1
Exhibit 4.01
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of October 25, 1996, by and between HNC SOFTWARE INC., a
Delaware corporation ("HNC"), and the persons and entities listed on Exhibit A
hereto (collectively, the "SHAREHOLDERS" and each individually, a "SHAREHOLDER")
who immediately prior to the Effective Time of the Exchange (as defined below)
are all of the shareholders of RETEK DISTRIBUTION CORPORATION, a British Virgin
Islands corporation ("RETEK").
A. Retek, HNC and the Shareholders have entered into an Exchange
Agreement dated as of October 25, 1996 (the "PLAN"), pursuant to which HNC will
acquire 100% of the outstanding shares of Retek and 100% of the outstanding
options to purchase shares of Retek in exchange for the issuance to the
Shareholders of shares of HNC Common Stock and cash and the issuance to the
holders of options to purchase shares of Retek stock of options to purchase
shares of HNC Common Stock, respectively (the "EXCHANGE").
B. As a condition precedent to the consummation of the Exchange,
Section 2.1.3 of the Plan provides that the Shareholders shall be granted Form
S-3 registration rights with respect to the shares of HNC Common Stock that are
issued to the Shareholders in the Exchange, subject to the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
1. REGISTRATION RIGHTS
1.1 CERTAIN DEFINITIONS. For purposes of this Agreement:
(a) 1933 Act. The term "1933 ACT" means the U.S.
Securities Act of 1933, as amended, or any successor law.
(b) 1934 Act. The term "1934 ACT" means the U.S.
Securities Exchange Act of 1934, as amended, or any successor law.
(c) Registration. The terms "REGISTER," "REGISTERED,"
and "REGISTRATION" refer to the registration effected by preparing and filing a
Form S-3 registration statement in compliance with the 1933 Act (a "registration
statement"), and the declaration or ordering of effectiveness of such
registration statement.
(d) Registrable Securities. The term "REGISTRABLE
SECURITIES" means: (i) the shares of HNC Common Stock that are issued to the
Shareholders pursuant to Section 2.1.1 of the Plan in exchange for shares of
Retek Common Stock that are issued and outstanding immediately prior to the
Closing (as defined in the Plan) and held by a Shareholder immediately prior to
such Closing; and (ii) any shares of HNC Common Stock that may be issued as a
dividend or other distribution (including shares of HNC Common Stock issued in a
subdivision and split of HNC's outstanding Common Stock) with respect to, or in
exchange for or in replacement of, all such shares of HNC Common Stock described
in clause (i) of this Section 1.1(d) that have been issued by HNC; excluding in
all cases, however, any such shares that are (x) registered under the 1933 Act;
(y) sold by a person in a transaction in which rights under this Agreement are
not
2
assigned in accordance with the terms of this Agreement; or (z) sold to the
public or sold pursuant to Rule 144 promulgated under the 1933 Act. Only shares
of HNC Common Stock shall be Registrable Securities. Except as provided in
clause (ii) of the first sentence of this Section 1.1(d), the term "Registrable
Securities" does not include: (i) any shares of HNC Common Stock acquired
outside the Exchange or (ii) any shares of HNC Common Stock issued or issuable
upon the exercise of HNC Options issued upon the conversion of outstanding Retek
Options in the Exchange pursuant to Section 2.2 of the Plan or upon the exercise
of any other HNC Options issued by HNC to any Shareholder.
(e) Holder. The term "HOLDER" means the original
holder of any Registrable Securities or any assignee of record of any
Registrable Securities to whom rights under this Agreement have been duly
assigned in accordance with the provisions of this Agreement.
(f) SEC. The term "SEC" or "COMMISSION" means the
U.S. Securities and Exchange Commission.
(g) Form S-3. The term "FORM S-3" means such
registration statement form under the 1933 Act as is in effect on the date of
this Agreement or any successor registration statement form under the 1933 Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by HNC with the
SEC.
(h) Rule 415. The term "RULE 415" means Rule 415
under the 1933 Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
(i) Terms from Plan. Capitalized terms used in this
Agreement but not defined in this Section 1 or elsewhere in this Agreement shall
have the meanings given them in the Plan.
-2-
3
1.2. SHELF REGISTRATION.
(a) As promptly as reasonably practicable following
the Closing of the Exchange (but not earlier than 20 days after the Closing of
the Exchange), and consistent with the requirements of applicable law, HNC shall
prepare and file with the SEC a registration statement on Form S-3 for an
offering to be made on a continuous basis pursuant to Rule 415 covering all of
the Registrable Securities (the "SHELF REGISTRATION"). HNC shall use its best
efforts to have such Shelf Registration declared effective as soon as
practicable and to keep the Shelf Registration continuously effective under the
1933 Act for a continuous period of time (such period of time being hereinafter
called the "EFFECTIVENESS PERIOD") commencing on the date the Shelf Registration
is declared effective under the 1933 Act by the SEC (the "EFFECTIVENESS DATE")
and ending on the later to occur of (i) the second anniversary of the
Effectiveness Date; or (ii) the second (2nd) anniversary of the first date on
which HNC publicly releases a report including financial statements of HNC that
include at least thirty (30) days of post-Exchange combined operating results of
HNC and Retek.
(b) If the Shelf Registration or a Subsequent
Registration (as defined below) ceases to be effective for any reason at any
time during the Effectiveness Period, then HNC shall use its best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall, within 45 days of such cessation of effectiveness, file
an amendment to the Shelf Registration seeking to obtain the withdrawal of the
order suspending the effectiveness thereof, or file an additional "shelf"
registration statement pursuant to Rule 415 covering all of the Registrable
Securities (a "SUBSEQUENT REGISTRATION"). If a Subsequent Registration is filed,
HNC shall use its best efforts to cause the Subsequent Registration to be
declared effective as soon as practicable after such filing and to keep such
registration statement continuously effective until the end of the Effectiveness
Period.
(c) Subject to the provisions of Section 1.2(h), HNC
shall supplement and amend the Shelf Registration if, as and when required by
the 1933 Act, the rules and regulations promulgated thereunder or the rules,
regulations or instructions applicable to the registration form used by HNC for
such Shelf Registration.
(d) Any sale of Registrable Securities pursuant to a
registration hereunder may be made only during a "Permitted Window" (as defined
below) and only in accordance with the method or methods of distribution of such
Registrable Securities as described in the registration statement for the Shelf
Registration (or Subsequent Registration, as applicable) (which methods of
distribution will be specified by the Holders in their Notice of Resale (as
defined below)). A Holder may also sell Registrable Securities in a bona fide
private offering if the selling Holder provides HNC with a written opinion of
counsel, satisfactory to counsel to HNC, that such offer and sale is an exempt
transaction under the 1933 Act and applicable state securities laws.
(e) There will be no more than three (3) Permitted
Windows during each of the first 12 months and the second 12 months of the
Effectiveness Period and there will be at least a 60-day interval between any
two Permitted Windows.
-3-
4
(f) No Shareholder will sell any Registrable
Securities, and no Permitted Window will commence, until after HNC has publicly
released a report including financial statements of HNC that include at least
thirty (30) days of post-Exchange combined operating results of HNC and Retek.
(g) During any calendar quarter during the
Effectiveness Period, the Shareholders, collectively, may not sell an amount of
Registrable Securities that, in the aggregate, exceeds three percent (3%) of the
outstanding shares of HNC Common Stock, as indicated in HNC's then most recent
published report.
(h) A "PERMITTED WINDOW" is a period of thirty (30)
consecutive calendar days commencing upon HNC's written notification to the
Shareholders in response to a Notice of Resale (as defined below) that the
prospectus contained in the registration statement is available to be used for
resales of Registrable Securities pursuant to the Shelf Registration. In order
to cause a Permitted Window to commence, a Holder or Holders of Registrable
Securities must first give written notice to HNC of its/their present intention
to sell some or all of its/their Registrable Securities pursuant to the Shelf
Registration and indicate the number of shares proposed to be sold (a "NOTICE OF
RESALE"). Upon receipt of such Notice of Resale (unless a certificate of the
President of HNC is delivered as provided in Section 1.3(b) below), HNC will
give written notice to the Holders as soon as practicable, but in no event more
than seven (7) business days after such receipt, that: (i) the prospectus
contained in the registration statement is current (it being acknowledged that
it may be necessary for HNC during this period to supplement the prospectus or
make an appropriate filing under the 1934 Act so as to cause the prospectus to
become current) and that the Permitted Window will commence on the date of such
notice by HNC; or (ii) HNC is required under the 1933 Act and the regulations
thereunder to amend the registration statement in order to cause the prospectus
to be current. In the event that HNC determines that an amendment to the
registration statement is necessary as provided above, it will file and cause
such amendment to become effective as soon as practicable; whereupon it will
notify the Shareholders that the Permitted Window will then commence. HNC shall
not be obligated to keep the registration statement current during any period
other than a Permitted Window. The provisions of this Section 1.2(h) are subject
and subordinate to the provisions of Section 1.2(i). If, pursuant to Section
1.3(b), HNC defers a Permitted Window, and the Holders withdraw their Notice of
Resale, then such withdrawal shall not count as a Permitted Window. The Holders
may elect to withdraw a request for registration pursuant to a Notice of Resale;
provided however, that if HNC has commenced preparation of any supplement or
amendment to the registration statement or any part thereof in response to such
Notice of Resale prior to receiving written notice from the Holders' of the
withdrawal of their request for registration, then the Holders will promptly
reimburse HNC for its actual costs and expenses incurred in preparing and/or
filing such supplement and/or amendment.
(i) If a Holder or any trustee or beneficiary of a
Holder is or becomes an employee of HNC or any subsidiary of HNC, then in such
event, notwithstanding any other provision of this Agreement, such Holder will
sell and dispose of Registrable Securities pursuant to the Shelf Registration or
any Subsequent Registration only during those time periods ("TRADING WINDOWS")
during which the officers and directors of HNC are permitted to make sales,
purchases or other trades in HNC's securities under HNC's then-current
securities trading policy applicable to HNC employees. When and if applicable,
HNC shall notify Holders in writing of the
-4-
5
commencement or expiration of each trading window within at least one (1)
trading day prior to the commencement or expiration of such trading window, as
applicable.
1.3 LIMITATIONS. Notwithstanding the provisions of Section 1.2
above, HNC shall not be obligated to effect any such registration, qualification
or compliance of Registrable Securities pursuant to this Agreement, or the
Holders shall not be entitled to sell Registrable Securities pursuant to the
registration statement, as applicable:
(a) if Form S-3 is not then available for
such offering by the Holders;
(b) if HNC shall furnish to the Holders a
certificate signed by the President of HNC stating that, in the good faith
judgment of the Board of Directors of HNC, it would be seriously detrimental to
HNC and its stockholders for such Permitted Window to be in effect at such time,
due, for example, to the existence of a material development or potential
material development involving HNC which HNC would be obligated to disclose in
the prospectus contained in the Shelf Registration, which disclosure would, in
the good faith judgment of the Board of Directors of HNC, be premature or
otherwise inadvisable at such time or would have a material adverse affect upon
HNC and its shareholders, in which event HNC will have the right to defer a
Permitted Window for a period of not more than sixty (60) days after receipt of
a Notice of Resale from the Holder or Holders pursuant to this Section 1.2;
provided, however, that HNC may so postpone a Permitted Window no more than two
(2) times per calendar year during each of the 1997 and 1998 calendar years (and
not more than once for each six (6) month period that the Effectiveness Period
is extended pursuant to the following proviso) and provided further, that if HNC
so postpones a Permitted Window, the Effectiveness Period of the Shelf
Registration shall be extended by a period of time equal to the period of
postponement (subject to the provisions of Sections 1.4 and 1.10 below). If HNC
defers a Permitted Window as provided herein and the Holders withdraw their
Notice of Resale, then such withdrawal shall not count as a Permitted Window.
(c) if HNC is acquired and its Common Stock
ceases to be publicly traded and in such acquisition of HNC the Holders receive,
in exchange for the Registrable Securities then held by them, cash and/or
securities that are registered under the 1933 Act or that may be traded without
restriction on transfer imposed by the 1933 Act, other than the restrictions on
transfer under paragraphs (c), (e), (f) and (g) of Rule 144 promulgated under
the 1933 Act, as such Rule is in effect on the date of this Agreement;
(d) in any particular jurisdiction in which
HNC would be required to qualify to do business or to execute a general consent
to service of process in effecting such registration, qualification or
compliance, unless HNC is already subject to service of process in such
jurisdiction; or
(e) if the SEC refuses to declare such
registration effective due to the participation of any particular Holder in such
registration (unless such Holder withdraws all such Holder's Registrable
Securities from such registration statement).
-5-
6
1.4 SHARES OTHERWISE ELIGIBLE FOR RESALE. HNC shall not be
obligated to effect or continue to keep effective any such registration,
registration statement, qualification or compliance of Registrable Securities
held by any particular Holder:
(a) if HNC or its legal counsel shall have
received a "no-action" letter or similar written confirmation from the SEC that
all the Registrable Securities originally issued to such Holder in the Exchange
and still then held by such Holder may be resold by such Holder within a three
(3) month period without registration under the 1933 Act pursuant to the
provisions of Rule 144 or Rule 145(d) promulgated under the 1933 Act (or
successor provisions), or otherwise;
(b) if legal counsel to HNC shall deliver a
written opinion to HNC, its transfer agent and the Holders, in form and
substance reasonably acceptable to HNC, to the effect that all the Registrable
Securities originally issued to such Holder in the Exchange and still then held
by such Holder may be resold by such Holder within a three (3) month period
without registration under the 1933 Act pursuant to the provisions of Rule 144
or Rule 145(d) promulgated under the 1933 Act, or otherwise; or
(c) after expiration or termination of the
Effectiveness Period.
1.5 EXPENSES. HNC shall pay all expenses incurred in
connection with the Shelf Registration and any Subsequent Registration
(excluding brokers' discounts and commissions), including without limitation all
filing, registration and qualification, printers' and accounting fees.
1.6 OBLIGATIONS OF HNC. Subject to Sections 1.2, 1.3 and 1.4
above, when required to effect the registration of any Registrable Securities
under the terms of this Agreement, HNC will, as expeditiously as reasonably
possible:
(a) furnish to the Holders such number of
copies of a prospectus, including a preliminary prospectus (and amendments or
supplements thereto), in conformity with the requirements of the 1933 Act, and
such other documents as they may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by them;
(b) use its best efforts to register and
qualify the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as will be reasonably
requested by the Holders, provided that HNC will not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such state or jurisdiction unless
HNC is already subject to service of process in such jurisdiction; and
(c) promptly notify each Holder of
Registrable Securities covered by such registration statement, at any time when
a prospectus relating thereto is required to be delivered under the 1933 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 a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing.
-6-
7
1.7 FURNISH INFORMATION. It shall be a condition precedent to
the obligations of HNC to take any action pursuant to this Agreement that the
selling Holders will furnish to HNC such information regarding themselves, the
Registrable Securities held by them, and the intended method of disposition of
such Registrable Securities as shall be required to timely effect the
registration of their Registrable Securities.
1.8 DELAY OF REGISTRATION. No Holder will have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Agreement.
1.9 INDEMNIFICATION.
(a) By HNC. To the extent permitted by law, HNC will
indemnify and hold harmless each Holder, the trustee, partners, officers and
directors of each Holder, any underwriter (as defined in the 1933 Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the 1933 Act or the 1934 Act, against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the 1933 Act, the l934 Act or other U.S. federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "VIOLATION"):
(i) any untrue statement or alleged untrue
statement of a material fact contained in a
registration statement filed by HNC pursuant to this
Agreement, including any preliminary prospectus or
final prospectus contained therein or any amendments
or supplements thereto;
(ii) the omission or alleged omission to
state therein a material fact required to be stated
therein, or necessary to make the statements therein
not misleading; or
(iii) any violation or alleged violation by
HNC of the 1933 Act, the 1934 Act, any U.S. federal
or state securities law or any rule or regulation
promulgated under the 1933 Act, the 1934 Act or any
U.S. federal or state securities law in connection
with the offering covered by such registration
statement;
and HNC will reimburse each such Holder, trustee, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably and
actually incurred by them, as incurred, in connection with investigating or
defending any such loss, claim, damage, liability or action; provided however,
that the indemnity agreement contained in this subsection 1.9(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of HNC (which consent
shall not be unreasonably withheld), nor shall HNC be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such
-7-
8
registration by such Holder, trustee, partner, officer, director, underwriter or
controlling person of such Holder.
(b) By Selling Holders. To the extent permitted by
law, each selling Holder will indemnify and hold harmless HNC, each of its
directors, each of its officers who have signed the registration statement, each
person, if any, who controls HNC within the meaning of the 1933 Act, any
underwriter and any other Holder selling securities under such registration
statement or any of such other Holder's partners, directors or officers or any
person who controls such Holder within the meaning of the 1933 Act or the 1934
Act, against any losses, claims, damages or liabilities (joint or several) to
which HNC or any such director, officer, controlling person, underwriter or
other such Holder, trustee, partner or director, officer or controlling person
of such other Holder may become subject under the 1933 Act, the 1934 Act or
other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with such registration;
and each such Holder will reimburse any legal or other expenses reasonably
incurred by HNC or any such director, officer, controlling person, underwriter
or other Holder, trustee, partner, officer, director or controlling person of
such other Holder in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this subsection 1.9(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the indemnifying Holder, which
consent shall not be unreasonably withheld; and provided further that the total
amounts payable in indemnity by a Holder under this subsection 1.9(b) in respect
of any Violation shall not exceed the net proceeds received by such Holder in
the registered offering out of which such Violation arises.
(c) Notice. Promptly after receipt by an indemnified
party under this Section 1.9 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a claim for
indemnification or contribution in respect thereof is to be made against any
indemnifying party under this Section 1.9, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential conflict of
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure of an indemnified party to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.9, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 1.9.
(d) Defect Eliminated in Final Prospectus. The
foregoing indemnity agreements of HNC and Holders are subject to the condition
that, insofar as they relate to any
-8-
9
Violation made in a preliminary prospectus but eliminated or remedied in the
amended or supplemented prospectus on file with the SEC and effective at the
time the sale of Registrable Securities under such registration statement occurs
(the "AMENDED PROSPECTUS"), such indemnity agreement shall not inure to the
benefit of any person if a copy of the Amended Prospectus was furnished to the
indemnified party and was not furnished to the person asserting the loss,
liability, claim or damage, at or prior to the time such action is required by
the 1933 Act.
(e) Contribution. In order to provide for just and
equitable contribution to joint liability under the 1933 Act in any case in
which either (i) any Holder exercising rights under this Agreement, or any
controlling person of any such Holder, makes a claim for indemnification
pursuant to this Section 1.9 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 1.9 provides for indemnification in such case, or (ii) contribution
under the 1933 Act may be required on the part of any such selling Holder or any
such controlling person in circumstances for which indemnification is provided
under this Section 1.9; then, and in each such case, HNC and such Holder will
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (after contribution from others) in such proportion so that such
Holder is responsible for the portion represented by the percentage that the
public offering price of its Registrable Securities offered by and sold under
the registration statement bears to the public offering price of all securities
offered by and sold under such registration statement, and HNC and other selling
Holders are responsible for the remaining portion; provided, however, that, in
any such case, (A) no such Holder will be required to contribute any amount in
excess of the public offering price of all such Registrable Securities offered
and sold by such Holder pursuant to such registration statement; and (B) no
person or entity guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) will be entitled to contribution from any person
or entity who was not guilty of such fraudulent misrepresentation.
(f) Survival. The obligations of HNC and Holders
under this Section 1.9 shall survive the completion of any offering of
Registrable Securities in a registration statement, and otherwise.
1.10 DURATION AND TERMINATION OF HNC'S OBLIGATIONS. HNC will
have no obligations pursuant to Section 1.2 of this Agreement with respect to
any Notice of Resale or other request or requests for registration (or inclusion
in a registration) made by any Holder or to maintain or continue to keep
effective any registration or registration statement pursuant hereto: (a) after
the expiration or termination of the Effectiveness Period; (b) if HNC has
already effected six (6) Permitted Windows pursuant to this Agreement; (c) if,
in the opinion of counsel to HNC, all such Registrable Securities proposed to be
sold by such Holder may be sold in a three (3) month period without registration
under the 1933 Act pursuant to Rule 144 or Rule 145(d) promulgated under the
1933 Act or otherwise; or (d) if all Registrable Securities have been registered
and sold pursuant to registrations effected pursuant to this Agreement and/or
have been transferred in transactions in which registration rights hereunder
have not been assigned in accordance with this Agreement.
1.11 ACKNOWLEDGMENT OF OTHER AGREEMENTS. The Holders
acknowledge that they have been informed by HNC that other shareholders of HNC
currently hold certain S-3 and
-9-
10
other registration rights that may enable such other shareholders to sell shares
of HNC during one or more Permitted Windows or at other times (thus potentially
adversely affecting the receptivity of the market to the sale of the Registrable
Securities pursuant to the Shelf Registration) and that certain shareholders
hold "piggyback registration rights" that may allow them to participate in a
registration effected pursuant to this Agreement. In the event that, after the
date of this Agreement and prior to expiration of the Effectiveness Period, HNC
enters into an agreement pursuant to which HNC grants registration rights to a
third party or parties that may be exercised during the Effectiveness Period,
then, within thirty (30) days after it enters into such agreement, HNC will
notify the Retek Shareholders of the grant of such registration rights and their
general terms.
2. ASSIGNMENT
Notwithstanding anything herein to the contrary, the rights of a Holder
under this Agreement may be assigned only with HNC's express prior written
consent, which may be withheld in HNC's sole discretion; provided, however, that
the rights of a Holder under this Agreement may be assigned without HNC's
express prior written consent: (a) to a Permitted Assignee (as defined below);
or (b) (if applicable) by will or by the laws of intestacy, descent or
distribution, provided that the assignee agrees in writing to be bound by all
the obligations of the Holders under this Agreement. Any attempt to assign any
rights of a Holder under this Agreement without HNC's express prior written
consent in a situation in which such consent is required by this Section shall
be null and void and without effect. Subject to the foregoing restrictions, all
rights, covenants and agreements in this Agreement by or on behalf of the
parties hereto will bind and inure to the benefit of the respective permitted
successors and assigns of the parties hereto. Each of the following parties are
"PERMITTED ASSIGNEES" for purposes of this Section : (a) any beneficiary of a
Shareholder that is a trust; and (b) the personal representative, custodian or
conservator of a Holder, in the case of the death, bankruptcy or adjudication of
incompetency of that Holder.
3. GENERAL PROVISIONS
3.1 NOTICES. Unless otherwise provided, all notices,
instructions and other communications required or permitted to be given
hereunder or necessary or convenient in connection herewith must be in writing
and shall be deemed delivered (i) when personally served or when delivered by
telex or facsimile (to the telex or facsimile number of the person to whom the
notice is given), (ii) the first business day following the date of deposit with
an overnight courier service or (iii) on the earlier of actual receipt or the
third business day following the date on which the notice is deposited in the
United States mail, first class certified, postage prepaid, addressed as
follows: (a) if to HNC, at 5930 Cornerstone Court West, San Diego, CA 92121,
Attention: President, Telecopier: (619) 452-3220; and (b) if to a Shareholder,
at such Shareholder's respective address as set forth on Exhibit A hereto. Any
party hereto (and such party's permitted assigns) may by notice so given change
its address for future notices hereunder.
3.2 ENTIRE AGREEMENT. This Agreement and the provisions of
Section 2.1.3 of the Plan constitute and contain the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes any and all prior negotiations, correspondence, agreements,
understandings, duties or obligations between the parties with respect to the
subject matter hereof.
-10-
11
3.3 AMENDMENT OF RIGHTS. Any provision of this Agreement may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of HNC and Holders of a majority of all Registrable Securities
then outstanding. Any amendment or waiver effected in accordance with this
Section 3.3 shall be binding upon each Holder, each permitted successor or
assignee of such Holder and HNC.
3.4 GOVERNING LAW. This Agreement will be governed by and
construed exclusively in accordance with the internal laws of the State of
California, United States of America, as applied to agreements among California
residents entered into and to be performed entirely within California, excluding
that body of law relating to conflict of laws and choice of law.
3.5 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, then such provision(s) will
be excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and will be enforceable in
accordance with its terms.
3.6 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement,
express or implied, is intended to confer upon any person, other than the
parties hereto and their successors and assigns, any rights or remedies under or
by reason of this Agreement.
3.7 CAPTIONS. The headings and captions to sections of this
Agreement have been inserted for identification and reference purposes only and
will not be used to construe or interpret this Agreement.
3.8 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
3.9 EFFECTIVENESS OF AGREEMENT. Regardless of when signed,
this Agreement will not become effective or binding unless and until the Closing
(as defined in the Plan) of the Exchange has been consummated in accordance with
the Plan.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-11-
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date and year first above written.
HNC SOFTWARE INC. THE SHAREHOLDERS
THE MULBERRY TRUST
By: /s/ Robert L. North By: /s/ Jane M. Collis
---------------------------- ------------------------------------
Print Name: Robert L. North Print Name: Jane M. Collis
------------------ ---------------------------
Title: President Title: Managing Director
------------------------ ---------------------------------
Entity Name: St. George's Trust Company
---------------------------
Limited
-------
THE KULMOR TRUST
By: /s/ Jane M. Collis
-----------------------------------
Print Name: Jane M. Collis
----------------------------
Title: Managing Director
---------------------------------
Entity Name: St. George's Trust Company
--------------------------
Limited
-------
[SIGNATURE PAGE FOR REGISTRATION RIGHTS AGREEMENT]
-12-
13
EXHIBIT A
LIST OF SHAREHOLDERS
Number of Shares of HNC
Name and Address Common Stock Held
- ---------------- -----------------------
The Mulberry Trust 1,162,117
St. George's Trust Company Limited
P.O. Box HM 3051
Hamilton AMX Bermuda
The Kulmor Trust 205,079
St. George's Trust Company Limited
P.O. Box HM 3051
Hamilton AMX Bermuda