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EXHIBIT 10.17.2
SECOND AMENDED AND RESTATED
AGREEMENT OF COMMITMENT TO EXERCISE RIGHTS
THIS AGREEMENT is entered into this as of the 7th day of March,
2000 by and among XxxxxxXxxx.xxx, Inc., a Florida corporation (the "Company")
and O. F. Xxxxx ("Xxxxx"), X. X. Xxxxxx, Jr. ("Xxxxxx"), Xxxxxxx X. Xxxxxx
("Xxxxxx"), Xxxxxxx Xxxx North ("North"), Xxxxxx X. Xxxxxx ("Jordan") and
Xxxxxx X. Xxxxx ("Xxxxx") (each of Ramos, Gornto, Xxxxxx, North, Jordan and
Moses a "Purchaser" and collectively the "Purchasers").
RECITALS:
WHEREAS, the Company proposes to issue rights to purchase its common
stock, par value $.0001 per share (the "Common Stock"), pursuant to a
registration statement on Form S-1 filed with the Securities and Exchange
Commission in December 1999 (the "Rights Offering");
WHEREAS, the Company and the Purchasers entered into that certain
Agreement of Commitment to Exercise Rights, dated as of December 21, 1999 (the
"Commitment Agreement"), and that certain Amended and Restated Agreement of
Commitment to Exercise Rights, dated as of February 7, 2000 (the "Amended
Commitment");
WHEREAS, the Purchasers will be issued rights to purchase restricted
shares of common stock pursuant to the Rights Offering;
WHEREAS, pursuant to the Amended Commitment Agreement, the Company and
the Purchasers amended and restated the Commitment Agreement to clarify, among
other things, that the Common Stock to be issued to the Purchasers upon exercise
of Rights under Sections 2(a) and 2(b) of this Commitment Agreement will not be
registered as part of the Rights Offering and will instead be issued as
restricted securities pursuant to an exemption from registration provided by
Section 4(2) of the Securities Act of 1933, as amended (the "Securities Act");
and
WHEREAS, the Company and the Purchasers desire to further amend and
restate this Commitment Agreement to clarify the number of Rights to which each
Purchaser is entitled.
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto do hereby agree as follows:
1. Recitals. The foregoing Recitals are true and correct and are
incorporated herein by this reference.
2. Commitment to Exercise Rights and Subscribe for Shares.
(a) Each Purchaser represents that as of the date hereof he
holds H.T.E., Inc. shares and/or stock options which would entitle him to
rights (pursuant to the Rights Offering) to purchase Common Stock in the
following amounts and agrees on his own behalf that he shall exercise his
rights to subscribe for the total number of shares of Common Stock set forth
opposite his name below:
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Purchaser Shares of Common Stock
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Xxxxx 222,924 shares
Xxxxxx 63,100 shares
Xxxxxx 344,000 shares
North 10,964 shares
Moses 15,833 shares
(b) In addition to the commitment set forth in subsection
(a) above, each Purchaser further agrees on his own behalf that effective on the
closing date of the Rights Offering (the "Closing Date"), he shall exercise
rights to subscribe for the total number of additional shares of Common Stock
("Additional Shares") set forth opposite such Purchaser's name below, and in the
order of priority below, in the event not all shares of Common Stock are
subscribed for in the Rights Offering:
(i) First, North shall acquire the lesser of: (X) 150,000
Additional Shares or (Y) the number of shares of unsubscribed Common Stock
available on the Closing Date.
(ii) Second, Jordan shall acquire the lesser of: (X) 100,000
Additional Shares or (Y) the number of shares of unsubscribed Common Stock
available on the Closing Date, less the Additional Shares acquired by North.
(iii) Third, Xxxxxx shall acquire the lesser of: (X) 50,000
Additional Shares or (Y) the number of shares of unsubscribed Common Stock
available on the Closing Date, less the Additional Shares acquired by North and
Jordan.
(iv) Fourth, Jordan shall acquire the lesser of (X) 150,000
additional shares or (Y) the number of shares of unsubscribed Common Stock
available on the Closing Date, less the Additional Shares acquired by North,
Jordan and Xxxxxx under clauses (i) through (iii) immediately above.
(v) Fifth, Xxxxx and North shall acquire the lesser of (X)
204,500 Additional Shares and 64,068 Additional Shares, respectively, or (Y)
the number of shares of unsubscribed Common Stock available on the Closing
Date, less the Additional Shares acquired by North, Jordan, and Xxxxxx under
clauses (i) through (iv) immediately above. The purchase of Additional Shares
under clause (Y) immediately preceding this sentence shall be made pro rata
between Xxxxx and North.
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3. Mechanics of Payment for Shares.
(a) With respect to the shares acquired under subsection
2(a), above, the Purchasers shall exercise and pay for such shares in
accordance with the terms of the Rights Offering.
(b) With respect to the purchase of Additional Shares under
Section 2(b), above, on the Closing Date, the Company shall notify the
applicable Purchasers of the number of Additional Shares that they are
obligated to purchase under subsections 2(b)(i) through (v). Within three
(3) business days of such notice (which shall be transmitted by facsimile and
shall be deemed received on the date sent), the Purchasers acquiring Additional
Shares shall deliver the full amount of the subscription price to the Company
by wire (pursuant to wiring instructions provided by the Company) or other good
funding mechanism approved by the Company.
4. Representations and Warranties. Each Purchaser hereby
severally represents, warrants and covenants to the Company that, in connection
herewith:
(a) The Purchaser is an accredited investor as that term is
defined in Section 501(a) under Registration D promulgated by the Securities
and Exchange Commission under the Securities Act.
(b) Review and Evaluation of Information regarding the
Company. The Purchaser has had an opportunity to examine the governing
instruments and the material disclosure and other documents and records of the
Company. The Purchaser has had an opportunity to ask questions and receive
answers from the Company and from representatives of the Company concerning the
Company's financial condition and business and to obtain such other information
that he has deemed necessary to make a fully informed decision.
(c) Purchaser's Financial Experience. The Purchaser is
sufficiently experienced in financial and business matters to be capable of
evaluating the merits and risks of its/his investment in the Common Stock. The
Purchaser is familiar with the nature and risks attending investments.
(d) Suitability of Investment. The Purchaser understands that
the shares of Common Stock are speculative investments and involve a high
degree of risk, including but not limited to: there is no guarantee of success
of the business of the Company; he may not receive any return (economic or
otherwise) on his investment, and management and the majority shareholders of
the Company have extreme latitude and generally, the sole discretion, to
determine the financial picture, operations and potential dissolution of the
Company. The Purchaser has evaluated the merits and risks of the Purchaser's
proposed investment in the Common Stock, including those risks particular to
the Purchaser's personal situation, and he has determined that this investment
is suitable for the Purchaser. The Purchaser has adequate financial resources
for an investment of this character, and, at this time, the Purchaser could
bear a complete loss of his investment. Further, the Purchaser will continue to
have, after making his investment in the Common Stock, adequate means of
providing for his current needs, the needs of those dependent on him, and
possible personal contingencies.
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(e) Investment Intent. The Purchaser is purchasing the Common
Stock for investment purposes only and for his own account, and has no present
commitment, agreement or intention to sell, distribute or otherwise dispose of
any of them or to enter into any such commitment or agreement.
(f) No Public Market for the Common Stock. The Purchaser
understands that there is currently no public market for the Common Stock and
that even if a public market were to exist, there is no certainty that a public
market could be sustained or that the Common Stock could be easily liquidated.
(g) Rule 144. The Purchaser understands that he is an
"affiliate" of the Company as such term is defined in Rule 144 promulgated
under the Securities Act. The Purchaser also understands that the Common Stock
acquired by Purchaser will not be registered in the Rights Offering and for
resale purposes will be subject to the requirements and restrictions of Rule
144. Purchaser is familiar with Rule 144, promulgated under the Securities Act,
which, in substance, permits limited public sale of "restricted securities"
acquired, directly or indirectly from the issuer thereof, in a nonpublic
offering, subject to the satisfaction of certain conditions. Rule 144 requires,
among other things: (1) that the resale occur not less than one year after the
party has purchased, and made full payment for, within the meaning of Rule 144,
the securities to be sold; and, in the case of an affiliate, or of a
nonaffiliate who has held the securities less than two years, (2) the
availability of certain public information about the Company, (3) the sale must
be made through a broker in an unsolicited "broker's transaction" or in
transactions directly with a market maker (as that term is defined under the
Exchange Act), and (4) the amount of securities being sold during any three
month period must not exceed the greater of (i) one percent (1%) of the then
issued and outstanding common stock of the Company or (ii) the average trading
volume of the common stock of the Company during the four weeks immediately
preceding the proposed sale.
(h) Non-Reliance Regarding Tax Consequences. The Purchaser is
not relying on the Company or any representation contained herein with respect
to the tax or economic effect of his investment in the Common Stock. The
Purchaser has reviewed with the Purchaser's own tax advisors the federal,
state, local and foreign tax consequences of this investment and the
transactions contemplated by this Agreement. The Purchaser is relying solely on
such advisors and not on any statements or representations of the Company or
any of its representatives. The Purchaser understands that he shall be
responsible for the Purchaser's own tax liability that may arise as a result of
this investment or the transactions contemplated by this Agreement. The
Purchaser understands that Section 83 of the Internal Revenue Code of 1986, as
amended (the "Code"), taxes as ordinary income the difference between the
purchase price for the Common Stock and the fair market value of the Common
Stock as of the date any restrictions on the Common Stock lapse.
(i) Prohibitions on Cancellation, Termination, Revocation,
Transferability, and Assignment. The Purchaser hereby acknowledges and agrees
that, except as may be specifically provided herein or by applicable law, he is
not entitled to cancel, terminate, or revoke this Agreement. The Purchaser
further agrees that he may not transfer or assign its rights or obligations
under this Agreement without the written consent of the Company.
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(j) Authority to Enter into Agreement. The Purchaser has the
full right, power and authority to execute and deliver this Agreement and
perform his obligations hereunder, and when executed and delivered, this
Agreement will constitute a valid and legally binding obligation of such
Purchaser.
(k) Legends. Each certificate representing the Common Stock
may be endorsed with the following legends:
The securities represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933, as amended, or
qualified under the laws of any state. Such shares may
not be sold or transferred in the absence of such
registration or such qualification unless the transfer is
in accordance with Rule 144 or similar rule or unless the
corporation receives an opinion of counsel reasonably
acceptable to it stating that such sale or transfer is
exempt from the registration and prospectus delivery
requirements of said act and any applicable state
securities laws. Copies of the agreement covering the
purchase of these shares and restricting their transfer
may be obtained at no cost by written request made by the
holder of record of this certificate to the secretary of
the corporation at the principal executive offices of the
corporation.
5. Representations and Warranties of the Company. The Company
hereby represents, warrants and covenants to the Purchaser that, in connection
herewith:
(a) Ownership of Shares. The Company is the sole beneficial
and record owner of the Common Stock and that the Company has good, clear and
marketable title to the Common Stock, free of any liens, claims, contractual
restrictions, pledges, security interests or other encumbrances.
(b) Authority to Enter into Agreement. The Company has the
full right, power and authority to execute and deliver this Agreement and
perform his obligations hereunder.
6. Indemnification.
(a) The Company shall indemnify the Purchaser and hold him
harmless, upon demand, from and against any losses, damages, expenses or
liabilities, including without limitation reasonable attorneys' fees and
expenses, which the Purchaser may sustain, suffer or incur arising from or in
connection with the Company's breach of any covenant, representation, warranty,
agreement, obligation or undertaking hereunder. This indemnity shall survive
the closing of the transactions hereunder.
(b) The Purchaser shall indemnify the Company and hold him
harmless, upon demand, from and against any losses, damages, expenses or
liabilities, including without limitation reasonable attorneys' fees and
expenses, which the Company may sustain, suffer or incur arising
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from or in connection with the Purchaser's breach of any covenant,
representation, warranty, agreement, obligation or undertaking hereunder. This
indemnity shall survive the closing of the transactions hereunder.
7. Governing Law; Jurisdiction. This Agreement will be governed
by, construed and enforced in accordance with the laws of the State of Florida.
8. Entire Agreement; Amendment. This Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes and terminates any prior communication, agreement or
understanding, whether written or oral. This Agreement may be modified only by
a writing signed by all parties.
9. Notices. Except in instances where notice is otherwise
provided for in this Agreement, notices required to be given under this
Agreement shall be given in writing and hand delivered, or mailed by registered
or certified mail, return receipt requested, or sent by telecopier to 0000
Xxxxxxxx Xxxx, Xxxxx X, Xxxxxxxx, Xxxxxxx 00000, in the case of the Company,
and at the addresses set forth in the records of the Company, in the case of
the Purchaser. The date of delivery shall be the date received if delivered by
hand or sent by telecopier or facsimile, or within three (3) days of mailing,
if mailed. Any party may change the address to which notice shall be delivered
or mailed by notice duly given.
10. Benefits. This Agreement shall inure to the benefit of, and
be binding upon, the parties hereto and their respective heirs, beneficiaries,
legal representatives, successors, and assigns (including successive as well
immediate successors to and assigns of said parties).
11. Severability. In the event that any of the provisions of this
Agreement, or portions thereof, are held to be unenforceable or invalid by any
court of competent jurisdiction, the validity and enforceability of the
remaining provisions, or portions thereof, shall not be affected thereby.
12. Section Headings. The section headings contained herein are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
13. Execution in Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which
together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first set forth above.
THE COMPANY:
XXXXXXXXXX.XXX, INC.
By: /S/ O.F. XXXXX
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Name: O.F. XXXXX
Title: PRESIDENT AND
CHIEF EXECUTIVE OFFICER
PURCHASERS:
/S/ O.F. XXXXX
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O.F. XXXXX
/S/ X.X. XXXXXX, JR.
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X.X. XXXXXX, JR.
/S/ XXXXXXX X. XXXXXX
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XXXXXXX X. XXXXXX
/S/ XXXXXX X. XXXXX
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XXXXXX X. XXXXX
/S/ XXXXXXX XXXX NORTH
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XXXXXXX XXXX NORTH
/S/ XXXXXX X. XXXXXX
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XXXXXX X. XXXXXX
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