handling of any Tax controversy, including, without
limitation, an audit, a protest to the Appeals Division of the IRS, and
litigation in Tax Court or any other court of competent jurisdiction involving
a Tax Return of the Consolidated Group or the HTE Group.
ARTICLE 5
MISCELLANEOUS
5.1 TAX INDEMNIFICATION.
(a) HTE shall defend, indemnify and hold harmless DSI and
each DSI Pre-Closing Affiliate from and against any liability, cost or
expense, including, without limitation, any fine, penalty, interest,
charge or reasonable accountant's fee, for any Tax required under this
Agreement to be paid by HTE or any member of the Consolidated Group
other than DSI or a DSI Pre-Closing Affiliate.
(b) DSI shall indemnify and hold harmless HTE and each member
of the HTE Group from and against any liability, cost or expense,
including without limitation, any fine, penalty, interest, charge or
reasonable accountant's fee, for any Tax required under this Agreement
to be paid by DSI or any DSI Post-Closing Affiliate.
(c) The amount of any payment made with respect to this
Section 5.1 shall include any additional amount necessary to indemnify
the recipient of the payment against any Taxes imposed or incurred
(including any increase in liability or taxes resulting from a
reduction in the amount of the loss), and any reasonable professional
fees or other litigation costs incurred, in connection with such
payment, and (ii) be reduced by the amount of any tax benefit realized
or to be realized by the recipient as a result of its payment of the
Taxes being indemnified hereunder.
5.2 BREACH. HTE shall defend, indemnify and hold harmless DSI and
each DSI Pre-Closing Affiliate and DSI shall indemnify and hold harmless each
member of the HTE Group from and against any payment required
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to be made under this Agreement as a result of the breach by a member of the
HTE Group or by DSI or a DSI Pre-Closing Affiliate, as the case may be, of any
obligation under this Agreement.
5.3 RESOLUTION OF CERTAIN DISPUTES.
(a) Arbitration. Disagreements between HTE and DSI with
respect to amounts that either claims is owed by the other (or by an
Affiliate of the other) under this Agreement, or other matters under
this Agreement that are not resolved by mutual agreement, shall be
resolved by arbitration pursuant to this Section 5.3.
(b) Selection of the Arbitrator. Any arbitrator selected
pursuant to this Section 5.3(b) shall have at least ten (10) years of
experience in the field of corporate taxation, shall be an attorney
licensed to practice law in any state of the United States or a
certified public accountant licensed to practice in any state of the
United States and shall not be or have been employed by or affiliated
with either party. The parties shall first attempt to agree on a
mutually satisfactory arbitrator. If the parties are unable to agree
on a mutually satisfactory arbitrator within thirty (30) days after
either party notifies the other in writing of a disagreement requiring
arbitration pursuant to this Section 5.3 (15 days in the case of a
disagreement with respect to Section 4.1 through Section 4.5), each
party shall select an arbitrator. The two arbitrators thus selected
shall agree on and select a third arbitrator. If the two arbitrators
cannot agree on such third arbitrator within thirty (30) days (fifteen
(15) days in the case of a disagreement with respect to Section 4.1
through Section 4.5), the parties shall each select a different
arbitrator and renew the foregoing procedure. If the position of an
arbitrator is vacated, the person or persons who originally selected
the arbitrator to fill such position shall select a new arbitrator to
fill the position, unless the parties agree to continue the
arbitration with the remaining arbitrators. When used hereinafter, the
term "arbitrator" shall refer to the three arbitrators so selected
when appropriate and a decision of a majority of such arbitrators
shall constitute a decision by the arbitrator in the appropriate
context.
(c) Arbitration Procedures.
(i) The arbitration shall be conducted under the
auspices of the American Arbitration Association.
(ii) Each party within thirty (30) days after
engagement of the arbitrator (fifteen (15) days in the case
of a disagreement with respect to Section 4.1 through Section
4.5) shall submit to the arbitrator a written statement of
the party's position (including where relevant the total net
amount it asserts is owed by it or is due to it) regarding
the total amount in dispute.
(iii) The arbitrator shall base his decision on the
following standards. In the case of a factual dispute between
the parties, the arbitrator shall make a determination of the
correct facts. In the case of a dispute regarding a legal
issue, including the proper application of the Tax laws or
the proper interpretation of this Agreement, the arbitrator
shall make a determination in accordance with his best legal
judgment. Upon making determinations with respect to all
factual and legal issues in dispute, the arbitrator shall
determine the amount due by one party to the other or such
other matter with respect to the matter subject to the
arbitration. Where relevant, as to each matter in dispute,
the arbitrator shall find in favor of the party whose
statement submitted pursuant to paragraph (ii) above proposed
the amount closest to the amount so determined.
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(iv) The arbitrator shall render a written decision
stating only the result of such decision as soon as
practicable. The arbitrator shall also orally explain the
bases of such decision to both parties as soon as
practicable. If and only if both parties request, the
arbitrator shall state the bases of such decision in writing.
Where relevant, as to each matter in dispute, the
arbitrator's decision shall be in an amount equal to one of
the total amounts asserted by one of the parties in the
written statements submitted pursuant to paragraph (ii)
above. The arbitrator shall not, and is not authorized to,
render a decision in any other amount.
(v) The arbitrator's decision shall be final and
binding on the parties. No appeal to any court is
contemplated by this Agreement and each party, to the maximum
extent permissible by law, waives and relinquishes all rights
and entitlements to appeal such decision.
(vi) The arbitrator shall determine a fair
allocation of the costs of the arbitration proceeding
(including each party's legal fees) as between the parties.
5.4 NOTICES. Any notice, demand, claim or other communication
under this Agreement shall be in writing and shall be deemed given upon
delivery if delivered personally, upon mailing if sent by certified mail,
return receipt requested, postage prepaid, or upon completion of transmission
if sent by telecopy or facsimile, to the parties at the following address:
If to HTE:
H.T.E., Inc.
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxx 00000
Attn: X.X. Xxxxxx, Jr., Executive Vice President
If to DSI:
XxxxxxXxxx.xxx, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx X
Xxxxxxxx, Xxxxxxx 00000
Attn: O.F. Xxxxx, President and Chief Executive Officer
5.5 ENTIRE AGREEMENT. This Agreement and the applicable
provisions of the Distribution Agreement constitute the entire agreement of the
parties concerning the subject matter hereof, and supersedes all other
agreements, whether or not written, in respect of any Tax between or among any
member or members of the HTE Group, on the one hand, and DSI and any DSI
Pre-Closing Affiliate, on the other hand. This Agreement may not be amended
except by an agreement in writing, signed by the parties hereto. In the event
and to the extent that there shall be a conflict between the provisions of this
Agreement and the Distribution Agreement, the provisions of this Agreement
shall control.
5.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with, the laws of the State of Florida.
5.7 SUCCESSORS AND ASSIGNS. A party's rights and obligations
under this Agreement may not be assigned without the prior written consent of
the other party. All of the provisions of this Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and
permitted assigns.
5.8 NO THIRD PARTY BENEFICIARIES. This Agreement is solely for
the benefit of the parties to this Agreement and their respective subsidiaries
and should not be
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deemed to confer upon third parties any remedy, claim, liability,
reimbursement, claim of action or other right in excess of those existing
without this Agreement.
5.9 LEGAL ENFORCEABILITY. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of the prohibition or
unenforceability without invalidating the remaining provisions. Any prohibition
or unenforceability of any provision of this Agreement in any jurisdiction
shall not invalidate or render unenforceable the provision in any other
jurisdiction.
5.10 EXPENSES. Unless otherwise expressly provided in this
Agreement or in the Distribution Agreement, each party shall bear any and all
expenses that arise from their respective obligations under this Agreement. In
the event either party to this Agreement brings an action or proceeding for the
breach or enforcement of this Agreement, the prevailing party in such action or
proceeding, whether or not such action or proceeding proceeds to final
judgment, shall be entitled to recover as an element of its costs, and not as
damages, such reasonable attorneys' fees as may be awarded in the action or
proceeding in addition to whatever other relief to which the prevailing party
may be entitled.
5.11 CONFIDENTIALITY. Each party shall hold and cause its
Representatives to hold in strict confidence, unless compelled to disclose by
judicial or administrative process or, in the opinion of its counsel, by other
requirements of law, all information (other than any such information relating
solely to the business or affairs of such party) concerning the other parties
hereto furnished it by such other party or its Representatives pursuant to this
Agreement (except to the extent that such information can be shown to have been
(a) previously known by the party to which it was furnished, (b) in the public
domain through no fault of such party, or (c) later lawfully acquired from
other sources by the party to which it was furnished), and each party shall not
release or disclose such information to any other person, except its auditors,
attorneys, financial advisors, bankers and other consultants and advisors who
shall be advised of the provisions of this Section. Each party shall be deemed
to have satisfied its obligation to hold confidential information concerning or
supplied by the other party if it exercises the same care as it takes to
preserve confidentiality for its own similar information.
5.12 CONDITIONAL AGREEEMENT. This Agreement is conditioned upon
and only operable if DSI is deemed a member of HTE's Consolidated Group.
5.13 COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signature thereto and hereto were upon the same instrument.
5.14 HEADINGS. Introductory headings used in this Agreement are
solely for the convenience of the parties and shall not be deemed to be
limitations upon or descriptive of the contents of the Section or sub-sections
concerned.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
XXXXXXXXXX.XXX, INC.
By:
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Name: O.F. Xxxxx
Title: President and CEO
H.T.E., Inc.
By:
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Name: X.X. Xxxxxx, Jr.
Title: Executive Vice President
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