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Exhibit 4.4
Pursuant to an Agreement and Plan of Merger dated May 28, 1999, Manatron has agreed to acquire ProVal through the merger of ProVal Acquisition Corporation, a wholly owned subsidiary of Manatron, with and into ProVal (the "Merger"). In the Merger, Moore will receive, among other things, three hundred thousand (300,000) shares of Manatron common stock, no par value per share ("Manatron Common Stock"). Each such share of Manatron Common Stock will be issued without registration under the Securities Act of 1933, as amended (the "Securities Act"), and shall be a "restricted security," as that term is defined in Securities and Exchange Commission ("SEC") Rule 144, promulgated under the Securities Act. As a condition to Moore's obligation to consummate the Merger, the Parties are entering into this Agreement under which Moore will have certain registration rights with respect to the Manatron Common Stock acquired by Moore in connection with the Merger.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth in this Agreement, the Parties agree as follows:
1. REGISTRATION RIGHTS.
1.1 Certain Definitions. As used in this Agreement, the following terms shall have the meanings set forth below:
(a) The terms "register," "registered" and "registration" shall refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act and the declaration or ordering of the effectiveness of that registration statement.(b) "Registration Expenses" shall mean all expenses incurred in effecting any registration pursuant to this Agreement, including all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for Manatron and Moore, blue sky fees and expenses, and expenses of any regular or special audits incident to or required by any registration, but shall not include Selling Expenses.
(c) "Selling Expenses" shall mean all underwriting discounts, brokers' fees, selling commissions and stock transfer taxes applicable to the sale by Moore of Shares.
(d) "Shares" shall mean the shares of Manatron Common Stock issued to Moore in the Merger.
1.3 Registration on Form S-3. As soon as reasonably practicable following the Merger, Manatron will prepare and file with the SEC a Form S-3 registration statement to effect the registration of the Shares and use all reasonable efforts to cause the registration statement to become effective as promptly as practical. In connection with such registration, Manatron will keep Moore advised in writing as to the initiation and completion of the registration. At its expense, Manatron will use its best efforts to:
(a) Keep the registration effective for a period of 180 days or until Moore has completed the distribution described in the related registration statement, whichever first occurs; provided, however, that (i) the 180-day period shall be extended for a period of time equal to the period Moore refrains from selling any securities included in the registration at the request of the representative of any participating underwriter or underwriters; and (ii) in the case of any registration of Shares which are intended to be offered on a continuous or delayed basis, the 180-day period shall be extended, if necessary, to keep the registration statement effective until all of the Shares are sold, provided that the Securities Act permits an offering on a continuous or delayed basis;(b) Prepare and file with the SEC the registration statement and related prospectus and all amendments and supplements to the registration statement and the prospectus that may be necessary to comply with the Securities Act with respect to the disposition of all securities covered by the registration statement;
(c) Furnish to Moore a conformed copy of the registration statement and each amendment and supplement (in each case including all exhibits), and such number of copies of the Prospectus as Moore may reasonably request, up to ten. If Moore requires additional copies of the registration statement or prospectus, Manatron shall provide them, but any additional printing, copying, and other related expenses shall be paid by Moore.
(d) Cooperate with Moore and underwriter, if any, to prepare and deliver certificates representing Shares to be sold and not bearing any restrictive legends; and issue the Shares in the denominations and register them in the names as Moore or underwriters, if any, may request at least two business days before any sale of Shares;
(e) Make available to Moore the inspection of all financial and other records, pertinent corporate documents and properties of Manatron, and cause Manatron's officers, directors and employees to supply all information that Moore, Moore's representative, underwriter, attorney or accountant may reasonably request in connection with the registration; provided that such persons will use their best efforts to keep confidential any
records, information or documents that Manatron designates in writing as confidential unless a court or administrative agency requires the disclosure of the records, information or documents;(f) Notify Moore of the happening of any event as a result of which the prospectus included in the 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, in light of the circumstances under which they were made, not misleading, and at the request of any seller prepare and furnish to that seller that number of copies of a supplement to or an amendment of the prospectus reasonably requested by the seller so that, as thereafter delivered to the purchasers of the shares, the prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(g) Cause all Shares registered pursuant to the registration statement to be listed on NASDAQ and on each securities exchange on which similar securities issued by Manatron are then listed.
Notwithstanding the foregoing, Manatron may delay filing a registration statement, and may withhold efforts to cause the registration statement to become effective, if Manatron determines in good faith that such registration might interfere with or affect the negotiation or completion of any transaction that is then being contemplated by Manatron or any of its affiliates or such registration would (whether or not a final decision has been made to undertake such transaction) at the time the right to withhold efforts is exercised involve disclosure obligations that might not be in Manatron's best interest.
1.4 Indemnification.
(a) Manatron will indemnify, to the extent legally permitted, Moore, against all expenses, claims, losses, damages, and liabilities (or actions, proceedings, or settlements in respect thereof) (collectively, the "Losses") arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document incident to any registration, qualification or compliance effected under Section 1, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by Manatron of the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any applicable foreign securities laws and blue sky and other state securities laws in connection with any registration, qualification or compliance, and will reimburse Moore for any legal and other similar expenses reasonably incurred in connection with investigating and defending or settling any Losses, provided that Manatron will not be liable for any Losses incurred by Moore to the extent that the
untrue statement (or alleged untrue statements) or omission (or alleged omission) is made in the registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to Manatron by Moore specifically for use therein.(b) Moore will indemnify, to the extent legally permitted, Manatron against all Losses arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse Manatron for any legal and other similar expenses reasonably incurred in connection with investigating or defending any Losses, in each case only to the extent that the untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in the registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to Manatron by Moore specifically for use therein.
(c) Each party entitled to indemnification under this section (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after the Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, provided that the failure of any Indemnified Party to give the foregoing notice shall not relieve the Indemnifying Party of its obligations under this section to the extent the failure is not materially prejudicial. If any claim, action, suit or proceeding is made or brought by any third party against an Indemnified Party with respect to which an Indemnifying Party may have liability under this section (a "Third Party Claim"), the Indemnifying Party shall, at its own expense, be entitled to participate in and, to the extent that it shall wish, jointly and with any other Indemnifying Party, to assume the defense of the Third Party Claim, with independent counsel reasonably satisfactory to the Indemnified Party, provided that in assuming the defense of the Third Party Claim, the Indemnifying Party acknowledges in writing to the Indemnified Party that the Indemnifying Party shall be liable for any Losses with respect to the Third Party Claim. If the Indemnifying Party elects to assume control of the defense, it shall conduct the defense in a manner reasonably satisfactory and effective to protect the Indemnified Party fully, it will keep the Indemnified Party fully advised as to the conduct of the defense, and no compromise or settlement shall be agreed or made without the Indemnified Party's prior written consent. In any case, the Indemnified Party shall have the right to employ its own counsel who may participate in the Third Party Claim, but the reasonable fees and expenses of the counsel shall be at the expense of the Indemnified Party unless (i) the employment of counsel by the Indemnified Party has been authorized in writing by the Indemnifying Party, (ii) the Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of the Third Party Claim (iii) the Indemnifying Party shall not in fact have employed independent counsel reasonably satisfactory to the Indemnified Party to assume the defense of the Third Party Claim and shall have been so notified by the Indemnified Party, (iv) the Indemnified Party shall have reasonably concluded and notified the Indemnifying Party either that there may be specific defenses available to it which are different from
or additional to those available to the Indemnifying Party or that the Third Party Claim could have a material adverse effect upon it beyond the financial resources of the Indemnifying Party or the scope of this Agreement, or (v) the Indemnifying Party fails to conduct the defense in a manner reasonably satisfactory to protect the Indemnified Party fully. If clause (ii), (iii), (iv) or (v) of the preceding sentence shall be applicable, then counsel for the Indemnified Party shall have the right to direct the defense of the Third Party Claim on behalf of the Indemnified Party and the reasonable fees and disbursements of that counsel shall constitute indemnifiable Losses under this Agreement. The Indemnified Party and the Indemnifying Party, as the case may be, shall be kept fully informed of the Third Party Claim, whether or not the party is represented by its own counsel.1.5 Information by Moore. Moore shall furnish to Manatron any information regarding Moore and the distribution proposed by Moore that Manatron may reasonably request in writing and that shall be reasonably required in connection with the registration, qualification or compliance provided for in this Agreement.(d) If the indemnification provided for in this section is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any Losses, then the Indemnifying Party, in lieu of indemnifying the Indemnified Party under this Agreement, shall contribute to the amount paid or payable by the Indemnified Party as a result of the Losses in a proportion that reflects not only the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in connection with the statements or omissions that resulted in the Losses, but the relevant benefits received by the Indemnifying Party on the one hand and the Indemnified Party on the other, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent the statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in any underwriting agreement entered into in connection with an underwritten public offering of Shares are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.
1.6 Limitations on Subsequent Registration Rights. Other than the registration rights granted to Moore under this Agreement, Moore has no registration rights with respect to the securities of Manatron.
1.7 Transfer or Assignment of Registration Rights. The registration rights granted to Moore under this Agreement may not be transferred or assigned by Moore without Manatron's prior written consent.
2. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF MOORE. Moore severally represents, acknowledges, warrants, and agrees that:
2.1 Not For Resale, Etc. Moore is acquiring the Shares for his own account and not with a view to or for sale in connection with any distribution.
2.2 Restricted Securities. He or she has been advised that the Manatron Common Stock to be received in connection with the Merger has not been registered under the Securities Act, or registered or qualified under any state securities or blue sky law, on the ground that exemptions from such registration and qualification requirements are available; he understands that Manatron is relying in part on the representations of Moore as set forth herein for purposes of claiming such exemptions and that the basis for such exemptions may not be present if, notwithstanding the representations of Moore, he intends to acquire Manatron Common Stock for resale on the occurrence or non-occurrence of some predetermined event. Moore has no such intention.
2.3 Manatron Information. Moore acknowledges that he has been furnished with such financial and other information concerning Manatron and the business of Manatron as he considers necessary in connection with the investment in Manatron Common Stock.
3. MISCELLANEOUS.
3.1 Governing Law. This Agreement shall be governed in all respects by the laws of the State of Michigan, as applied to agreements entered into and to be performed entirely within that state.
3.2 Successors and Assigns. Except as otherwise expressly provided in this Agreement, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the Parties and their respective successors, assigns, heirs, executors and administrators.
3.3 Entire Agreement; Amendment; Waiver. This Agreement constitutes the full and entire understanding and agreement between the Parties with regard to its subject matter. Neither this Agreement nor any term hereof may be amended, waived, discharged or terminated, except by a written instrument signed by each Party.
3.5 Severability. If any provision of the Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
3.6 Titles and Subtitles; Construction. The titles of the section, subsections, paragraphs and subparagraphs of this Agreement are for convenience of reference only and are not to be considered in construing or interpreting this Agreement. As used in this Agreement, the term "including" shall mean "including without limitation," unless specifically provided otherwise.
3.7 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.
The Parties have signed this Registration Rights Agreement effective as of the day and year first written above.
| MANATRON, INC. | |
| By: /s/ Paul R. Sylvester |
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| Title: President |
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| /s/ J. Wayne Moore |
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| J. WAYNE MOORE |
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