EXHIBIT 10.8
This Warrant will be void after 5:00 P.M., Eastern Daylight Time, June 20, 2004
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES ACT AND MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM, OR IN ABSENCE OF RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT THE WARRANT OR SHARES SOUGHT TO BE
SOLD OR TRANSFERRED MAY BE SOLD OR TRANSFERRED WITHOUT SUCH REGISTRATION.
Number CS-8
STOCK PURCHASE WARRANT
To Subscribe For and Purchase Common Stock of.
INDUS INTERNATIONAL, INC.
(Transferability Restricted as Provided in Paragraph 2 Below)
THIS CERTIFIES THAT, for value received, WARBURG, XXXXXX INVESTORS,
L.P., a Delaware limited partnership ("Warburg"), or registered assigns, is
entitled to subscribe for and purchase from INDUS INTERNATIONAL, INC., a
Delaware corporation (the "Company"), at the price of Two Dollars and
Seventy-Nine Cents ($2.79) per share at any time from June 20, 1994 to and
including June 20, 2004, to purchase 304,533 shares of the Company's fully paid
and nonassessable Common Stock, $0.001 par value per share (the "Warrant
Shares"); subject, however, to the provisions and upon the terms and conditions
hereinafter set forth.
1. The rights represented by this Warrant may be exercised by the
holder hereof, in whole or in part (but not as to a fractional share of Common
Stock), by the surrender of this Warrant (properly endorsed, if required), at
the principal office of the Company (or such other office as the Company may
designate by notice in writing to the holder hereof, and upon payment to the
Company, by case or by certified check or bank draft, of the purchase price for
such Warrant Shares The Company agrees that the shares so purchased shall be
deemed to be issued to the holder hereof as the record owner of such shares, as
of the close of business of the date on which this Warrant shall have been
surrendered and payment made for such shares, as aforesaid. Certificates for the
shares so purchased shall be delivered to the holder hereof within a reasonable
time, not exceeding ten (10) days, after the rights represented by this Warrant
shall have been so exercised, and, unless this Warrant has expired.
2. The Warrants will be exercisable, assignable and transferable for a
period of ten (10) years from the date of issuance; provided however, that any
transfer or assignment of the Warrants to any person must be made in accordance
with provisions of the Securities Act of 1933, as amended.
or any similar federal statute then in effect (the "Federal Act") and the
Delaware General Corporation Law (the "DGCL") and any applicable state
securities statute (collectively, the "Securities Laws").
3. The holder of this Warrant, by acceptance hereof, acknowledges and
agrees that, prior to the disposition of any shares of Common Stock theretofore
purchased upon the exercise hereof Under circumstances that might require
registration of such shares under the Securities Laws, such holder shall
therefore comply with the provisions of the following subdivisions:
(a) If, in the opinion of the Company's counsel, the proposed
disposition does not require registration under the Securities Laws, of
the shares of Common Stock issuable or issued upon the exercise of this
Warrant, the Company shall, as promptly as practicable, notify the
holder hereof of such opinion, whereupon such holder shall be entitled
to dispose of such shares theretofore issued upon the exercise hereof,
all in accordance with the terms of the notice delivered by such holder
to the Company.
(b) If, in the opinion of the Company's counsel, such proposed
disposition requires a registration of the shares of Common Stock
issuable or issued upon the exercise of this Warrant, the Company shall
promptly give written notice to all then-holders of the Warrants, at
the respective addresses thereof shown on the books of the Company, of
a proposed registration under the Securities or of a post-effective
amendment to the Company's Registration Statement previously filed,
with respect to shares of Common Stock issuable or issued upon the
exercise of the Warrants, and the Company shall, as expeditiously as
possible, use its best efforts to effect such registration or
post-effective amendment, under such Securities Laws, provided the
participating holders bear all expenses pro rata, including but not
limited to legal, accounting and printing expenses, of the shares of
Common Stock issuable or issued upon the exercise of this Warrant, all
to the extent requisite to permit the sale of the Common Stock referred
to in the foregoing clause, upon the terms of offering supplied in
writing to the Company by the participating holders thereof, and upon
the effectiveness of such registration or pro rata, keep effective such
registration or post-effective amendment and, from time to time, amend
or supplement the prospectus used in connection therewith, for the
period and to the extent necessary in order to comply with the
Securities Laws with respect to the Common Stock referred to in the
foregoing clause during such period. Notwithstanding the foregoing, the
Company shall not be required to effect more than one registration or
post-effective amendment pursuant to this Paragraph 3(b).
(c) If any shares of Common Stock issuable pursuant to this
Warrant require declaration or registration with, or approval of, any
governmental official or authority (other than registration under the
Securities Laws) before shares issued pursuant hereto may be
transferred, or before such shares may be issued on the exercise
hereof, the Company, at the participating warrant holders expense pro
rata, will take all requisite action in connection with such
declaration, and will use its best efforts to cause such shares and/or
this Warrant to be duly registered or approved, as may be required.
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4. The Company covenants and agrees that all shares that may be issued
upon the exercise of the rights represented by this Warrant will, upon issuance,
be validly issued, fully paid and nonassessable, and free from all taxes, liens
and charges with respect to the use thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue). The Company further
covenants and agrees that, during the period within which the rights represented
by this Warrant may be exercised, the Company will at times have authorized, and
reserved, a sufficient number of shares of its Common Stock to provide for the
exercise of the rights represented by this Warrant, and will, at its expense,
expeditiously upon each such reservation of shares, procure the listing thereof
(subject to issuance or notice of issuance) on all stock exchanges, if any, on
which the COMMON STOCK is then listed.
5. In the event that the Company shall, at any time or from time to
time during the period of this Warrant shall be exercisable, issue any shares of
Common Stock (other than shares issuable pursuant to options outstanding as of
June 20, 1994 and shares issuable pursuant to incentive stock plans adopted for
benefit of the Company's employees) for a consideration per share less than the
Warrant purchase price in effect immediately prior to the issuance of such
shares, or without consideration, then, and thereafter successively upon each
such issuance, the Warrant purchase price in effect immediately prior to the
issuance of such shares shall forthwith be reduced to a price (calculated to the
nearest full cent) determined by dividing (a) an amount equal to (i) the total
number of shares of Common Stock outstanding immediately prior to such issuance,
multiplied by the Warrant purchase price in effect immediately prior to such
issuance, plus (ii) the consideration, if any, received by the Company upon such
issuance, by (b) the total number of shares of Common Stock outstanding
immediately after such issuance. After each adjustment of the Warrant purchase
price, the total number of shares of Common Stock purchasable upon exercise of
this Warrant shall be proportionately adjusted, that is, adjusted to such a
number of shares as the Warrant purchase price, multiplied by the number of
shares of Common Stock, will pay for at the adjusted Warrant purchase price. For
purposes of this Paragraph 5, the following provisions shall be applicable:
(a) In the case of the issuance of shares of Common Stock or
other securities of the Company for cash, the consideration received by
the Company therefor shall be deemed to be the cash proceeds received
by the Company therefor, less any commissions or other expenses paid or
incurred by the Company for any underwriting of, or otherwise in
connection with, the issuance thereof.
(b) In case of the issuance of shares of Common Stock or other
securities of the Company for a consideration other than cash, or a
consideration a part of which shall be other than cash, the amount of
the consideration received by the Company therefor shall be deemed to
be the cash proceeds, if any, received by the Company, plus the fair
market value of the consideration other than cash, as determined by the
Board of Directors of the Company, less any commissions or other
expenses paid or incurred by the Company for any underwriting of, or
otherwise in connection with, such issuance; provided, however, that
the amount of such consideration other than cash shall in no event
exceed the cost thereof as recorded on the books of the Company.
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(c) In case of the issuance by the Company of (i) any security
that is convertible into or exchangeable for shares of Common Stock, or
(ii) any rights, warrants (other than these Warrants) or options to
purchase shares of Common Stock, the Company shall be deemed to have
issued the maximum number of shares of Common Stock into which such
convertible or exchangeable securities may be converted or exchanged,
or the maximum number of shares of Common Stock deliverable upon the
exercise of such rights, warrants or options, as the case may be, for
the consideration (determined as provided in Paragraphs 5(a) and 5(b)
above) received by the Company for such convertible or exchangeable
securities, or for such rights or options, as the case may be, plus the
minimum aggregate price at which shares of Common Stock are to be
delivered upon the exercise of such rights, warrants or options, as the
case may be. On the expiration of such rights, warrants or options, or
the termination of such right to convert or exchange, the Warrant
purchase price hereunder shall be readjusted to such Warrant purchase
price as would have obtained had the adjustments made upon the issuance
of such rights, warrants or options, or convertible or exchangeable
securities been made upon the basis of the delivery of, and receipt of
the consideration or adjustment payment, if any, actually paid for,
only the number of shares of Common Stock actually delivered upon the
exercise of such rights, warrants or options, or upon the conversion or
exchange of such securities. Except as provided in the next preceding
sentence, no further adjustment of the Warrant purchase price shall be
made as a result of the actual issuance of shares of Common Stock
referred to in this Paragraph 5(c).
(d) The consideration for any securities issued as a stock
dividend shall be deemed to be zero.
(e) The number of shares of stock of any class at any time
outstanding shall include all shares of stock of that class then owned
or held by or for the account of the Company.
(f) If at any time or from time to time, the Company shall, by
subdivision, consolidation or reclassification of shares, or otherwise,
change as a whole the outstanding shares of Common Stock into a
different number or class of shares, the number and class of shares as
so changed shall, for the purposes of each Warrant and the terms and
conditions hereof, replace the shares outstanding immediately prior to
such change, and the Warrant purchase price in effect, and the number
of shares purchasable under each Warrant, immediately prior to the date
on which such change shall become effective, shall be proportionately
adjusted.
(g) Irrespective of any adjustment or change in the Warrant
purchase price or the number of shares of Common Stock actually
purchasable under each warrant of like tenor, the Warrants theretofore
and thereafter issued may continue to express the Warrant purchase
price per share and the number of shares purchasable thereunder as the
Warrant purchase price per share and the number of shares purchasable
were expressed on the Warrants when initially issued.
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6. If at any time while any Warrant is outstanding, the Company shall
consolidate with or merge into another corporation, the holder hereof shall
thereafter be entitled upon exercise hereof to purchase, with respect to each
share of Common Stock purchasable hereunder immediately prior to the date on
which such consolidation or merger shall become effective, the securities or
property to which a holder of one share of Common Stock would have been entitled
upon such consolidation or merger, without any change in, or payment in addition
to, the Warrant purchase price in effect immediately prior to such merger or
consolidation, and the Company shall take such steps in connection with such
consolidation or merger as may be necessary to assure that all the provisions of
each Warrant shall thereafter be applicable, as nearly as reasonably may be, in
relation to any securities or property thereafter deliverable upon the exercise
of each Warrant. The Company shall not effect any such consolidation or merger
unless prior to the consummation thereof the successor corporation (if other
than the Company) resulting therefrom shall assume, by written instrument
executed and mailed to the registered holder of each Warrant at the address of
such holder such securities or property as in accordance with the foregoing
provisions such holder shall be entitled to purchase.
7. If the Company shall at any time or from time to time (a)
distribute (otherwise than as a dividend in cash, or in Common Stock or
securities convertible into, or exchangeable for Common Stock) to the holders of
Common Stock, or grant any rights to such holders to acquire, assets without any
consideration paid or to be paid by them, or for a consideration less than the
fair market value of such assets, as determined by the Board of Directors of the
Company, or (b) declare a dividend upon the Common Stock (to the extent payable
otherwise than out of earnings or earned surplus, as indicated by the accounting
treatment of such dividend in the books of the Company, and otherwise than in
Common Stock, or securities convertible into, or exchangeable for, Common
Stock), the Company shall reserve, and the holder of each Warrant shall
thereafter upon exercise thereof be entitled to receive, for each share of
Common Stock purchaseable thereunder on the record date established by the
Company for the determination of holders of Common Stock entitled to receive
such distribution, right or dividend (or if no such record date shall have been
established, on the date of such distribution, grant of such right or payment of
such dividend), and without increase in, or, except in respect of the
consideration, if any, paid for such assets by stockholders, payment in addition
to, the then current Warrant purchase price per share, (i) the amount of such
assets that would have been distributable to, or as to which such right would
have been granted to, the holder thereof, or (ii) the amount of such dividend
(to the extent thereof above-stated) that such holder would have received, had
such holder been a holder of one share of Common Stock on such record (or other)
date.
8. Upon the happening of any event requiring an adjustment of the
Warrant purchase price hereunder, the Company shall forthwith give written
notice thereof to the registered holder of each Warrant, stating the adjusted
Warrant purchase price and the adjusted number of shares of Common Stock
purchaseable upon the exercise thereof resulting from such event, and setting
forth in reasonable detail the method of calculation and the facts on which
such calculation is based. The certificate of the Company's independent public
accountants shall be conclusive evidence of the correctness of any computation
made hereunder. In case any voluntary or involuntary dissolution, liquidation
or winding-up of the Company shall at any time be proposed, the Company shall
give at
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least twenty (20) days' prior written notice thereof to the registered holder of
each Warrant, stating the date on which such event is to take place and the date
(which shall be at least twenty days after the giving of such notice) as of
which the holders of Common Stock of record shall be entitled to exchange their
Common Stock for securities or other property deliverable upon such dissolution,
liquidation or winding-up (on which date, in the event such dissolution,
liquidation or winding-up shall actually take place, each Warrant and all rights
with respect thereto shall terminate). Notices pursuant to this Paragraph shall
be given by first class mail, postage prepaid, addressed to the registered
holder of each Warrant at the address of such holder appearing in the records of
the Company.
9. In case, at any time during the period this Warrant shall be
exercisable,
(a) the Company shall pay any dividend payable in stock
on its Common Stock, or make any distribution (other than case
dividends paid at an established annual or quarterly rate) to the
holders of its Common Stock;
(b) the Company shall offer for subscription pro rata to
the holders of its Common Stock any additional shares of stock of any
class, or other rights;
(c) there shall be any capital reorganization, or
reclassification of the capital stock of the Company, or consolidation
or merger of the Company with, or sale of all or substantially all of
its assets to, another corporation; or
(d) there shall be a voluntary or involuntary
dissolution, liquidation or winding-up of the Company;
then, in any one or more of such cases, the Company shall give to the holder of
this Warrant (i) at least twenty days' prior written notice of the date on which
the books of the Company shall close or a record shall be taken for such
dividend, distribution or subscription rights, or for determining rights to vote
in respect of any such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding-up, and (ii) in the case of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding-up, at least twenty days' prior written notice of the
date when the same shall take place. Such notice in accordance with the
foregoing clause (i) shall also specify, in the case of any such dividend,
distribution or subscription rights, the date on which the holders of Common
Stock shall be entitled thereto, and such notice in accordance with the
foregoing clause (ii) shall also specify when the holders of Common Stock shall
be entitled to exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding-up, as the case may be. Each such
written notice shall be given by first class mail, postage prepaid, addressed to
the holder of this Warrant at the address of such holder as shown on the books
of the Company.
10. As used herein, the term "Common Stock" shall mean and include
the Company's Common Stock authorized on the date hereof, and shall also include
any capital stock of any class of
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the Company thereafter authorized that shall not be limited to a fixed use or
percentage in respect of the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding-up of the Company; provided, that the shares
purchasable pursuant to this Warrant shall include only shares of such class
referred to in the first paragraph hereof designated in the Company's
Certificate of Incorporation as Common Stock on the date hereof, or, in case of
any reorganization, reclassification, consolidation, merger or sale of assets of
the character referred to in Paragraph 5 hereof, the stock, securities or assets
provided for in such paragraph.
11. This Warrant is exchangeable, upon its surrender by the
registered holder at such office of the Company, for new Warrants of like tenor,
representing, in the aggregate, the right to subscribe for and purchase the
number of shares that may be subscribed for and purchased hereunder, each of
such new Warrants to represent the right to subscribe for and purchase such
number of shares as shall be designated by the registered holder at the time of
such surrender. Upon receipt of evidence satisfactory to the Company of the
loss, theft, destruction, upon delivery of a bond of indemnity satisfactory to
the Company, or, in the case of any such mutilation, upon surrender or
cancellation of this Warrant, the Company will issue to the registered holder a
new Warrant of like tenor, in lieu of this Warrant, representing the right to
subscribe for and purchase the number of shares that may be subscribed for and
purchased hereunder. Nothing herein is intended to authorize the transfer of
this Warrant, except as permitted under Paragraph 2.
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IN WITNESS WHEREOF, the undersigned has caused this Warrant to be
signed by its duly authorized officers under its corporate seal, and to be
dated this 25th day of August, 1997.
INDUS INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx
Chairman of the Board and
Chief Executive Officer
Attest:
/s/ Xxxx Xxxxxx
------------------------------
Xxxx Xxxxxx
Secretary
AMENDMENT TO STOCK PURCHASE WARRANT
This Amendment to Stock Purchase Warrant is made this 23rd day of
October, 2001, by Indus International, Inc., a Delaware corporation (the
"Company"), in favor of " Warburg, Xxxxxx Investors, L.P. (the "Warrant
Holder").
WHEREAS, the Company has previously granted the Warrant Holder a Stock
Purchase Warrant (No. CS-8) to purchase 304,533 shares of the Company's Common
Stock at a price of Two Dollars and Seventy-Nine Cents ($2.79) per share at any
time from June 20, 1994 to and including June 20, 2004 (the "Warrant"); and
WHEREAS, the Company desires to amend the terms of the Warrant to add a cashless
exercise feature;
NOW THEREFORE, Section 1 of the Warrant is hereby amended and replaced
in its entirety as specified below, and a new Section 12 is hereby added as
specified below. All other terms and conditions the agreement shall remain in
full effect.
1. The rights represented by this Warrant may be
exercised by the holder hereof, in whole or in part (but not as to a
fractional share of Common Stock), by the surrender of this Warrant
(properly endorsed, if required), at the principal office of the
Company (or such other office as the Company may designate by notice in
writing to the holder hereof). Unless the exercise is a "cashless
exercise" as described below, such surrender of the Warrant shall be
accompanied by full payment in cash or by certified check or bank draft
of the purchase price for such Warrant Shares. The Company agrees that
the shares so purchased shall be deemed to be issued to the holder
hereof as the record owner of such shares, as of the close of business
of the date on which this Warrant shall have been surrendered and
payment made for such shares. Certificates for the shares so purchased
shall be delivered to the holder hereof within a reasonable time, not
exceeding ten (10) days, after the rights represented by this Warrant
shall have been so exercised. The Company may permit the Warrant Holder
to pay the exercise price and any applicable taxes through a cashless
exercise by withholding from the Warrant Shares a number of shares of
Common Stock having a value equal to the exercise price. The Fair
Market Value of the Common Stock as of the last trading day immediately
prior to the exercise date shall be used in valuing the Warrant Shares
used in payment of the exercise price. Alternatively, to the extent
permitted under Regulation T of the Federal Reserve Board and subject
to applicable securities laws, the Warrant may be exercised through a
broker in a cashless exercise whereby the broker sells the Warrant
Shares and delivers cash sales proceeds to the Company in payment of
the exercise price and any applicable taxes. In such case, the date of
exercise shall be deemed to be the date on which notice of exercise is
received by the Company, and the exercise price shall be delivered to
the Company on the settlement date.
12. As used herein, the term "Fair Market Value," on any date,
shall mean (i) if the Common Stock is listed on a securities exchange or is
traded on the Nasdaq National Market, the closing sales price on such exchange
or market on such date or, in
the absence of reported sale on such date, the closing sales price on the
immediately preceding date on which sales were reported, or (ii) if the Common
Stock is not listed on a securities exchange or traded on the Nasdaq National
Market, the mean between any quoted bid and offered prices for such date,
provided that if it is determined that the fair market value is not properly
reflected by such quotations, Fair Market Value will be determined by such other
method as the Board of Directors of the Company, or a duly authorized committee
thereof, determines in good faith to be reasonable.
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IN WITNESS WHEREOF, the undersigned has caused this Amendment to Stock
Purchase Warrant to be signed by its duly authorized officers under its
corporate seal, and to be dated this 23rd day of October, 2001.
INDUS INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Xxxx X. Xxxxxx
President and Chief Executive Officer
(Corporate Seal) Attest: /s/ X. Xxxxxxx Highland
---------------------------------
X. Xxxxxxx Highland
Secretary
ACCEPTED AND AGREED this 23rd day of October, 2001:
/s/ Warburg Pincus Investors, LP
/s/ Warburg Pincus LLC as General Partner
-----------------------------------------
Name: /s/ Xxxxx Xxxxxx
-----------------------------------------
Title: /s/ General Partner
-----------------------------------------
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