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EXHIBIT 10.5
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
December 21, 1999, between H.T.E., INC., a Florida corporation ("HTE"), and
XXXXXXXXXX.XXX, INC., a Florida corporation (the "Company").
R E C I T A L S:
A. HTE is the record and beneficial owner of 1,250,000 shares of
the Company's common stock.
B. Pursuant to an Investment and Distribution Agreement of even
date herewith between HTE and the Company, HTE has acquired from the Company
500,000 shares of Series A preferred stock.
C. Under the Investment and Distribution Agreement the Company
is required to enter into this Agreement and to grant to HTE certain
registration rights applicable to Registrable Securities (as defined below)
held by HTE.
NOW, THEREFORE, upon the premises and based on the mutual promises
herein contained, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
initially capitalized terms shall have the following meanings:
(a) "AFFILIATE" means, with respect to any person, any other
person who, directly or indirectly, is in control of, is controlled by
or is under common control with the former person; and "control"
(including the terms "controlling," "controlled by," and "under common
control with") means the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting securities, by
contract or otherwise.
(b) "COMPANY SECURITIES" has the meaning set forth in Section
3 hereof.
(c) "EXCHANGEABLE SECURITIES" has the meaning set forth in
Section 6 of this Agreement.
(d) "FAIR MARKET VALUE" means, with respect to any security,
(i) if the security is listed on a national securities exchange or
authorized for quotation on a national market quotation system, the
closing price, regular way, of the security on such exchange or
quotation system, as the case may be, or if no such reported sale of
the security shall have occurred on such date, on the next preceding
date on which there was such a reported sale, or (ii) if the security
is not listed for trading on a national securities exchange or
authorized for quotation on a national market quotation system, the
average of the closing bid and asked prices as reported by the
National Association of Securities Dealers Automated Quotation System
or such other reputable entity or system engaged in the regular
reporting of securities prices and on which such prices for such
security are reported or, if no such prices shall have been reported
for such date, on the next preceding date for which such prices were
so reported, or (iii) if the security is not publicly traded, the fair
market value of such security as determined by a nationally recognized
investment banking or appraisal firm mutually acceptable to the
Company and the Holders, the fair market value of whose Registrable
Securities is to be determined.
(e) "HOLDER" means HTE or any Permitted Transferee.
(f) "INITIATING HOLDERS" has the meaning set forth in Section
3 of this Agreement.
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(g) "OTHER HOLDERS" has the meaning set forth in Section 3
hereof.
(h) "OTHER SECURITIES" has the meaning set forth in Section 3
hereof.
(i) "OTHER VOTING SECURITIES" means any options, rights,
warrants or other securities convertible into or exchangeable for
Voting Stock of the Company.
(j) "PERMITTED TRANSFEREE" has the meaning set forth in
Section 11 hereof.
(k) "PERSON" means any individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, or other entity of whatever
nature.
(l) "REGISTRABLE AFTER-ACQUIRED SECURITIES" means any
securities of the Company acquired by HTE (or any Permitted
Transferee).
(m) "REGISTRABLE SECURITIES" means (i) all shares of Common
Stock (as presently constituted) owned on the date hereof by HTE, (ii)
all Registrable After-Acquired Securities, (iii) any stock or other
securities into which or for which such Common Stock or Registrable
After-Acquired Securities may hereafter be changed, converted or
exchanged, and (iv) any other securities issued to holders of such
Common Stock or Registrable After-Acquired Securities (or such stock
or other securities into which or for which such Common Stock or
Registrable After-Acquired Securities are so changed, converted or
exchanged) upon any reclassification, share combination, share
subdivision, share dividend, merger, consolidation or similar
transaction or event, provided that any such securities shall cease to
be Registrable Securities when such securities are sold in any manner
to a person who is not a Permitted Transferee.
(n) "REGISTRATION EXPENSES" means all out-of-pocket expenses
incurred in connection with any registration of Registrable Securities
pursuant to this Agreement including, without limitation, the
following; (i) SEC filing fees; (ii) the fees, disbursements and
expenses of the Company's counsel(s) and accountants in connection
with the registration of the Registrable Securities to be disposed of;
(iii) all expenses in connection with the preparation, printing and
filing of the registration statement, any preliminary prospectus or
final prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to any Holders, underwriters
and dealers and all expenses incidental to delivery of the Registrable
Securities; (iv) the cost of printing or producing any underwriting
agreement, agreement among underwriters, agreement between syndicates,
selling agreement, blue sky or legal investment memorandum or other
document in connection with the offering, sale or delivery of the
Registrable Securities to be disposed of; (v) all expenses in
connection with the qualification of the Registrable Securities to be
disposed of for offering and sale under state securities laws,
including the fees and disbursements of counsel for the underwriters
in connection with such qualification and the preparation of any blue
sky and legal investments surveys; (vi) the filing fees incident to
securing any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Registrable Securities
to be disposed of; (vii) transfer agents', depositaries' and
registrars' fees and the fees of any other agent appointed in
connection with such offering; (viii) all security engraving and
security printing expenses, (ix) all fees and expenses payable in
connection with the listing of the Registrable Securities on any
securities exchange or inter-dealer quotation system; and (x) any
one-time payment for directors and officers insurance directly related
to such offering, provided the insurer provides a separate statement
for such payment.
(o) "RULE 144" means Rule 144 promulgated under the
Securities Act, or any successor rule to similar effect.
(p) "SEC" means the United States Securities and Exchange
Commission.
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(q) "SECURITIES ACT" means the Securities Act of 1933, as
amended, or any successor statute.
(r) "SELLING EXPENSES" means all underwriting discounts and
commissions, selling concessions and stock transfer taxes applicable
to the sale by the Holders of Registrable Securities pursuant to this
Agreement and all fees and disbursements of any legal counsel,
investment banker, accountant or other professional advisor retained
by a Holder.
(s) "SELLING HOLDER" has the meaning set forth in Section 5
hereof.
(t) "TRANSACTIONAL DEFERRAL" has the meaning set forth in
Section 2 of this Agreement.
(u) "VOTING STOCK" means shares of the Company's capital
stock having the power under ordinary circumstances (and not merely
upon the happening of a contingency) to vote in the election of
directors of the Company.
2. DEMAND REGISTRATION.
(a) At any time prior to such time as the rights under this
Section 2 terminate with respect to a Holder as provided in Section
2(e) hereof, upon written notice from such Holder in the manner set
forth herein requesting that the Company effect the registration under
the Securities Act of any or all of the Registrable Securities held by
such Holder, which notice shall specify the intended method or methods
of disposition of such Registrable Securities, the Company shall use
its best efforts to effect, in the manner set forth in Section 5, the
registration under the Securities Act of such Registrable Securities
for disposition in accordance with the intended method or methods of
disposition stated in such request (including in an offering on a
delayed or continuous basis under Rule 415 (or any successor rule to
similar effect) promulgated under the Securities Act, if (x) the
Company is then eligible to register such Registrable Securities on
Form S-3 (or a successor form) for such offering and (y) the Company
consents to such an offering (except that no consent of the Company
will be required if the contemplated offering on a delayed or
continuous basis under Rule 415 is the offering of Registrable
Securities upon the exercise, exchange or conversion of Exchangeable
Securities as contemplated by Section 6 hereof)), provided that:
(i) if, within 5 business days of receipt of a
registration request pursuant to this Section 2(a), the
Holder or Holders making such request are advised in writing
that the Company has in good faith commenced the preparation
of a registration statement for an underwritten public
offering prior to receipt of the notice requesting
registration pursuant to this Section 2(a) and the managing
underwriter of the proposed offering has determined that in
such firm's good faith opinion, a registration at the time
and on the terms requested would materially and adversely
affect the offering that is contemplated by the Company, the
Company shall not be required to effect a registration
pursuant to this Section 2(a) (a "Transactional Deferral")
until the earliest of (A) the abandonment of such offering by
the Company, (B) 60 days after receipt by the Holder or
Holders requesting registration of the managing underwriter's
written opinion referred to above in this clause (i), unless
the registration statement for such offering has become
effective and such offering has commenced on or prior to such
60th day, and (C) if the registration statement for such
offering has become effective and such offering has commenced
on or prior to such 60th day, the day on which the
restrictions on the Holders contained in Section 10 hereof
lapse, provided, however, that the Company shall not be
permitted to delay a requested registration in reliance on
this clause (i) more than once in any 12-month period;
(ii) if, while a registration request is pending
pursuant to this Section 2(a), the Company determines,
following consultation with and receiving advice from its
legal counsel, that the filing of a registration
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statement would require the disclosure of material
information that the Company has a bona fide business purpose
for preserving as confidential and the disclosure of which
the Company determines reasonably and in good faith would
have a material adverse effect on the Company, the Company
shall not be required to effect a registration pursuant to
this Section 2(a) until the earlier of (A) the date upon
which such material information is otherwise disclosed to the
public or ceases to be material and (B) 90 days after the
Company makes such determination;
(iii) the Company shall not be obligated to file a
registration statement relating to a registration request
pursuant to this Section 2: (A) prior to December 31, 2000,
(B) within a period of 365 calendar days after the effective
date of any other registration statement of the Company
demanded pursuant to this Section 2(a), or (C) if such
registration request is for a number of Registrable
Securities having a Fair Market Value on the business day
immediately preceding the date of such registration request
of less than $3,000,000; and
(iv) the Company shall not be obligated to file a
registration statement relating to a registration request
pursuant to this Section 2: (A) in the case of a registration
request by HTE or any Permitted Transferee that has acquired,
in the transaction in which it became a Permitted Transferee,
at least a majority of the then issued and outstanding Voting
Stock, on more than three occasions after such time as HTE or
such Permitted Transferee, as the case may be, owns less than
a majority of the voting power of the outstanding capital
stock of the Company (it being acknowledged that so long as
HTE or such Permitted Transferee owns a majority of the
voting power of the outstanding capital stock of the Company,
there shall be no limit to the number of occasions on which
HTE or such Permitted Transferee may exercise such rights
other than as expressly set forth herein), or (B) in the case
of a Holder other than HTE or a Permitted Transferee
described in clause (A) above, on more than the number of
occasions permitted such Holder in accordance with Section 11
hereof.
(b) Notwithstanding any other provision of this Agreement to
the contrary:
(i) a registration requested by a Holder pursuant
to this Section 2 shall not be deemed to have been effected
(and, therefore, not requested for purposes of Section 2(a)),
(A) unless the registration statement filed in connection
therewith has become effective, (B) if after such
registration statement has become effective, it becomes
subject to any stop order, or there is issued an injunction
or other order or decree of the SEC or other governmental
agency or court for any reason other than a misrepresentation
or an omission by such Holder, which injunction, order or
decree prohibits or otherwise materially and adversely
affects the offer and sale of the Registrable Securities so
registered prior to the completion of the distribution
thereof in accordance with the plan of distribution set forth
in the registration statement or (C) if the conditions to
closing specified in the purchase agreement or underwriting
agreement entered into in connection with such registration
are not satisfied by reason of some act, misrepresentation or
omission by the Company and are not waived by the purchasers
or underwriters; and
(ii) nothing herein shall modify a Holder's
obligation to pay Registration Expenses, in accordance with
Section 4 hereof, that are incurred in connection with any
withdrawn registration requested by such Holder.
(c) In the event that any registration pursuant to this
Section 2 shall involve, in whole or in part, an underwritten
offering, Holders owning at least 50.1% of the Fair Market Value of
the Registrable Securities to be registered in connection with such
offering shall have the right to designate an underwriter reasonably
satisfactory to the Company as the lead managing underwriter of such
underwritten offering, and the Company shall have the right to
designate one underwriter
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reasonably satisfactory to such Holders as a co-manager of such
underwritten offering.
(d) The Company shall have the right to cause the
registration of additional securities for sale for the account of any
person (including the Company) in any registration of Registrable
Securities requested by any Holder pursuant to Section 2(a) only to
the extent the managing underwriter or other independent marketing
agent for such offering (if any) determines that, in its opinion, the
additional securities proposed to be sold will not materially and
adversely affect the offering and sale of the Registrable Securities
to be registered in accordance with the intended method or methods of
disposition then contemplated by such Holder. The rights of a Holder
to cause the registration of additional Registrable Securities held by
such Holder in any registration of Registrable Securities requested by
another Holder pursuant to Section 2(a) shall be governed by the
agreement of the Holders with respect thereto as provided in Section
11(a).
(e) The Company shall not be obligated to file a registration
statement relating to a registration request by a Holder pursuant to
this Section 2 from and after such time as such Holder first owns
Registrable Securities representing (assuming for this purpose the
conversion, exchange or exercise of all Registrable Securities then
owned by such Holder that are convertible into or exercisable or
exchangeable for Voting Stock of the Company) less than 10% of the
then issued and outstanding Voting Stock of the Company.
3. PIGGYBACK REGISTRATION. If the Company at any time proposes
to register any of its Common Stock or any other of its securities
(collectively, "Other Securities") under the Securities Act, whether or not for
sale for its own account, in a manner which would permit registration of
Registrable Securities for sale for cash to the public under the Securities
Act, it will at such time give prompt written notice to each Holder of its
intention to do so at least 10 business days prior to the anticipated filing
date of the registration statement relating to such registration. Such notice
shall offer each such Holder the opportunity to include in such registration
statement such number of Registrable Securities as each such Holder may
request. Upon the written request of any such Holder made within 5 business
days after the receipt of the Company's notice (which request shall specify the
number of Registrable Securities intended to be disposed of and the intended
method of disposition thereof), the Company shall effect, in the manner set
forth in Section 5, in connection with the registration of the Other
Securities, the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register, to the extent
required to permit the disposition (in accordance with such intended methods
thereof) of the Registrable Securities so requested to be registered, provided
that:
(a) if at any time after giving written notice of its
intention to register any securities and prior to the effective date
of such registration, the Company shall determine for any reason not
to register or to delay registration of such securities, the Company
may, at its election, give written notice of such determination to the
Holders and, thereupon, (A) in the case of a determination not to
register, the Company shall be relieved of its obligation to register
any Registrable Securities in connection with such registration and
(B) in the case of a determination to delay such registration, the
Company shall be permitted to delay registration of any Registrable
Securities requested to be included in such registration for the same
period as the delay in registering such other securities, but, in
either such case, without prejudice to the rights of the Holders under
Section 2;
(b) (i) if the registration referred to in the first sentence
of this Section 3 is to be a registration in connection with an
underwritten offering on behalf of either the Company or holders of
securities (other than Registrable Securities) of the Company ("Other
Holders"), and the managing underwriter for such offering advises the
Company in writing that, in such firm's opinion, such offering would
be materially and adversely affected by the inclusion therein of
Registrable Securities requested to be included therein because such
Registrable Securities are not of the same type, class or series as
the securities to be offered and sold in such offering on behalf of
the Company and/or the Other Holders, the Company may
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exclude all such Registrable Securities from such offering provided
that the Holder is permitted to substitute for the Registrable
Securities so excluded an equal number of Registrable Securities of
the same type, class or series as those being registered by the
Company or the Other Holders, if and to the extent such Holder owns
Registrable Securities of such type, class or series or can acquire
Registrable Securities of such type, class or series upon exercise or
conversion of other Registrable Securities; and
(ii) if the registration referred to in the first
sentence of this Section 3 is to be a registration in
connection with an underwritten primary offering on behalf
of the Company, and the managing underwriter for such
offering advises the Company in writing that, in such firm's
opinion, such offering would be materially and adversely
affected by the inclusion therein of the Registrable
Securities requested to be included therein because the
number or principal amount of such Registrable Securities,
considered together with the number or principal amount of
securities proposed to be offered by the Company, exceeds
the aggregate number or principal amount of securities
which, in such firm's opinion, can be sold in such offering
without materially and adversely affecting the offering, the
Company shall include in such registration: (1) first, all
securities the Company proposes to sell for its own account
("Company Securities") and (2) second, the number or
principal amount of Registrable Securities and securities,
if any, requested to be included therein by Other Holders in
excess of the number or principal amount of Company
Securities which, in the opinion of such underwriter, can be
so sold without materially and adversely affecting such
offering (allocated pro rata among the Holders and the Other
Holders on the basis of the number of securities (including
Registrable Securities) requested to be included therein by
each Holder and each such Other Holder); and
(iii) if the registration referred to in the first
sentence of this Section 3 is to be a registration in
connection with an underwritten secondary offering on behalf
of Other Holders made pursuant to demand registration rights
granted by the Company to such Other Holders (the
"Initiating Holders"), and the managing underwriter for such
offering advises the Company in writing that, in such firm's
opinion, such offering would be materially and adversely
affected by the inclusion therein of the Registrable
Securities requested to be included therein because the
number or principal amount of such Registrable Securities,
considered together with the number or principal amount of
securities proposed to be offered by the Initiating Holders,
exceeds the aggregate number or principal amount of
securities which, in such firm's opinion, can be sold in
such offering without materially and adversely affecting the
offering, the Company shall include in such registration;
(1) first, to the extent the registration rights granted to
an Initiating Holder permit it to exclude other securities
from its registration on substantially the same basis as
that set forth in the first sentence of Section 2(d) hereof,
all securities any such Initiating Holder proposes to sell
for its own account, and (2) second, the number or principal
amount of additional securities (including Registrable
Securities) that such managing underwriter advises can be
sold without materially and adversely affecting such
offering, allocated pro rata among any Other Holders to
which clause (1) does not apply and the Holders on the basis
of the number of securities (including Registrable
Securities) requested to be included therein by each Holder
and each such Other Holder,
(c) the Company shall not be required to effect any
registration of Registrable Securities under this Section 3 incidental
to the registration of any of its securities in connection with stock
option or other executive or employee benefit or compensation plans of
the Company;
(d) no registration of Registrable Securities effected under
this Section 3 shall relieve the Company of its obligation to effect
any registration of Registrable Securities required of the Company
pursuant to Section 2 hereof, except as expressly provided in Section
2; and
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(e) the Company shall not be required to effect any
registration of Registrable Securities under this Section for any
Holder from and after such time as such Holder is able to dispose of
all of its Registrable Securities within a three-month period pursuant
to Rule 144.
4. EXPENSES. The Holders, on the one hand, by accepting
Registrable Securities, and the Company, on the other hand, each agree to pay
one-half of all Registration Expenses with respect to a registration pursuant
to Section 2 hereof, provided that to the extent a registration pursuant to
Section 2 includes the registration of shares for the Company or another person
in connection therewith, the Company or such other person shall pay all
incremental expenses of including such additional shares in the registration.
The Holders' portion of any Registration Expenses shall be allocated among them
pro rata based on each Holder's number or principal amount of Registrable
Securities included in such offering. The Company agrees to pay all
Registration Expenses with respect to a registration pursuant to Section 3
hereof. All Registration Expenses to be paid by the Holder shall be paid within
3010 days of the delivery of a statement from the Company, such statements to
be delivered not more frequently than once every 6030 days. All internal
expenses of the Company or a Holder in connection with any offering pursuant to
this Agreement, including, without limitation, the salaries and expenses of
officers and employees, including in-house attorneys, shall be borne by the
party incurring them. All Selling Expenses of the Holders participating in any
registration pursuant to this Agreement shall be borne by such Holders pro rata
based on each Holder's number of Registrable Securities included in such
registration.
5. REGISTRATION AND QUALIFICATION. If and whenever the Company
is required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Section 2 or 3
hereof, the Company, subject to Section 4 hereof, shall:
(a) prepare and file a registration statement under the
Securities Act relating to the Registrable Securities to be offered as
soon as practicable, but in no event later than 45 days (60 days if
the applicable registration form is other than Form S-3) after the
date notice is given, and use its best efforts to cause the same to
become effective within 90 days after the date notice is given (120
days if the applicable registration form is other than Form S-3);
(b) prepare and file with the SEC 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 with respect to the disposition of all Registrable
Securities until the earlier of (i) such time as all of such
Registrable Securities have been disposed of in accordance with the
intended methods of disposition set forth in such registration
statement and (ii) the expiration of nine months after such
registration statement becomes effective; provided, that such
nine-month period shall be extended for such number of days that
equals the number of days elapsing from (A) the date the written
notice contemplated by paragraph (f) below is given by the Company to
(B) the date on which the Company delivers to the Holders of
Registrable Securities the supplement or amendment contemplated by
paragraph (f) below; and provided further, that in the case of a
registration to permit the exercise or exchange of Exchangeable
Securities for, or the conversion of Exchangeable Securities into,
Registrable Securities, the time limitation contained in clause (ii)
above shall be disregarded to the extent that, in the written opinion
of HTE's counsel delivered to the Company, such Registrable Securities
are required to be covered by an effective registration statement
under the Securities Act at the time such Registrable Securities are
issued upon exercise, exchange or conversion of Registrable Securities
in order for such Registrable Securities to be freely tradeable by any
person who is not an Affiliate of the Company or HTE;
(c) furnish to the Holders and to any underwriter of such
Registrable Securities such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies
of the prospectus included in such registration statement (including
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each preliminary prospectus and any summary prospectus), in conformity
with the requirements of the Securities Act, and such other documents,
as the Holders or such underwriter may reasonably request in order to
facilitate the public sale of the Registrable Securities, and a copy
of any and all transmittal letters or other correspondence to, or
received from, the SEC or any other governmental agency or
self-regulatory body or other body having jurisdiction (including any
domestic or foreign securities exchange) relating to such offering;
(d) use its best efforts to register or qualify all
Registrable Securities covered by such registration statement under
the securities or blue sky laws of such jurisdictions (domestic or
foreign) as the Holders or any underwriter of such Registrable
Securities shall request, and use its best efforts to obtain all
appropriate registrations, permits and consents required in connection
therewith, and do any and all other acts and things which may be
necessary or advisable to enable the Holders or any such underwriter
to consummate the disposition in such jurisdictions of its Registrable
Securities covered by such registration statement; provided that the
Company shall not for any such purpose be required to register or
qualify generally to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, or to subject itself to
taxation in any such jurisdiction, or to consent to general service of
process in any such jurisdiction;
(e) (i) use its best efforts to furnish an opinion of counsel
for the Company addressed to the underwriters and dated the date of
the closing under the underwriting agreement (if any) (or if such
offering is not underwritten, dated the effective date of the
registration statement), and (ii) use its best efforts to furnish a
"cold comfort" letter addressed to the underwriters, if permissible
under applicable accounting practices, and signed by the independent
public accountants who have audited the Company's financial statements
included in such registration statement, in each such case covering
substantially the same matters with respect to such registration
statement (and the prospectus included therein) as are customarily
covered in opinions of issuer's counsel and in accountants' letters
delivered to underwriters in underwritten public offerings of
securities and, in the case of such accountants' letter, with respect
to events subsequent to the date of such financial statements;
(f) immediately notify each Holder of Registrable Securities
included in such registration (each a "Selling Holder") in writing (i)
at any time when a prospectus relating to a registration pursuant to
Section 2 or 3 hereof is required to be delivered under the Securities
Act of the happening of any event 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 any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and (ii) if any request by the SEC or any other regulatory
body or other body having jurisdiction for any amendment of or
supplement to any registration statement or other document relating to
such offering, and in either such case (i) or (ii) at the request of
the Selling Holders, subject to Section 4 hereof, prepare and furnish
to the Selling Holders a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not 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, in light of the
circumstances under which they are made, not misleading;
(g) use its best efforts to list all such Registrable
Securities covered by such registration on each securities exchange
and inter-dealer quotation system on which the Common Stock is then
listed, with expenses in connection therewith (not including any
future periodic assessments or fees for such additional listing, which
shall be paid by the Company) to be paid in accordance with Section 4
hereof;
(h) use its best efforts to list all Registrable Securities
covered by such registration statement on any securities exchange or
inter-dealer quotation system (in each case, domestic or foreign) not
described in paragraph (g) above as the
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Selling Holders or any underwriter of such Registrable Securities
shall request, and use its best efforts to obtain all appropriate
registrations, permits and consents required in connection therewith,
and to do any and all other acts and things which may be necessary or
advisable to effect such listing; provided, however, that, (i)
notwithstanding Section 4, the Holders of the Registrable Securities
to be so listed shall pay all costs and expenses incurred by the
Company in connection with such listing and (ii) the Company shall
have no obligation to use its best efforts to so list Registrable
Securities if in the good faith opinion of counsel for the Company
such listing shall impose on the Company an ongoing material
compliance obligation;
(i) to the extent reasonably requested by the lead or
managing underwriters in connection with any underwritten offering,
send appropriate officers of the Company to attend any "road shows"
scheduled in connection with any such registration; and
(j) furnish for delivery in connection with the closing of
any offering of Registrable Securities unlegended certificates
representing ownership of the Registrable Securities being sold in
such denominations as shall be requested by the Selling Holders or the
underwriters.
6. EXCHANGEABLE SECURITIES. HTE shall be entitled, if it intends
to offer any options, rights, warrants or other securities issued or to be
issued by it or any other person that are exercisable or exchangeable for or
convertible into any Registrable Securities ("Exchangeable Securities"), to
register the Registrable Securities underlying such options, rights, warrants
or other securities pursuant to (and subject to the limitations contained in)
Section 2 of this Agreement.
7. UNDERWRITING; DUE DILIGENCE.
(a) If requested by the underwriters for any underwritten
offering of Registrable Securities pursuant to a registration
requested under this Agreement, the Company shall enter into an
underwriting agreement, with such underwriters for such offering, such
agreement to contain such representations and warranties by the
Company and such other terms and provisions as are customarily
contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities and
contribution substantially to the effect and to the extent provided in
Section 8 hereof and the provision of opinions of counsel and
accountants' letters to the effect and to the extent provided in
Section 5(e) hereof. The Selling Holders on whose behalf the
Registrable Securities are to be distributed by such underwriters
shall be parties to any such underwriting agreement. Such underwriting
agreement shall also contain such representations and warranties by
the Selling Holders on whose behalf the Registrable Securities are to
be distributed as are customarily contained in underwriting agreements
with respect to secondary distributions. The Selling Holders may
require that any additional securities included in an offering
proposed by a Holder be included on the same terms and conditions as
the Registrable Securities that are included therein.
(b) In the event that any registration pursuant to Section 3
shall involve, in whole or in part, an underwritten offering, the
Company may require the Registrable Securities requested to be
registered pursuant to Section 3 to be included in such underwritten
offering on the same terms and conditions as shall be applicable to
the other securities being sold through underwriters under such
registration. If requested by the underwriters for such underwritten
offering, the Selling Holders on whose behalf the Registrable
Securities are to be distributed shall enter into an underwriting
agreement with such underwriters, such agreement to contain such
representations and warranties by the Selling Holders and such other
terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnities and contribution substantially to the effect
and to the extent provided in Section 8 hereof. Such underwriting
agreement shall also contain such representations and warranties by
the Company and such other person or entity for whose account
securities are being sold in such offering as are customarily
contained in underwriting agreements with respect to secondary
distributions.
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(c) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the
Securities Act, the Company shall give the Holders of such Registrable
Securities and the Underwriters, if any, and their respective counsel
and accountants, such reasonable and customary access to its banks and
records and such opportunities to discuss the business of the Company
with its officers and the independent public accountants who have
certified the Company's financial statements as shall be necessary, in
the opinion of such Holders and such underwriters or their respective
counsel, to conduct a reasonable investigation within the meaning of
the Securities Act.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) In the case of each offering of Registrable Securities
made pursuant to this Agreement, the Company agrees to indemnify and
hold harmless each Holder, its officers and directors, each
underwriter of Registrable Securities so offered and each person, if
any, who controls any of the foregoing persons within the meaning of
the Securities Act, from and against any and all claims, liabilities,
losses, damages, expenses and judgments, joint or several, to which
they or any of them may become subject, under the Securities Act or
otherwise, including any amount paid in settlement of any litigation
commenced or threatened which is approved by the indemnifying party as
provided below, and shall promptly reimburse them, as and when
incurred, for any reasonable legal or other expenses incurred by them
in connection with investigating any claims and defending any actions,
insofar as such losses, claims, damages, liabilities or actions shall
arise out of, or shall be based upon, any untrue statement or alleged
untrue statement of a material fact contained in the registration
statement (or in any preliminary or final prospectus included therein)
or any amendment thereof or supplement thereto, or in any document
incorporated by reference therein, or any omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that the Company shall not be liable to a particular Holder
in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement, or any omission, if such
statement or omission shall have been made in reliance upon and in
conformity with information relating to such Holder furnished to the
Company in writing by or on behalf of such Holder specifically for use
in the preparation of the registration statement (or in any
preliminary or final prospectus included therein) or any amendment
thereof or supplement thereto. Such indemnity shall remain in full
force and affect regardless of any investigation made by or on behalf
of a Holder and shall survive the transfer of such securities. The
foregoing indemnity agreement is in addition to any liability which
the Company may otherwise have to each Holder, any of such Holder's
directors or officers, underwriters of the Registrable Securities or
any controlling person of the foregoing; provided, further, that this
indemnity does not apply in favor of any underwriter or person
controlling an underwriter (or if a Selling Holder offers Registrable
Securities directly without an underwriter, the Selling Holder) with
respect to any loss, liability, claim, damage or expense arising out
of or based upon any untrue statement or alleged untrue statement or
omission or alleged omission in any preliminary prospectus if a copy
of a final prospectus was not sent or given by or on behalf of an
underwriter (or the Selling Holder, if the Selling Holder offered the
Registrable Securities directly without an underwriter) to the person
asserting such loss, claim, damage, liability or action at or prior to
the written confirmation of the sale of the Registrable Securities as
required by the Securities Act and such untrue statement or omission
had been corrected in such final prospectus.
(b) In the case of each offering made pursuant to this
Agreement, each Holder of Registrable Securities included in such
offering, by exercising its registration rights hereunder, agrees to
indemnify and hold harmless the Company, its officers and directors
and each person, if any, who controls any of the foregoing within the
meaning of the Securities Act (and if requested by the underwriters,
each underwriter who participates in the offering and each person, if
any, who controls any such underwriter within the meaning of the
Securities Act), from and against any and all claims, liabilities,
losses, damages, expenses and judgments, joint or
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several, to which they or any of them may become subject, under the
Securities Act or otherwise, including any amount paid in settlement
of any litigation commenced or threatened which is approved by the
indemnifying party as provided below, and shall promptly reimburse
them, as and when incurred, for any legal or other expenses incurred
by them in connection with investigating any claim and defending any
actions, insofar as any such losses, claims, damages, liabilities or
actions shall arise out of, or shall be based upon, any untrue
statement or alleged untrue statement of a material fact contained in
the registration statement (or in any preliminary or final prospectus
included therein) or any amendment thereof or supplement thereto, or
any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that such
untrue statement of a material fact is contained in, or such material
fact is omitted from, information relating to such Holder furnished in
writing to the Company by or on behalf of such Holder specifically for
use in the preparation of such registration statement (or in any
preliminary or final prospectus included therein). The foregoing
indemnity is in addition to any liability which such Holder may
otherwise have to the Company, any of its directors or officers,
underwriters of the Registrable Securities or any controlling person
of the foregoing; provided, however, that this indemnity does not
apply in favor of any underwriter or person controlling an underwriter
(or if the Company offers Registrable Securities directly without an
underwriter, the Company) with respect to any loss, liability, claim,
damage or expense arising out of or based upon any untrue statement or
alleged untrue statement or omission or alleged omission in any
preliminary prospectus if a copy of a final prospectus was not sent or
given by or on behalf of an underwriter (or the Company, if the
Company offered the Registrable Securities directly without an
underwriter) to the person asserting such loss, claim, damage,
liability or action at or prior to the written confirmation of the
sale of the Registrable Securities as required by the Securities Act
and such untrue statement or omission had been corrected in such final
prospectus.
(c) Each party indemnified under Paragraph (a) or (b) of this
Section 8 shall, promptly after receipt of notice of any claim or the
commencement of any action against such indemnified party in respect
of which indemnity may be sought, notify the indemnifying party in
writing of the claim or the commencement thereof; provided that the
failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party on account of the
indemnity agreement contained in paragraph (a) or (b) of this Section
8, except to the extent the indemnifying party was prejudiced by such
failure, and in no event shall relieve the indemnifying party from any
other liability which it may have to such indemnified party. If any
such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein, and, to the extent
that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; provided that each indemnified
party, its officers and directors, if any, and each person, if any,
who controls such indemnified party within the meaning of the
Securities Act, shall have the right to employ separate counsel
reasonably approved by the indemnifying party to represent them if the
named parties to any action (including any impleaded parties) include
both such indemnified party and an indemnifying party or an Affiliate
of an indemnifying party, and such indemnified party shall have been
advised by counsel either (i) that there may be one or more legal
defenses available to such indemnifying party that are different from
or additional to those available to such indemnified party or such
Affiliate or (ii) a conflict may exist between such indemnified party
and such indemnifying party or such Affiliate, and in that event the
fees and expenses of one such separate counsel for all such
indemnified parties shall be paid by the indemnifying party. An
indemnified party will not settle any claim or action for which he or
it is being indemnified hereunder unless it is first approved in
writing by the indemnifying party, such approval not to be
unreasonably withheld. The indemnifying party may not agree to any
settlement of any such claim or
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action which provides for any remedy or relief other than monetary
damages for which the indemnifying party shall be responsible
hereunder, without the prior written consent of the indemnified party,
which consent shall not be unreasonably withheld. In any action
hereunder as to which the indemnifying party has assumed the defense
thereof with counsel reasonably satisfactory to the indemnified party,
the indemnified party shall continue to be entitled to participate in
the defense thereof, with counsel of its own choice, but, except as
set forth above, the indemnifying party shall not be obligated
hereunder to reimburse the indemnified party for the costs thereof. In
all instances, the indemnified party shall cooperate fully with the
indemnifying party or its counsel in the defense of such claim or
action.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to herein, 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 loss, claim, damage or
liability, or action in respect thereof, in such proportion as shall
be appropriate to reflect the relative fault of the indemnifying party
on the one hand and the indemnified party on the other with respect to
the statements or omissions which resulted in such loss, claim, damage
or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault shall be
determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the indemnifying
party on the one hand or the indemnified party on the other, the
intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or
omission, but not by reference to any indemnified party's stock
ownership in the Company. In no event, however, shall a Holder be
required to contribute in excess of the amount of the net proceeds
received by such Holder in connection with the sale of Registrable
Securities in the offering which is the subject of such loss, claim,
damage or liability. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action
in respect thereof, referred to above in this paragraph shall be
deemed to include, for purposes of this paragraph, any legal or other
expenses reasonably incurred by such indemnifying party in connection
with investigating or defending any such action or claim. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
9. RULE 144. The Company shall take such measures and file such
information, documents and reports as shall be required by the SEC as a
condition to the availability of Rule 144 (or any successor provision). The
Company shall use its best efforts to cause all conditions to the availability
of Form S-3 (or any successor form thereto) under the Securities Act for the
filing of registration statements under this Agreement to be met as soon as
possible after the completion of the Public Offering.
10. HOLDBACK.
(a) Each Holder agrees by the acquisition of Registrable
Securities, if so required by the managing underwriter of any offering
of equity securities by the Company, not to sell, make any short sale
of, loan, grant any option for the purchase of, effect any public sale
or distribution of or otherwise dispose of any Registrable Securities
owned by such Holder, during the 30 days prior to and the 90 days
after the registration statement relating to such offering has become
effective (or such shorter period as may be required by the
underwriter), except as part of such underwritten offering.
Notwithstanding the foregoing sentence, each Holder subject to the
foregoing sentence shall be entitled to sell during the foregoing
period any securities of the Company owned by it in a private sale.
The Company may legend and may impose stop transfer instructions on
any certificate evidencing Registrable Securities relating to the
restrictions provided for in this Section 10.
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(b) The Company agrees, if so required by the managing
underwriter of any offering of Registrable Securities, not to sell,
make any short sale of, loan, grant any option for the purchase of
(other than pursuant to employee benefit plans), effect any public
sale or distribution of or otherwise dispose of any of its equity
securities during the 30 days prior to and the 90 days after any
underwritten registration pursuant to Section 2 or 3 hereof has become
effective, except as part of such underwritten registration and except
pursuant to registrations on Form X-0, X-0 or any successor or similar
forms thereto.
11. TRANSFER OF REGISTRATION RIGHTS.
(a) A Holder may transfer all or any portion of its rights
under this Agreement to any transferee of Registrable Securities that
represent (assuming the conversion, exchange or exercise of all
Registrable Securities so transferred that are convertible into or
exercisable or exchangeable for the Company's Voting Stock) at least
20% of the then issued and outstanding Voting Stock of the Company
(each, a "Permitted Transferee"); provided, however, that (i) with
respect to any transferee of less than a majority but more than 30% of
the then issued and outstanding Voting Stock, the Company shall not be
obligated to file a registration statement pursuant to a registration
request made by such transferee pursuant to Section 2 hereof on more
than two occasions, and (ii) with respect to any transferee of 30% or
less of the then issued and outstanding Voting Stock, the Company
shall not be obligated to file a registration statement pursuant to a
registration request made by such transferee pursuant to Section 2
hereof on more than one occasion. No transfer of registration rights
pursuant to this Section shall be effective unless the Company has
received written notice from the Holder of an intention to transfer at
least 20 days prior to the Holder's entering into a binding agreement
to transfer Registrable Securities (10 days in the event of an
unsolicited offer). Such notice need not contain proposed terms or
name a proposed Permitted Transferee. On or before the time of the
transfer, the Company shall receive a written notice stating the name
and address of any Permitted Transferee and identifying the number
and/or aggregate principal amount of Registrable Securities with
respect to which the rights under this Agreement are being transferred
and the scope of the rights so transferred. In connection with any
such transfer, the term HTE as used in this Agreement (other than in
Section 2(a)(iv)) shall, where appropriate to assign the rights and
obligations hereunder to such Permitted Transferee, be deemed to refer
to the Permitted Transferee of such Registrable Securities. HTE and
any Permitted Transferees may exercise the registration rights
hereunder in such priority, as among themselves, as they shall agree
among themselves, and the Company shall observe any such agreements of
which it shall have notice as provided above.
(b) After any such transfer, the transferring Holder shall
retain its rights under this Agreement with respect to all other
Registrable Securities owned by such transferring Holder.
(c) Upon the request of the transferring Holder, the Company
shall execute an agreement with a Permitted Transferee substantially
similar to this Agreement.
12. MISCELLANEOUS.
(a) INJUNCTIONS. Each party acknowledges and agrees that
irreparable damage would occur in the event that any of the provisions
of this Agreement was not performed in accordance with its specific
terms or was otherwise breached. Therefore, each party shall be
entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof in any court having jurisdiction, such remedy being
in addition to any other remedy to which such party may be entitled at
law or in equity.
(b) SEVERABILITY. If any term or provision of this Agreement
is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms and provisions set forth
herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated, and each of the parties
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shall use its best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated
by such term or provision.
(c) FURTHER ASSURANCES. Subject to the specific terms of this
Agreement, each of the parties hereto shall make, execute, acknowledge
and deliver such other instruments and documents, and take all such
other actions, as may be reasonably required in order to effectuate
the purposes of this Agreement and to consummate the transactions
contemplated hereby.
(d) WAIVERS, ETC. Except as otherwise expressly set forth in
this Agreement, no failure or delay on the part of either party in
exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a
right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. Except as otherwise expressly
set forth in this Agreement, no modification or waiver of any
provision of this Agreement nor consent to any departure therefrom
shall in any event be effective unless the same shall be in writing
and signed by an authorized officer of each of the parties, and then
such waiver or consent shall be effective only in the specific
instance and for the purpose for which given.
(e) ENTIRE AGREEMENT. This Agreement contains the final and
complete understanding of the parties with respect to its subject
matter. This Agreement supersedes all prior agreements and
understandings between the parties, whether written or oral, with
respect to the subject matter hereof. The paragraph headings contained
in this Agreement are for reference purposes only, and shall not
affect in any manner the meaning or interpretation of this Agreement.
(f) COUNTERPARTS. For the convenience of the parties, this
Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original but all of which together shall be
one and the same instrument.
(g) AMENDMENT. This Agreement may be amended only by a
written instrument duly executed by an authorized officer of each of
the parties.
(h) NOTICES. Unless expressly provided herein, all notices,
claims, certificates, requests, demands and other communications
hereunder shall be in writing and shall be deemed to be duly given (i)
when personally delivered or (ii) if mailed registered or certified
mail, postage prepaid, return receipt requested, on the date the
return receipt is executed or the letter refused by the addressee or
its agent or (iii) if sent by overnight courier which delivers only
upon the signed receipt of the addressee, on the date the receipt
acknowledgment is executed or refused by the addressee or its agent or
(iv) if sent by facsimile or other generally accepted means of
electronic transmission, on the date confirmation of transmission is
received (provided that a copy of any notice delivered pursuant to
this clause (iv) shall also be sent pursuant to clause (ii) or (iii)),
addressed as follows or sent by facsimile to the following number (or
to such other address or facsimile number for a party as it shall have
specified by like notice):
(i) if to HTE, to:
HTE, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxx 00000
Attention: L.A. Gortno, Jr.,
Executive Vice President
(ii) if to the Company, to:
XxxxxxXxxx.xxx., Inc.
0000 Xxxxxxxx Xxxx
Xxxxx X
Xxxxxxxx, Xxxxxxx 00000
Attention: O. F. Xxxxx, President and CEO
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(iii) if to a Holder of Registrable Securities, to
the name and address as the same appear in the security
transfer books of the Company, or to such other address as
either party (or other Holders of Registrable Securities)
may, from time to time, designate in a written notice in a
like manner.
(i) GOVERNING LAW. This agreement shall be governed by and
Construed in accordance with the laws of the state of florida, without
regard To the conflicts of laws principles thereof.
(j) ASSIGNMENT. Except as specifically provided herein, the
parties may not assign their rights under this Agreement. The Company
may not delegate its obligations under this Agreement.
(k) CONFLICTING AGREEMENTS. The Company shall not hereafter
grant any rights to any person to register securities of the Company,
the exercise of which would conflict with the rights granted to the
Holders of the Registrable Securities under this Agreement. The
Company shall not hereafter grant to any person demand registration
rights permitting it to exclude the Holders from including Registrable
Securities in a registration on behalf of such person on a basis more
favorable than that set forth in Section 2(d) hereof with respect to
the Holders.
IN WITNESS WHEREOF, HTE and the Company have caused this Agreement to
be duly executed by their authorized representative as of the date first above
written.
HTE, INC.
By: /s/ X. X. Xxxxxx, Jr.
-------------------------------------
Name: X. X. Xxxxxx, Jr.,
Title: Executive Vice President
XXXXXXXXXX.XXX, INC.
By: /s/ O. F. Xxxxx
-------------------------------------
Name: O. F. Xxxxx
Title: President and CEO
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