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REGISTRATION RIGHTS AGREEMENT
September __, 1998
To each of the persons
named on Schedule I hereto:
Dear Sirs:
This will confirm that in consideration of the consummation of
the merger of BI-Green Acquisition Corp. ("BI-Green"), a wholly owned subsidiary
of The BISYS Group, Inc. (the "Company"), with and into Greenway Corporation
("Greenway") pursuant to the Agreement and Plan of Merger dated as of August 21,
1998 among the Company, BI-Green, Greenway and the other persons named therein,
in which an aggregate number of shares of Common Stock, $.02 par value, of the
Company (the "Shares") set forth on Schedule I hereto opposite your name will be
issuable to you upon conversion of shares of common stock of Greenway, the
Company hereby covenants and agrees with each of you, as follows:
1. Certain Definitions. As used herein, the following terms
shall have the following respective meanings:
"Commission" shall mean the United States Securities
and Exchange Commission, or any other federal agency at the
time administering the Securities Act (hereinafter defined).
"Common Stock" shall mean the Common Stock, $.02 par
value, of the Company, as constituted as of the date of this
Agreement.
"Distribution Period" shall mean the period
commencing on the effective date of the registration statement
covering Registerable Stock (hereinafter defined) filed
pursuant to Sections 2, 3 and/or 4 hereof and ending (a) with
respect to a firm commitment underwriting in which
Registerable Stock is included, when each underwriter has
completed the distribution of all such Registerable Stock or
(b) with respect to any other public offering of Registerable
Stock, on the earlier to occur of (i) the sale of all of the
Registerable Stock covered by such registration statement or
(ii) the second anniversary of the Effective Time (hereinafter
defined).
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"Effective Time" shall mean the Effective Time of the
Merger, as defined in the Merger Agreement (hereinafter
defined).
"Exchange Act" shall mean the Securities Exchange Act
of 1934 or any similar federal statute, and the rules and
regulations of the Commission thereunder, all as the same
shall be in effect at the time.
"Merger" shall mean the merger of BI-Green with and
into Greenway pursuant to the Merger Agreement (hereinafter
defined).
"Merger Agreement" shall mean the Agreement and Plan
of Merger dated as of August 21, 1998, as amended as of August
31, 1998, among the Company, BI-Green, Greenway and the other
persons named therein.
"Registerable Stock" shall mean shares of Common
Stock issued to you in the Merger and not transferred or
otherwise disposed of by you except as contemplated hereunder.
"Registration Period" shall mean the period
commencing at the Effective Time and ending on the earlier to
occur of (i) the sale by the holders of Registerable Stock of
all of the Registerable Stock covered by the registration
statement referred to in Section 4 below or (ii) the first
anniversary of the Effective Time.
"Securities Act" shall mean the Securities Act of
1933, as amended, or any similar federal statute, and the
rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
"Selling Expenses" shall mean any and all
underwriting discounts and selling commissions applicable to
the sale of Registerable Stock in an underwritten public
offering.
2. Required Registration.
(a) At any time during the Registration Period, the
holders of the majority of the Registerable Stock may request
in writing that the Company register under the Securities Act
the Registerable Stock held by them for public sale.
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(b) Following the receipt of any notice under Section
2(a), the Company shall notify any holders of Registerable
Stock from whom notice has not been received and shall use
reasonable efforts to register under the Securities Act as
promptly as practicable for public sale the number of shares
of Registerable Stock specified in such notice and in any
notices received from other holders of Registerable Stock
within 20 days after said notice from the Company. The
Company, at its sole option, may elect to register such
Registerable Stock for an underwritten public offering, and,
in such event, the Company shall designate the managing
underwriter of such offering. The Company shall not be
obligated to effect registration of Registerable Stock
pursuant to this Section 2 on more than one occasion.
(c) Notwithstanding the foregoing, the Company shall
not be obligated to take any action to effect any registration
pursuant to this Section 2 hereof:
(i) within 180 days after the effective date
of any registration statement pertaining to an
underwritten public offering of securities of the
Company for its own account;
(ii) at any time that the Company has filed,
or is in good faith planning to file within 120 days
after receipt by the Company of the request for
registration, a registration statement on Form S-4 or
any successor form pertaining to shares of Common
Stock to be issued in connection with any merger,
consolidation, acquisition of assets (outside of the
ordinary course of business) or capital stock, or
other business combination involving the Company or
any subsidiary of the Company;
(iii) if in the good faith determination of
the Board of Directors of the Company it would be
seriously detrimental to the Company for a
registration to be effected as requested, and the
Company shall furnish to the holders of Registerable
Stock requesting such registration a certificate of
the Chief Executive Officer of the Company stating
the same, in which case the Company may postpone the
filing of a registration statement for a period of
not more than four months after receipt by the
Company of the request for registration, provided,
however, that the
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Company may not exercise its rights under this clause
(iii) more than once; or
(iv) at any time after the expiration of the
Registration Period.
If the Company utilizes any of the foregoing provisions to
defer the registration of Registerable Stock, the Registration Period shall be
automatically extended by the period during which the Company is not thereby
obligated to effect registration.
3. Incidental Registration. If the Company at any time during
the Registration Period (other than pursuant to Section 2 hereof) proposes to
register any of its Common Stock under the Securities Act for sale to the
public, whether for its own account or for the account of other security holders
or both (except with respect to registration statements on Forms S-4 or S-8 or
another form not available for registering Registerable Stock for sale by the
holders thereof to the public), it will give notice at such time to all holders
of outstanding Registerable Stock of its intention to do so. Upon the written
request of any such holder(s), given within 20 days after receipt of any such
notice by the Company, to register any of its Registerable Stock, the Company
will use its best efforts to cause the Registerable Stock as to which
registration shall have been so requested to be included in the securities to be
covered by the registration statement proposed to be filed by the Company, all
to the extent requisite to permit the sale by such holder(s) to the public of
such Registerable Stock so registered. In the event that any registration
pursuant to this Section 3 shall cover an underwritten public offering of Common
Stock, the Registerable Stock to be included in such underwriting shall be
included, insofar as is practicable, on the same terms and conditions as the
shares of Common Stock otherwise being sold through underwriters.
Notwithstanding the foregoing, the number of shares of Registerable Stock to be
included in such an underwriting may be reduced (pro rata among the selling
shareholders participating in such underwriting, including, without limitation,
the requesting holders of Registerable Stock, based upon the number of shares of
Registerable Stock so requested to be registered by the holders thereof) if and
to the extent that the managing underwriter shall be of the opinion that such
inclusion would adversely affect the marketing of the securities to be sold
therein by any other seller (including without limitation the Company).
Notwithstanding anything to the contrary contained in this
Section 3, in the event that there is a firm commitment underwritten public
offering of securities of the Company pursuant to a registration covering
Registerable Stock, and a holder of Registerable Stock does not elect to sell
his Registerable Stock
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to the underwriters of the Company's securities in such offering, such holder
shall refrain from selling such Registerable Stock during the period of
distribution of the Company's securities by such underwriters and the period in
which the underwriting syndicate participates in the aftermarket.
4. Registration Procedures. If and whenever the Company is
required by the provisions of Section 2 or Section 3 hereof to use its best
efforts to effect the registration of any of the Registerable Stock under the
Securities Act, the Company will, as expeditiously as is practicable:
(a) prepare, submit to you and to one counsel for the
selling shareholders for a reasonable opportunity to review,
and thereafter file with the Commission as soon as
practicable, a registration statement with respect to such
Registerable Stock (which shall be on Form S-3 if the Company
is then eligible to use such form and otherwise on Form S-1 or
such other form of general applicability acceptable to the
Company), and shall use its best efforts to cause such
registration statement to become and remain effective during
the Distribution Period.
(b) prepare and file with the Commission 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 during
the Distribution Period.
(c) furnish to each seller and each underwriter, if
any, such number of copies of the registration statement and
the prospectus included therein (including each preliminary
prospectus) and any amendment or supplement thereto as such
person may reasonably request in order to facilitate the
public sale of the Registerable Stock covered by such
registration statement;
(d) use its best efforts to register or qualify the
Registerable Stock covered by such registration statement
under the securities or blue sky laws of a reasonable number
of jurisdictions (provided that the Company will not be
required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to
qualify but for this paragraph (d), (ii) subject itself to
taxation in any such jurisdiction or (iii) consent to general
service of process in any jurisdiction):
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(e) promptly notify each seller of Registerable Stock
(if requested by any such seller) and the managing
underwriter, if any, and confirm such notice in writing, (i)
when such registration statement or any amendment or
supplement thereto or to the prospectus or preliminary
prospectus contained therein has been filed, (ii) of any
request by the Commission for amendments or supplements to
such registration statement or prospectus or for additional
information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of such registration
statement or the initiation of proceedings for that purpose,
or (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the
Registerable Stock for sale in any jurisdiction or the
initiation or threatening of any proceeding for that purpose;
(f) immediately notify each seller under such
registration statement and each underwriter, if any, at any
time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any
event as a result of which the prospectus contained 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 not misleading in the light of the
circumstances then existing, and promptly thereafter prepare
and file with the Commission a supplement or amendment to such
prospectus, such registration statement or any document
incorporated therein by reference, or make such other filing,
such that as thereafter delivered to the purchasers of
Registerable Stock the prospectus will not contain an untrue
statement of material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(g) use its best efforts to obtain the withdrawal of
any order suspending the effectiveness of such registration
statement; and
(h) in the case of an underwritten public offering of
Registerable Stock, if requested by the managing underwriter
of such offering, incorporate in a prospectus supplement or
post-effective amendment to such registration statement such
information as the Company and such managing underwriter shall
agree should be included relating to the plan of distribution
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of such Registerable Stock, including, without limitation,
information with respect to the number of shares of
Registerable Stock being sold to the underwriter(s), the
purchase price being paid therefor by the underwriter(s) and
other material terms of such underwriting, and file with the
Commission such supplement or post-effective amendment as
promptly as practicable after notification of the information
to be incorporated therein.
In connection with each registration hereunder, each selling
holder of Registerable Stock shall furnish to the Company in writing such
information with respect to himself and the proposed distribution by him as
shall be reasonably necessary in order to assure compliance with federal and
applicable state securities laws.
5. Expenses. All expenses incurred by the Company in complying
with Sections 2, 3 and/or 4 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees of the National
Association of Securities Dealers, Inc., transfer taxes and fees of transfer
agents and registrars, but excluding any Selling Expenses, will be paid by the
Company in connection with the registration statement filed pursuant to Sections
2, 3 and/or 4 hereof, provided, however, that all Selling Expenses shall be
borne by the participating sellers in a proportion to the number of shares sold
by each such person, or by such persons other than the Company as they may
agree.
6. Indemnification. The Company will indemnify and hold
harmless each seller of such Registerable Stock under the registration statement
filed pursuant to Sections 2, 3 and/or 4 hereof, each partner, officer and
director of each such seller, each underwriter of Registerable Stock thereunder
and each other person, if any, who controls such seller within the meaning of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such seller, partner, officer, director or controlling person
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the registration statement filed pursuant to Sections
2 and 3 hereof, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, (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, and (iii) any violation
or alleged violation by the
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Company of the Securities Act, the Exchange Act, any state securities law or any
rule or regulation promulgated under any of the same in connection with the
offering covered by such registration statement, and the Company will reimburse
each such seller, partner, officer, director, underwriter and each such
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in reliance upon and in
conformity with information furnished by such seller or any of its partners,
officers, directors, underwriter or such controlling person in writing
specifically for use in such registration statement or prospectus.
Each seller of such Registerable Stock under the registration
statement filed pursuant to Sections 2, 3 and/or 4 hereof, severally and not
jointly, will indemnify and hold harmless the Company and each person, if any,
who controls the Company within the meaning of the Securities Act, each officer
of the Company who signs the registration statement, each director of the
Company, and each person who controls any of the foregoing within the meaning of
the Securities Act, against all losses, claims, damages or liabilities, joint or
several, to which the Company or such officer or director or controlling person
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the registration statement filed pursuant to Sections
2, 3 and/or 4 hereof, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, (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 the Company of the Securities Act, the Exchange Act, any
state securities law or any rule or regulation promulgated under any of the same
in connection with the offering covered by such registration statement, and each
such seller will reimburse the Company and each such officer, director and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that such seller will be liable
hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information furnished in writing to the
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Company by such seller specifically for use in such registration statement or
prospectus. Notwithstanding the foregoing, (i) no seller shall be liable for
payments of amounts paid in settlement of any loss, claim, damage, liability or
action if such settlement is effected without the consent of such seller (which
consent shall not be unreasonably withheld), and (ii) in no event shall the
liability of any seller of Registerable Stock under this Section 5 in connection
with any registration exceed the proceeds received by such seller from the sale
of shares of Registerable Stock in such registration.
Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to any indemnified party other than under this Section 6. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified party
of its election so to assume and undertake the defense thereof, the indemnifying
party, if it shall actually undertake the defense thereof, shall not be liable
to such indemnified party under this Section 6 for any legal expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation and of liaison with counsel
so selected; provided, however, that, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be reasonable
defenses available to it which are different from or additional to those
available to the indemnifying party, or if the interests of the indemnified
party reasonably may be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified party shall
have the right to retain its own counsel in any such action, but the fees and
disbursements of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have failed to retain counsel for the
indemnified person as aforesaid or shall have failed to defend such action in
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accordance with the preceding paragraph or (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that the indemnifying party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such jurisdiction to
act as counsel for the indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the first two
paragraphs of this Section 6 is unavailable or insufficient to hold harmless an
indemnified party under such paragraphs in respect of any losses, claims,
damages or liabilities or actions in respect thereof referred to therein, 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 losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of the Company, on the one hand, and
the sellers of such Registerable Stock, on the other, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or actions as well as any other relevant equitable considerations,
including the failure to give any notice under the third paragraph of this
Section 6. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
relates to information supplied by the Company, on the one hand, or the sellers
of such Registerable Stock, on the other, and to the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each of you agree that it would not be
just and equitable if contributions pursuant to this paragraph were determined
by pro rata allocation (even if all of the sellers of such Registerable Stock
were treated as one entity for such purpose) or by any other method of
allocation which did not take account of the equitable considerations referred
to above in this paragraph. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities or action in respect
thereof, referred to above in this paragraph, shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph, the sellers of such
Registerable Stock shall not be required to contribute any amount in excess of
the amount, if any, by which the total price at which the Common Stock sold by
each of them was offered to the public exceeds the amount of any
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damages which they would have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission. No person guilty of fraudulent
misrepresentations (within the meaning of Section 11(f) of the Securities Act),
shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation.
7. Current Public Information. The Company agrees with you as
follows:
(a) The Company shall use its best efforts to make
and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act,
at all times from and after the date hereof.
(b) The Company shall use its best efforts to file
with the Commission in a timely manner all reports and other
documents as the Commission may prescribe under Section 13(a)
or 15(d) of the Exchange Act.
(c) The Company shall furnish to each holder of
Registerable Stock upon request (i) a copy of the most recent
annual or quarterly report of the Company, and (ii) such other
reports and documents so filed as a holder may reasonably
request to avail itself of any rule or regulation of the
Commission allowing a holder of Registerable Stock to sell any
such securities without registration.
8. Effectiveness of this Agreement. This Agreement shall
become effective at the Effective Time. If the Effective Time shall not occur,
this Agreement shall be of no force and effect.
9. Miscellaneous.
(a) All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not, provided, however, that the obligations of the
Company hereunder shall inure only to the benefit of (i) you, (ii) a person who
shall become a holder of Registerable Stock by gift or by will or the laws of
descent and distribution and (iii) an institutional lender to whom shares of
Registerable Stock are bona fide pledged as collateral security for a loan, and
the term "Registerable Stock" as used herein shall be limited to Registerable
Stock held by you or any such person.
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(b) All notices, requests, consents and other
communications hereunder shall be in writing and shall be mailed by first class
registered mail, postage prepaid, addressed as follows:
if to the Company, to it at Overlook at Great Notch,
150 Clove Road, Little Falls, New Jersey 07424, Attention:
Vice President and General Counsel;
if to any holder of Registerable Stock, at its address as set
forth in Annex I hereto;
if to any subsequent holder of Registerable Stock
pursuant to Section 10(a) hereof to it at such address as may
have been furnished to the Company in writing by such holder;
or, in any case, at such other address or addresses as shall
have been furnished in writing to the Company (in the case of
a holder of Registerable Stock or to such holders of
Registerable Stock (in the case of the Company).
(c) This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
(d) This Agreement constitutes the entire agreement
of the parties with respect to the subject matter hereof and may not be modified
or amended except in writing signed by the Company and by the holders of not
less than a majority of the Registerable Stock.
(e) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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Please indicate your acceptance of the foregoing by signing
and returning the enclosed counterpart of this letter, whereupon this letter
(herein sometimes called "this Agreement") shall be a binding agreement between
the Company and you.
Very truly yours,
THE BISYS GROUP, INC.
By:
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Name: Lynn J. Mangum
Title: Chairman and Chief Executive
Officer
AGREED TO AND ACCEPTED
as of the date first
above written:
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W.T. Green, Jr.
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Elizabeth J. Green
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W.T. Green, III
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Elizabeth H. Green
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Andrew J. Green (by WTG, Jr.)
W.T. Green, Jr. Family Limited
Partnership
By:
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W.T. Green, Jr.
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Service Supply of Douglasville, Inc.
By:
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W.T. Green, Jr.
BFG Investments, LLC
By:
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Robert B. Braden
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Manny Enriquez
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Dale May
L. Richard Plunkett Family Partnership
By:
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L. Richard Plunkett
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Thomas T. Richards
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J. Thomas Vance
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Wilks Investments, L.P.
By:
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Van C. Wilks
General Partner
By:
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Kitty G. Wilks
General Partner
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Earl Dolive
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