AGREEMENT
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This Agreement ("Agreement") is dated as of April 19,2001, by and
between HTE, INC., a Florida corporation ("HTE"), and CONSTELLATION
SOFTWARE, INC., a Canadian corporation ("Constellation").
RECITIALS
WHEREAS, HTE and Constellation are parties to a certain agreement
dated November 16, 2000, a copy of which is attached as Exhibit "A" hereto
(the "First Agreement"); and
WHEREAS, Constellation owns 859,800 shares of HTE's common stock which
are held subject to the First Agreement ("Constellation's Initial HTE
Stock"); and
WHEREAS, subject to a certain letter agreement between HTE and
Constellation dated February 25, 2001, a copy of which is attached as
Exhibit "B" hereto (the "Letter Agreement"), Constellation acquired 100,000
additional shares of HTE's common stock in February 2001 ("Constellation's
First Additional HTE Stock"), increasing its ownership to 959,800 shares as
of the dare hereof; and
WHEREAS, Constellation wishes to acquire up to an additional 400,000
shares of HTE's common stock during the period beginning with the third
NASDAQ trading day following HTE's public release of its earnings for the
quarter ending March 31, 2001, and ending May 25, 2001, and HTE wishes to
authorize such purchases by Constellation of its common stock during such
period (the "Authorized Purchase Period").
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, HTE and Constellation agree as follows:
1. AUTHORIZATION TO PURCHASE ADDITIONAL HTE COMMON STOCK.
Constellation is hereby authorized to purchase up to an additional four
hundred thousand (400,000) shares of HTE's common stock during the
Authorized Purchase Period ("Constellation's Second Additional HTE Stock").
2. VOTING OF CERTAIN HTE STOCK. As long as Constellation controls or
holds a beneficial interest in Constellation's First Additional HTE Stock
and Constellation's Second Additional IIIE Stock, Constellation shall
effect such action as may be necessary to ensure that all such shares are:
(i) voted in favor of all of the nominees to, and proposals of; the board
of directors as approved by the HTE Board of Directors; (ii) voted against
any shareholder proposal not approved or recommended by the HTE Board of
Directors; and (iii) voted and deemed to be present in person or by proxy
at all meetings of the shareholders of HTE so that all shares may be
counted for purposes of determining the presence of a quorum at such
meeting.
3. FURTHER RESTRICTIONS ON CONSTELLATION'S SALE OR DISPOSITION OF HTE
COMMON STOCK. With respect to the sale or other disposition of
Constellation's Initial HTE Stock, Constellation's First Additional HTE
Stock and Constellation's Second Additional HTE Stock (collectively
"Constellation's Total HTE Stock"), the following additional restrictions
shall apply: (i) no more than ten percent (10%) of Constellation's Total
HTE Stock may be sold or disposed of in open market transactions during any
calendar month, (ii) without the prior written consent of HTE, no more than
two percent (2%) of the shares representing the aggregate voting power of
HTE's then outstanding voting capital stock may be knowingly sold or
otherwise transferred (directly or indirectly) to a single entity or
person, including affiliates thereof (as defined in paragraph 7 of the
First Agreement after substituting the name of such single entity or person
for the names Xxxxxxx, Directors and Constellation therein), provided
Constellation notifies, in writing, any broker, dealer or agent (the
"Agent") representing it or handling such transaction(s) of this condition
of sale hereunder, (iii) more than ten percent (10%) of Constellation's
Total HTE Stock may be sold or disposed of during any calendar month,
provided such sale or disposition occurs in a private transaction(s) which
does not print or is not otherwise reported through NASDAQ, any other
exchange or public markets stock quotation or reporting service (an
"Exchange"); or (iv) notwithstanding the foregoing to the contrary, any
amount of Constellation's Total HTE Stock may be sold or otherwise
transferred from time to time, provided that: (y) all of such
transaction(s) pursuant to this clause shall be entirely completed or
crossed off or away from an Exchange in a private or negotiated trade, even
though such transaction(s) may be reported after-the-fact through an
Exchange, and (x) no more than four and nine tenths percent (4.9%) of the
shares representing the aggregate voting power of HTE's then outstanding
voting capital stock may be knowingly sold or otherwise transferred
(directly or indirectly) cumulatively to a single entity or person,
including affiliates thereof (as defined in paragraph 7 of the First
Agreement after substituting the name of such single entity or person for
the names Xxxxxxx, Directors and Constellation therein), provided
Constellation notifies, in writing, the Agent representing it or handling
such transaction(s) of this condition of sale hereunder. Without the prior
written consent of HTE, Constellation shall not sell or transfer any of
Constellation's Total HTE Stock to its affiliate(s) (as defined in
paragraph 7 of the First Agreement).
4. TERM. This Agreement shall continue in effect until the later of:
(i) such date when all obligations of the parties hereto to the other have
been fully satisfied; (ii) the day after the date Constellation, including
affiliates thereof (as defined in paragraph 7 of the First Agreement), no
longer owns or holds a beneficial interest in any HTE common stock; or
(iii) the day after the date of the HTE annual shareholders' meeting held
in the year 2002.
5. NOTICES. All notices, demands and other communications hereunder
shall be in writing or by written telecommunication, and shall be deemed to
have been duly given if delivered personally or if mailed by certified
mail, return receipt requested, postage prepaid, or if sent by overnight
courier, or sent by written telecommunication, as follows:
If to HTE, to:
HTE, Inc.
Attention: Xxxxxx X. Xxxxxxx, III, President
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxx 00000
with a copy to:
X.X. Xxxxxx, Jr., EVP and General Counsel
HTE, Inc.
000 X. Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
If to Constellation, to:
Constellation Software, Inc.
Attention: Xxxx X. Xxxxxxx, President
00 Xxxxxxxx Xx. X., Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Any such notice shall be effective (a) if delivered personally, when
received, (b) if sent by overnight courier, when receipted for, (c) if
mailed, three (3) days after being mailed as described above, and (d) if
sent by written telecommunication, when dispatched.
6. EQUITABLE REMEDIES. Each of the parties hereto acknowledges and
agrees that upon any breach by Constellation's obligations hereunder, HTE
will have no adequate remedy at law, and accordingly will be entitled to
specific performance and other appropriate injunctive and equitable relief
without the need to post a bond greater than $10,000.
7. SEVERABILITY. If any provision of this Agreement is or becomes
invalid, illegal or unenforceable in any respect under any law, the
validity, legality and enforceability of the remaining provisions hereof
shall not in any way be affected or impaired.
8. WAIVERS. No delay or omission by either party hereto in exercising
any right, power or privilege hereunder shall impair such right, power or
privilege, nor shall any single or partial exercise of any such right,
power or privilege preclude any further exercise thereof or the exercise of
any other right, power or privilege.
9. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10. ASSIGNS. This Agreement shall be binding upon and inure to the
benefit of the heirs and successors of each of the parties hereto.
11. GOVERNING LAW. This Agreement and the obligations of the parties
hereunder shall be deemed to be a contract under seal and shall for all
purposes be governed by and construed in accordance with the internal laws
of the State of Florida without reference to principles of conflicts of
law. Venue of any legal proceeding shall be Seminole County, Florida, for
any action commenced in a state court and the Federal Judicial District in
which Seminole County, Florida, is located for any action commenced in a
Federal District Court, and the parties agree to be subject to the
jurisdiction of such courts,
12. ATTORNEYS' FEES; COSTS. In any action to enforce the provisions of
this Agreement, the prevailing party shall be entitled to recover all
reasonable attorneys' fees, court costs and other expenses incurred in
connection therewith, including such fees and costs in the trial court and
on any appeal.
13. ASSIGNMENT. Neither this Agreement nor any right, privilege,
obligation or duty hereunder is assignable or may be delegated without the
written consent of the other party.
14. ENTIRE AGREEMENT. This Agreement, the Letter Agreement and the
First Agreement contain the entire understanding of the parties, supersedes
all prior agreements and understandings relating to the subject matter
hereof and shall not be amended except by a written instrument hereafter
signed by each of the parties hereto.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have caused this Agreement to be duly executed as of the
date and year first above written.
HTE:
HTE, INC.
By: /s/ X.X. Xxxxxx, Jr.,
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X.X. Xxxxxx, Jr., Executive Vice President
CONSTELLATION:
Constellation Software, Inc.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, President
