Exhibit 10.4
THIS
WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), OR UNDER ANY STATE SECURITIES OR
BLUE SKY LAWS. NEITHER THIS WARRANT NOR ANY OF SUCH SHARES MAY BE
SOLD, TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF UNLESS THE
PERSON REQUESTING THE TRANSFER THEREOF SHALL FURNISH, WITH RESPECT
TO SUCH TRANSFER, AN OPINION OF COUNSEL (BOTH COUNSEL AND OPINION
TO BE SATISFACTORY TO TYLER TECHNOLOGIES, INC. F/K/A TYLER
CORPORATION) TO THE EFFECT THAT SUCH SALE, TRANSFER, ASSIGNMENT OR
DISPOSITION WILL NOT INVOLVE ANY VIOLATION OF THE REGISTRATION
PROVISIONS OF THE ACT OR ANY SIMILAR OR SUPERSEDING STATUTE OR ANY
APPLICABLE STATE SECURITIES LAW.
AMENDED AND RESTATED STOCK PURCHASE WARRANT
To Purchase Shares of Common Stock of
Tyler Technologies, Inc. f/k/a Tyler Corporation
THIS CERTIFIES THAT, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by Tyler Technologies, Inc. f/k/a Tyler
Corporation, a Delaware corporation (the “Company”),
Bank of America, N.A. (the “Holder”) is entitled, upon
presentation of this Warrant with the attached Subscription Form
duly executed and payment of $2.50 per Warrant Share (hereinafter
defined) by cash, cashier’s check, wire transfer funds, or
otherwise pursuant to Section 5 , to the Company (the
“Purchase Price”), at the principal office of the
Company, and subject to the terms and conditions hereinafter set
forth, to purchase from the Company SIX HUNDRED THREE THOUSAND
SEVEN HUNDRED SIXTY-SIX (603,766) fully paid and non-assessable
shares of common stock, par value $.01 per share, (the
“Common Stock”), of the Company from and after the Date
of this Warrant through the Expiration Date (each as hereinafter
defined).
In certain contingencies provided for
below, the number of shares of the Common Stock subject to purchase
hereunder (the “Warrant Shares”) and the Purchase Price
thereof are subject to adjustment, but the shares subject to
purchase are the shares of such stock of the Company as they may
exist on the date of the exercise of this Warrant except as
otherwise provided in paragraph 7 below.
1. In case of the purchase of
less than all the Warrant Shares, the Company may, at its option,
cancel this Warrant upon the surrender hereof and execute and
deliver a new Warrant of like tenor for the balance of the Warrant
Shares purchasable hereunder.
2. Until the Warrant Shares are
transferable pursuant to Rule 144 under the Securities Act of
1933, as amended (the “Act”), without the volume
limitations set forth in such rule, Holder shall have the right to
include the Warrant Shares in any registration statement filed by
the Company; provided, however, that if any such registration
statement is an underwritten public offering, the right of Holder
to include such Warrant Shares in such registration statement shall
be conditioned upon Holder’s entering into reasonable
underwriting arrangements as the Company and the underwriter shall
make regarding the offering, including limiting the number of
Warrant Shares which may be sold in such offering if the
underwriters deem such a limitation advisable, and provided further
that if such limitation is imposed, then the Company shall reduce
the number of Warrant Shares being registered by Holder on a pro
rata basis with other holders of similar registration rights.
Holder shall pay his pro rata portion of the out-of-pocket selling
expenses in connection with the piggy-back rights exercised
pursuant to this paragraph 2.
3. Holder may make a one-time
written demand upon the Company to file, within 90 days after
such written demand is made, with the Securities and Exchange
Commission a shelf registration
statement covering the resale of the Warrant Shares owned by
Holder. The Company shall use its reasonable efforts to cause such
registration statement to become effective as soon as practicable.
The Company can defer the registration for up to an additional
ninety (90) days if the Company’s board of directors
determines that such deferral would be in the Company’s best
interest. The Company agrees to take all reasonable steps necessary
to keep the registration statement effective until the lesser of
(A) such date that it ceases to maintain any shelf
registration but not sooner than two years after the effective date
of the shelf registration (“First Registration”) with
respect to the Warrant Shares and (B) until the securities
covered by such First Registration are transferable pursuant to
Rule 144 under the Act without the volume limitations set
forth in such rule. In addition, if after the First Registration
ceases to be effective, Company files a subsequent shelf
registration, it shall also at the same time again file a shelf
registration statement covering the resale of the Warrant Shares
then owned by Holder and shall thereafter until the Expiration Date
use all reasonable steps to keep a shelf registration effective
with respect to the Warrant Shares for so long as it maintains any
effective shelf registration for its common stock. Holder shall pay
for all reasonable out-of-pocket expenses incurred in connection
with any demand rights exercised pursuant to this paragraph
3.
4. The Holder and the holder of
any Warrant Shares issued upon exercise hereof, by its acceptance
hereof, agrees that all certificates evidencing the Warrant Shares
issued upon exercise of this Warrant shall bear a restrictive
legend in substantially the following form:
THE COMMON
STOCK EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR
UNDER ANY APPLICABLE STATE SECURITIES LAWS. SUCH COMMON STOCK MAY
NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, ASSIGNED OR OTHERWISE
DISPOSED OF WITHOUT REGISTRATION UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR UNLESS THE PERSON REQUESTING THE TRANSFER
OF SUCH COMMON STOCK SHALL FURNISH, WITH RESPECT TO SUCH TRANSFER,
AN OPINION OF COUNSEL (BOTH COUNSEL AND OPINION TO BE SATISFACTORY
TO TYLER TECHNOLOGIES, INC. F/K/A TYLER CORPORATION) THAT
REGISTRATION IS NOT REQUIRED.
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5. |
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(i) This Warrant to purchase
Warrant Shares shall be exercised one or more times at any time
prior to the Expiration Date by giving one or more written notices
to the Company pursuant to paragraph 13(ii) of this Agreement. Such
notice shall state the number of Warrant Shares with respect to
which the Warrant is being exercised and shall specify a date which
shall not be less than five (5) nor more than thirty
(30) business days after the date of such notice, as the date
on which the Warrant Shar |
