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EXHIBIT 4.4
SUBSCRIPTION AGENT AGREEMENT
THIS AGREEMENT is entered into as of _________, 2000 by and between
▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Florida corporation (the "Company") and Continental
Stock Transfer and Trust Company (the "Subscription Agent").
WHEREAS, the Company is a wholly-owned subsidiary of H.T.E., Inc., a
Florida corporation ("HTE");
WHEREAS, the Company intends to issue (the "Rights Offering") to (i)
holders of HTE's common stock as of _________, 2000 ("Eligible HTE
Shareholders"), (ii) holders of HTE stock options as of December 16, 1999 who
are also employees or directors of HTE (or a wholly-owned subsidiary) as of
____________, 2000 ("Eligible HTE Optionholders"), and (iii) employees of HTE
(or a wholly-owned subsidiary) as of ___________, 2000 ("Eligible HTE
Employees" and, collectively with (i) and (ii) above, the "Eligible Rights
Holders"), rights ("Rights") to purchase one share of common stock, par value
$.0001 per share, of the Company (the "Common Shares") for each Right held; and
WHEREAS, the Company desires the Subscription Agent to act on the
Company's behalf, and the Subscription Agent is willing so to act, in
connection with the issuance, and distribution of the Rights, collection of
funds from Rights holders exercising Rights, and issuance and delivery of
Common Shares upon the exercise of the Rights.
NOW THEREFORE, in consideration of the promises and mutual covenants
set forth herein, the parties agree as follows:
1. Definitions. As used in this Agreement, the following terms
have the following meanings:
(a) "Basic Subscription" means the right of Eligible Rights
Holders to subscribe for and purchase Common Shares through the
exercise of Rights at the rate of one Common Share for each Right
held.
(b) "Common Shares" means the shares of common stock, par
value $.0001 per share, of the Company.
(c) "Company" means ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Florida
corporation.
(d) "Eligible HTE Employees" means all employees of HTE (or a
wholly-owned subsidiary) as of ______________, 2000.
(e) "Eligible HTE Optionholders" means all persons holding
options to purchase common stock of HTE as of December 16, 1999 who
are also employees or directors of HTE (or a wholly-owned subsidiary)
as of ______________, 2000.
(f) "Eligible HTE Shareholders" means all shareholders of HTE
as of ____________, 2000.
(g) "Eligible Rights Holders" means, collectively, all
Eligible HTE Employees, all Eligible HTE Optionholders and all
Eligible HTE Shareholders.
(h) "Foreign Holder" means an Eligible Shareholder or an
Eligible HTE Optionholder having an address outside of the United
States of America (including the District of Columbia, territories
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and possessions) or having an A.P.O. or F.P.O. address, as shown on
the stock transfer books maintained by the Subscription Agent in its
capacity as the Transfer Agent and Registrar of the HTE common stock.
(i) "Expiration Time" means 5:00 p.m., Eastern Standard Time,
on __________, 2000 or on such other date as the Company may
determine.
(j) "Offering Period" means the period commencing on
_________, 2000 and ending at the Expiration Time.
(k) "Prospectus" means the Company's prospectus dated
_________, 2000 pertaining to the Rights Offering including the
documents incorporated by reference therein, as the same may from time
to time be supplemented or amended.
(l) "Rights" means the subscription rights issued by the
Company, each of which entitles Eligible Rights Holders to subscribe
for and purchase one Common Share for Right held, at a Subscription
Price of $____ per share.
(m) "Subscription Agent" means Continental Stock Transfer and
Trust Company.
(n) "Subscription Certificate" means the certificate
evidencing the Rights.
(o) "Subscription Price" means $1.00 per share.
2. Form of Subscription Certificates. The Subscription
Certificates shall be substantially in the form attached to this Agreement as
Appendix A. Each Subscription Certificate shall be signed by duly authorized
officers of the Company, dated the date of issue (whether upon original
issuance or in lieu of transferred, exchanged, mutilated, destroyed, lost or
stolen Subscription Certificates) and countersigned by the Subscription Agent.
All signatures may be facsimile signatures.
3. Issuance of Subscription Certificates. The Subscription Agent
shall issue and deliver (by first class United States mail, postage prepaid) to
each Eligible Rights Holder (other than Foreign Holders) a Subscription
Certificate evidencing his Rights as follows: (i) each Eligible HTE Shareholder
shall receive one Right for each share of HTE common stock held; (ii) each
Eligible HTE Optionholder shall receive (A) one Right for each share of HTE
common stock he has a vested option to acquire, and (B) with respect to each
share of HTE common stock he has an unvested option to acquire, 3/4 of a Right
and an option to purchase 1/4 of a Common Share; and (iii) each Eligible HTE
Employee shall receive 200 Rights. The Subscription Agent shall not issue
fractional Rights; the number of Rights issued shall be rounded up or down to
the nearest whole number. No Subscription Certificates shall be issued before
or after the Offering Period. All Subscription Certificates surrendered to the
Subscription Agent upon exercise shall be canceled by the Subscription Agent
and thereafter shall be retained by the Subscription Agent for a period of not
less than six years or such shorter period of time as the Company may permit.
Upon expiration of the retention period, the canceled Subscription Certificates
shall be delivered to the Company or destroyed by the Subscription Agent, as
directed by the Company.
4. Foreign Holders. The Subscription Agent shall refrain from
delivering Subscription Certificates to Foreign Holders, and shall hold such
Subscription Certificates for the account of Foreign Holders subject to such
Stockholder making satisfactory arrangements with the Subscription Agent for
the exercise or other disposition of the Rights evidenced thereby, and shall
follow the instructions of such Stockholder for the exercise of such Rights if
such instructions are received prior to the Expiration Time.
5. Delivery of Prospectus and Other Documents. The Subscription
Agent shall deliver to each Eligible Rights Holder, along with originally
issued Subscription Certificates (except as provided in Section 4), (i) a
letter from the Chief Executive Officer or President of HTE to all Eligible
Rights Holders, (ii) a Prospectus, (iii) Instructions as to Use of the
Subscription Certificates, (iv) a return envelope addressed to the Subscription
Agent, and (vi) such other documents and information as the Company may
provide. The Subscription Agent shall also
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provide copies of the Prospectus and other documents prepared by the Company to
Eligible Rights Holders, and other persons upon request.
(a) The Company will provide the Subscription Agent with a
sufficient number of Prospectuses as the Subscription Agent may
require.
(b) The Subscription Agent shall provide a sufficient number
of Subscription Certificates as required to distribute to Eligible
Rights Holders and to replace lost, destroyed, mutilated or stolen
Subscription Certificates.
(c) The Company has provided to the Subscription Agent a form
of letter to Foreign Holders, which shall be delivered only to Foreign
Holders, along with the Prospectus.
(d) The Company has provided to the Subscription Agent the
following documents that the Subscription Agent shall deliver to
brokers, dealers, commercial banks, trust companies and other nominee
holders of Subscription Certificates: (i) a letter to Brokers,
Dealers, Commercial Banks, Trust Companies and Other Nominees; (ii) a
letter to the clients of nominee holders described in clause (i);
(iii) a letter to Foreign Holders; (iv) a Notice of Guaranteed
Delivery; and (v) a Nominee Holder Certification.
6. Exercise. Rights may be exercised at any time during the
Offering Period upon the terms and conditions set forth in the Prospectus and
in this Agreement.
(a) Rights may be exercised by completing and executing the
exercise portion of the Subscription Certificate and delivering it to
the Subscription Agent along with payment of the Subscription Price
for the aggregate number of Common Shares subscribed for prior to the
Expiration Time.
(b) A subscription will be accepted by the Subscription Agent
if, prior to the Expiration Time, the Subscription Agent has received
(i) payment of the full Subscription Price for the Common Shares
subscribed for in the Basic Subscription, and (ii) a Notice of
Guaranteed Delivery by facsimile (telecopy) or otherwise from a bank,
trust company, New York Stock Exchange member or member of another
national securities exchange guaranteeing delivery of a properly
completed and executed Subscription Certificate. The Subscription
Agent will not honor a Notice of Guaranteed Delivery unless a properly
completed and executed Subscription Certificate is received by the
Subscription Agent by the close of business on the third New York
Stock Exchange trading day after the Expiration Time.
(c) The Subscription Price shall be paid in United States
dollars, by (i) check or draft drawn on a United States bank, or an
postal, telegraphic or express money order payable to the Subscription
Agent, or (ii) by wire transfer of same day funds to an account
maintained by the Subscription Agent for the purpose of accepting
subscriptions the __________ Bank, Account No. ________
(▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.), ABA No. ______________, in accordance with the
Wire instructions attached to this Agreement as Appendix B.
(d) Once an Eligible Rights Holder has exercised Rights, such
exercise may not be revoked or rescinded.
(e) If an Eligible Rights Holder does not indicate the number
of Rights being exercised in the Basic Subscription, or does not
deliver full payment of the Subscription Price for the number of
shares indicated as being subscribed through the exercise of Rights in
the Basic Subscription, then such Eligible Rights Holder will be
deemed to have exercised Rights to purchase the maximum number of
Common Shares determined by dividing the total Subscription Price paid
by the Subscription Price per share, but not in excess of the number
of Common Shares such holder may purchase through the exercise of
Rights in the Basic Subscription.
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(f) If an Eligible Rights Holder does not indicate the number
of Rights being exercised, but submits payment for more shares than
may be purchased through the exercise of such Eligible Rights Holder's
Rights in the Basic Subscription, the excess payment received from
such Eligible Rights Holder will be returned to such Eligible Rights
Holder without interest or deduction.
7. Power of Attorney. The Company hereby constitutes and
appoints the Subscription Agent as the Company's true and lawful attorney
in-fact, with full power in such capacity to endorse, deposit, negotiate, and
invest on behalf and for the account of the Company, in accordance with the
written instructions provided by the Company, checks, drafts, money orders,
wire transfers or other payments received by the Subscription Agent as a
payment of the Subscription Price upon the exercise of Rights in the Basic
Subscription.
8. Escrow and Investment of Funds. The Subscription Agent shall:
(a) Maintain a record of the date, amount of each payment of
the Subscription Price received upon the exercise of Rights in the
Basic Subscription, and the name and address of the Eligible Rights
Holder by whom or on whose behalf payment was made.
(b) Aggregate all payments received upon the exercise of
Rights in the Basic Subscription and deposit such payments in one or
more bank accounts, or invest such payments in Treasury bills or other
investments designated in writing by the Company, as soon as
practicable after receipt of such payments.
(c) Maintain a record of the number of Rights issued to each
Foreign Holder.
(d) Keep all funds deposited and invested in accounts in the
name of the Company for the benefit of the Company.
(e) Return as promptly as practicable to the Eligible Rights
Holder who made such payment, any payment of the Subscription Price in
the Basic Subscription not accepted by the Company for any reason.
9. Payment of Funds to the Company. Funds representing payment
of the Subscription Price in the Basic Subscription (including interest earned
thereon) shall be paid to the Company by wire transfer to such account and
according to such instructions as the Company may deliver to the Subscription
Agent in writing. Unless changed by subsequent written instructions, the
Subscription Agent shall follow the wiring instructions attached to this
Agreement as Appendix B. Such wire transfer of funds to the Company shall be
made promptly following the Expiration Time, at which time all funds received
by the Subscription Agent from Rights holders shall be paid (together with
interest thereon) to the Company.
10. Reports. The Subscription Agent shall deliver daily to the
Company a written report showing the following: (i) the number of Rights
exercised in the Basic Subscription on such day, and the aggregate number of
Rights exercised in the Basic Subscription through such date; and (ii) the
amount of funds received on such day in payment of the Subscription Price in
the Basic Subscription, and the aggregate amount of funds on deposit or
invested for the account of the Company from payment of the Subscription Price
in the Basic Subscription through such date.
11. Issuance of Common Shares. Promptly after the receipt and
acceptance of properly exercised Subscription Certificates and receipt of
payment of the Subscription Price for Common Shares in the Basic Subscription,
the Subscription Agent shall issue and deliver to the Eligible Rights Holder so
exercising Rights a stock certificate evidencing the aggregate of the number of
Common Shares purchased in the Basic Subscription.
12. Validity and Form of Subscriptions. All questions concerning
the timeliness, validity, form and eligibility of any exercise of Rights in the
Basic Subscription will be determined by the Company, whose
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determination will be final and binding. The Subscription Agent shall examine
the Subscription Certificates it receives to ascertain whether they appear to
have been completed and executed in accordance with the Prospectus and the
Instructions. In the event that the Subscription Agent determines that the
Subscription Certificate does not appear to have been properly completed or
executed, or where the Subscription Certificates do not appear to be in proper
form for subscription, or any other irregularity in connection with the
subscription appears to exist, the Subscription Agent will follow its regular
procedures to attempt to cause such irregularity to be corrected. The
Subscription Agent is not authorized to waive any irregularity in connection
with the subscription, unless it has received from the Company notification,
duly dated and signed by an authorized officer of the Company, indicating that
any irregularity in the Subscription Certificate has been cured or waived and
that such Subscription Certificate has been accepted by the Company. The
Subscription Agent will promptly notify the Company in writing of all defects
in the exercise of any Rights in the Basic Subscription. Subscription
Certificates and funds received by the Subscription Agent that are not properly
executed or submitted, and as to which all irregularities have not been timely
waived or cured, shall be returned by the Subscription Agent to the Eligible
Rights Holder who submitted such Subscription Certificate and/or payment. Such
return shall be made by either first class mail under a blanket surety bond or
insurance protecting the Subscription Agent and the Company from losses or
liabilities arising out of the non-receipt or nondelivery of Subscription
Certificates or by registered mail insured separately for the value of such
Subscription Certificates, and if determined to be required by the Company,
shall include a letter of notice to be furnished by the Company explaining the
reasons for the return of the Subscription Certificates and other documents.
13. Amendment, Extension or Termination of the Rights Offer. The
Company reserves the right, in its sole discretion, to: (a) terminate the offer
of Common Shares through the Rights prior to delivery of the Common Shares for
which Eligible Rights Holders have subscribed pursuant to the exercise of
Rights in the Basic Subscription; (b) extend the Expiration Time to a later
date and time; or (c) amend or modify the terms of the Rights. If the Company
amends the terms of the Rights, an amended Prospectus will be distributed to
holders of record of Rights and to holders of Rights who have previously
exercised Rights. All holders of Rights who exercised their Rights prior to
such amendment or within four business days after the mailing of the amended
Prospectus will be given the opportunity to confirm the exercise of their
Rights by executing and delivering a consent form.
14. Loss or Mutilation. Upon receipt by the Company and the
Subscription Agent of evidence, satisfactory to them, of the ownership and
loss, theft, destruction or mutilation of any Subscription Certificate, and in
the case of loss, theft or destruction, receipt of indemnity satisfactory to
the Company and the Subscription Agent, and in the case of mutilation upon
surrender and cancellation of the mutilated Subscription Certificate, the
Subscription Agent shall deliver in place of such lost, stolen, destroyed or
mutilated Subscription Certificate a new Subscription Certificate representing
an equal aggregate number of Rights. Eligible Rights Holders requesting such
substitute Subscription Certificates shall also comply with such other
reasonable regulations, requirements or requests, and shall pay such reasonable
charges, as the Company or the Subscription Agent may prescribe.
15. Liability of Subscription Agent. The Subscription Agent shall
not, by issuing and delivering Subscription Certificates or stock certificates
evidencing Common Shares, or receiving or holding funds for the benefit of the
Company, or by any other act under this Agreement, be deemed to make any
representations as to the validity or value or authorization of the
Subscription Certificates or the Rights represented thereby or the Common
Shares issued upon the exercise of Rights, or whether the Common Shares issued
upon the exercise of Rights are fully paid and nonassessable. The Subscription
Agent shall not be (i) liable for any statement of fact made or contained in
this Agreement or in the Prospectus or in any documents prepared by the Company
in connection with the offer of Common Shares through the Rights, (ii) liable
for any action taken, suffered, or omitted by it in reliance upon any
Subscription Certificate or other document or instrument believed by it in good
faith to be genuine and to have been signed or presented by the proper party or
parties, (iii) responsible for any failure on the part of the Company to comply
with any of its covenants and obligations contained in this Agreement or in the
Subscription Certificates, or (iv) liable for any act or omission in connection
with the performance of its duties, obligations, covenants and agreements under
this Agreement, except for the Subscription Agent's own negligence, willful
breach or misconduct.
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16. Indemnification. The Company agrees to indemnify and hold
harmless the Subscription Agent from and against any and all losses, expenses,
and liabilities, including judgments, costs and reasonable attorneys' fees,
arising out of any act or omission of the Subscription Agent in the execution
or performance of its duties, obligations, covenants and agreements under this
Agreement, except for the Subscription Agent's own negligence, willful breach
or misconduct.
17. Compensation for Services. The Company agrees to pay the
Subscription Agent a fee of $______ for all services rendered by the
Subscription Agent under this Agreement, and to reimburse the Subscription
Agent for all reasonable out-of-pocket expenses incurred in performing its
duties under this Agreement.
18. Amendment; Modification; Waiver. This Agreement may be
amended, waived, discharged, or terminated in whole or in part only by a
written instrument signed by the party against whom enforcement of such
amendment, waiver, discharge, or termination is sought. Notwithstanding the
immediately preceding sentence, the parties shall supplement or amend this
Agreement to conform to any amendments or changes that the Company may make to
the terms and conditions of the Rights and the offer of the Common Shares
through the Rights.
19. Notices. All notices under this Agreement shall be in writing
and shall be sent by telecopier with a confirming copy sent by United States
mail, first class postage prepaid, or by air courier, delivery charges prepaid,
to an Eligible Rights Holder at the address shown on the registry books
maintained by the Subscription Agent, or to the parties at the following
telecopier numbers and addresses:
To the Company: ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
To the Subscription Agent: Continental Stock Transfer & Trust Company
▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ____________ Department
A notice sent by mail shall be deemed delivered on the fourth day after deposit
in the United States mail, postage prepaid, and addressed as aforesaid. Any
party may change its address or telecopier number for notice by giving notice
to the other party in the manner provided in this Section.
20. Delays or Omissions. No delay or omission to exercise any
right, power, or remedy accruing to any party to this Agreement, upon any
breach or default of any other party under this Agreement, shall impair any
such right, power, or remedy; nor shall it be construed to be a waiver of, or
an acquiescence in any such breach or default or any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character, on
the part of any party, of any breach or default under this Agreement, or any
waiver, on the part of any party, of any provisions or conditions of this
Agreement, must be made in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law and otherwise afforded to any party, shall be cumulative
and not alternative.
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21. Unenforceable Provisions. If all or part of any one or more
of the provisions contained in this Agreement is for any reason held to be
invalid, illegal, or unenforceable in any respect, the invalidity, illegality,
or unenforceability shall not affect any other provisions, and this Agreement
shall be equitably construed as if it did not contain the invalid, illegal, or
unenforceable provision.
22. Gender. Whenever appropriate in this Agreement, terms in the
singular form shall include the plural (and vice versa) and any gender form
shall include all others.
23. Section Headings. Section headings are for the convenience of
the parties and do not form a part of this Agreement.
24. Binding Effect; Parties. This Agreement shall be binding on
the Company, the Subscription Agent and their respective successors and
assigns; and nothing in this Agreement shall confer upon any other person or
entity any right, remedy, or claim, or impose upon any other person any duty,
liability, or obligation.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By:
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O.F. ▇▇▇▇▇, Chief Executive Officer
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By:
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[Name and Title]
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EXHIBIT 4.4.
APPENDIX A
FORM OF SUBSCRIPTION CERTIFICATE
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APPENDIX B
WIRE INSTRUCTIONS