Exhibit 9.1
INDUS VOTING AGREEMENT
This Voting Agreement (this "Voting Agreement") is made and entered into as
of June 5, 1997 (the"Effective Date") between TSW International, a Georgia
corporation ("TSW") and Xxxxxx X. Xxxxxx, Xxxxxxx X. XxxXxxxx, Xxxxxxx X. Xxxxx
and Xxxxxxx X. Xxxxx ("Shareholders").
RECITALS
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A. This Voting Agreement is entered into pursuant to that certain
Agreement and Plan of Merger and Reorganization dated as of June 5, 1997, as
such may be amended (the "Plan of Reorganization"), entered into by and among
THE INDUS GROUP, Inc., a California corporation ("INDUS"), Newco Group, Inc., a
California corporation ("Newco") and TSW. The Plan of Reorganization provides
for the formation of a California corporation ("Sub"), a wholly owned subsidiary
of Newco, and the statutory merger of Sub with and into INDUS (the "INDUS
Merger"), all pursuant to the terms and conditions of the Plan of Reorganization
and the Agreement of Merger to be entered into between Sub and INDUS in the form
attached to the Plan of Reorganization (the "Agreement of Merger"). The Plan of
Reorganization and the Agreement of Merger are collectively referred to herein
as the "Merger Agreements." Capitalized terms used herein and not defined herein
shall have the meanings that such terms have in the Plan of Reorganization.
B. The Merger Agreements provide for the conversion of all of the issued
and outstanding stock of INDUS at the Effective Time of the Merger into shares
of Newco's Common Stock, all as more particularly set forth in the Plan of
Reorganization.
C. As a condition to the willingness of TSW to enter into the Plan of
Reorganization, TSW has required that each Shareholder agree, and in order to
induce TSW to enter into the Plan of Reorganization each Shareholder has agreed,
to enter into this Voting Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. VOTING OF INDUS SECURITIES
1.1 INDUS Securities. Each Shareholder's signature page attached hereto
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sets forth all shares of INDUS capital stock and any other securities of INDUS
owned by each Shareholder, including all securities of INDUS as to which each
Shareholder has sole or shared voting or investment power, and all rights,
options and warrants to acquire shares of capital stock or other securities of
INDUS granted to or held by each Shareholder (such shares of INDUS capital
stock, other securities of INDUS and rights, options and warrants to acquire
shares of INDUS capital stock and other securities of INDUS are hereinafter
collectively referred to as "INDUS Stock"). As used herein, the term "New INDUS
Securities" means, collectively, any and all shares of INDUS capital stock,
other securities of INDUS and rights, options and warrants to acquire shares of
INDUS capital
stock and other securities of INDUS that each Shareholder may purchase or
otherwise acquire any interest in (whether of record or beneficially), on and
after the Effective Date of this Voting Agreement and prior to the Expiration
Date (as defined below). All New INDUS Securities will be subject to the terms
of this Voting Agreement to the same extent and in the same manner as if they
were INDUS Stock. The INDUS Stock and the New INDUS Securities shall be
collectively referred to herein as the "INDUS Securities." As used herein, the
term "Expiration Date" means the earliest to occur of (i) the Effective Time or
(ii) such time as the Plan of Reorganization is terminated in accordance with
its terms.
1.2 Voting Agreement. Each Shareholder hereby agrees with TSW that, prior
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to the Expiration Date, at any meeting of the shareholders of INDUS, however
called, and in any written action by consent of shareholders of INDUS, unless
otherwise directed in writing by TSW, each Shareholder shall vote the INDUS
Securities:
(i) for the approval of the Merger Agreements, and the transactions
contemplated thereby, including the INDUS Merger, and for the approval of any
action required in furtherance hereof and thereof.
(ii) against any action or agreement that would result in a breach of
any representation, warranty, covenant or obligation of INDUS in the Plan of
Reorganization; and
(iii) against the following actions (other than those actions that
relate to the INDUS Merger and the transactions contemplated by the Plan of
Reorganization): (A) any merger, consolidation or other business combination
involving INDUS or any subsidiary of INDUS with any party other than Newco, TSW
or their respective affiliates; (B) any sale, lease or transfer of more than any
significant part of the assets of INDUS or any subsidiary of INDUS to any party
other than Newco, TSW or their affiliates (except in the ordinary course of
business); (C) any reorganization, recapitalization, dissolution or liquidation
of INDUS or any subsidiary of INDUS; (D) any change in a majority of the board
of directors of INDUS; (E) any amendment to the INDUS Articles of Incorporation,
(F) any material change in the capitalization of INDUS or INDUS's corporate
structure; or (G) any other action which is intended, or could reasonably be
expected to, impede, interfere with, delay, postpone, discourage or adversely
affect the Merger or any of the other transactions contemplated by the Plan of
Reorganization or this Voting Agreement.
Prior to the Expiration Date, each Shareholder shall not enter into any
agreement or understanding with any person to vote or give instructions in any
manner inconsistent with clause "(i)," "(ii)" or "(iii)" of the preceding
sentence.
1.3 Proxy: Further Assurances.
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(i) Contemporaneously with the execution of this Voting Agreement,
each Shareholder shall deliver to TSW a proxy in the form attached hereto as
Attachment 2, which shall be
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irrevocable to the fullest extent permitted by law, with respect to the INDUS
Securities (the "Proxy").
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(ii) Each Shareholder shall perform such further acts and execute
such further documents and instruments as may reasonably be required to vest in
TSW the power to carry out and give effect to the provisions of this Voting
Agreement.
SECTION 2. WAIVER OF APPRAISAL RIGHTS
Shareholder hereby waives any rights of appraisal and any dissenters'
rights that Shareholder may have in connection with the INDUS Merger.
SECTION 3. NO SOLICITATION
Each Shareholder covenants and agrees with TSW that, during the period
commencing on the date of this Voting Agreement and ending on the Expiration
Date, each Shareholder shall not, directly or indirectly, (i) solicit or
initiate discussions or engage in negotiations with any person other than TSW or
take any action intended, designed or reasonably likely to facilitate the
efforts of any person, other than TSW, relating to the possible acquisition of
INDUS (whether by way of merger, purchase of its capital stock, purchase of
assets or otherwise) or any material portion of its capital stock or assets
("Acquisition Proposal"), (ii) furnish any nonpublic information regarding INDUS
to any person in connection with or in response to an Acquisition Proposal or
potential Acquisition Proposal; (iii) engage in discussions with any person with
respect to any Acquisition Proposal; (iv) approve, endorse or recommend any
Acquisition Proposal; or (v) enter into any letter of intent or other similar
document or any contract contemplating or otherwise relating to any Acquisition
Proposal. Each Shareholder shall immediately cease any existing discussions
with any persons other than TSW that relate to any Acquisition Proposal.
SECTION 4. OBLIGATIONS AS A DIRECTOR AND/OR OFFICER OF INDUS
If at any time prior to the Expiration Date any Shareholder or a
representative of any Shareholder is a member of the Board of Directors of INDUS
("Director") or an officer of INDUS, nothing in this Agreement shall limit or
restrict the Director or officer in acting in his capacity as a Director or
officer, as the case may be, of INDUS and in the exercise of his fiduciary
duties and responsibilities in such capacity, it being agreed and understood
that this Agreement shall apply to such Shareholder solely in his capacity as a
shareholder and shall not apply to the Director's or officer's actions,
judgments or decisions as a Director or officer of INDUS.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SHAREHOLDER
5.1 Representations, Warranties and Covenants of Shareholders. Each
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Shareholder represents, warrants and covenants as follows:
(i) Authority. Shareholder has full power and authority to enter
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into, execute, deliver and perform Shareholder's obligations under this Voting
Agreement and to make the representations, warranties and covenants herein
contained.
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(ii) INDUS Securities Owned. Except as otherwise disclosed in the
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INDUS Disclosure Letter, at the date hereof, all the INDUS Stock owned by
Shareholder are, and at all times until and through the Expiration Date all the
INDUS Securities owned by Shareholder will be, free and clear of any rights of
first refusal, co-sale rights, security interests, liens, pledges, claims,
options, charges or other encumbrances.
(iii) Transfer Restrictions on INDUS Securities. Shareholder agrees
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with TSW not to sell, transfer, encumber or dispose of, or offer to sell,
transfer, encumber or dispose of any INDUS Securities (other than to a party
that agrees in writing to be bound by the terms hereof and if such Transfer is
not restricted by the Affiliate Agreement dated the date hereof between
Shareholder and INDUS, Newco and TSW) until the INDUS Shareholder Approval is
granted.
(iv) Further Assurances. Shareholder agrees to execute and deliver
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any additional documents reasonably necessary or desirable, in the opinion of
INDUS or TSW, to carry out the purposes and intent of this Voting Agreement.
SECTION 6. MISCELLANEOUS
6.1 Notices. Any notice or other communication required or
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permitted to be given under this Voting Agreement will be in writing, will be
delivered personally, by telecopier (with a hard copy also mailed), or by
registered or certified mail, postage prepaid and will be deemed given upon
delivery, if delivered personally, one business day after transmission by
telecopier with confirmation of receipt, or three (3) days after deposit in the
mails, if mailed, to the following addresses:
(i) If to TSW:
TSW, Inc.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Chief Executive Officer
With a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx
Telecopier: (000) 000-0000
(ii) If to Shareholder:
To the address for notice for such Shareholder set forth on the
relevant Attachment I hereto,
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With a copy to:
Wilson, Sonsini, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Xx., Esq.
Telephone: (000) 000-0000
or to such other address as a party may have furnished to the other parties in
writing pursuant to this Section 6. 1.
6.2 Termination. This Voting Agreement shall be terminated and shall be
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of no further force and effect upon the Expiration Date.
6.3 Counterparts. This Voting Agreement may be executed in any number of
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counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument. This Voting Agreement will become binding when one or more
counterparts hereof, individually or taken together, will bear the signatures of
all parties reflected hereon as signatories.
6.4 Assignment; Binding Upon Successors and Assigns. Neither party hereto
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may assign any of its rights or obligations hereunder without the prior written
consent of the other party hereto. This Voting Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
6.5 Waiver and Amendment. The waiver by a party of any breach hereof or
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default in the performance hereof will not be deemed to constitute a waiver of
any other default or any succeeding breach or default. This Voting Agreement
may be amended by the parties hereto upon the execution and delivery of a
written agreement executed by the parties hereto.
6.6 Governing Law. This Voting Agreement shall be governed by the laws of
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the State of Delaware without giving effect to the principles of conflicts of
laws thereof.
6.7 Severability. If any term, provision, covenant or restriction of this
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Voting Agreement (or of the Plan of Reorganization) is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Voting Agreement (or
of the Plan of Reorganization, as the case may be) will remain in full force and
effect and will in no way be affected, impaired or invalidated. The parties
further agree to replace such invalid or unenforceable term with a valid and
enforceable provision that will achieve, to the greatest extent possible, the
economic, business and other purposes of the invalid or unenforceable provision.
6.8 Construction of Agreement. This Voting Agreement has been negotiated
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by the respective parties hereto and their attorneys and the language hereof
will not be construed for or against either party. A reference to a Section
will mean a Section in this Voting Agreement unless
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otherwise explicitly set forth. The titles and headings herein are for reference
purposes only and will not in any manner limit the construction of this Voting
Agreement which will be considered as a whole.
6.9 Attorneys' Fees. Should suit be brought to enforce or interpret any
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part of this Voting Agreement, the prevailing party will be entitled to recover,
as an element of the costs of suit and not as damages, reasonable attorneys'
fees to be fixed by the court (including without limitation, costs, expenses and
fees on any appeal). The prevailing party will be entitled to recover its costs
of suit, regardless of whether such suit proceeds to final judgment.
6.10 Specific Performance; Injunctive Relief. The parties hereto
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acknowledge that TSW will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Shareholders set forth herein. Therefore it is agreed that, in addition to any
other remedies that may be available to TSW upon any such violation, TSW shall
have the right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to TSW at law or in equity.
6.1 Partnership. TSW agrees that if a Shareholder is a limited
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partnership, such Shareholder's general and limited partners shall in no event
be liable for any obligations or liabilities of such Shareholder under this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Voting Agreement
as of the date first set forth above.
TSW INTERNATIONAL, INC.
a Georgia corporation
By:
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Name:
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Title:
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[SIGNATURE PAGE TO INDUS VOTING AGREEMENT]
[SIGNATURES OF SHAREHOLDERS FOLLOW]
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INDUS STOCK
Shareholder's Address for Notice:
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Number of shares of INDUS capital stock
beneficially owned by the undersigned:
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Number of options, warrants or other
convertible securities convertible into
INDUS capital stock beneficially owned by
the undersigned: --------------------------
SIGNATURE:
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Name:
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Title:
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ATTACHMENT 1
IRREVOCABLE PROXY
The undersigned shareholder of THE INDUS GROUP, Inc., a California
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes ______ and TSW International, Inc., a Georgia
corporation ("TSW"), and each of them, the attorneys and proxies of the
undersigned with full power of substitution and resubstitution, to the full
extent of the undersigned's rights with respect to (i) the shares of capital
stock of the Company owned by the undersigned as of the date of this proxy,
which shares are specified on the final page of this proxy, and (ii) any and all
other shares of capital stock of the Company which the undersigned may acquire
after the date hereof until such time as this Proxy terminates in accordance
with its terms. (The shares of the capital stock of the Company referred to in
clauses (i) and (ii) of the immediately preceding sentence are collectively
referred to as the "Shares.") Upon the execution hereof, all prior proxies
given by the undersigned with respect to any of the Shares are hereby revoked,
and no subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, between TSW
and the undersigned (the "Voting Agreement"), and is granted in consideration of
TSW entering into the Agreement and Plan of Merger and Reorganization, dated as
of the date hereof, among TSW, Newco Group, Inc. and the Company (the
"Reorganization Agreement"). Capitalized terms used but not otherwise defined
in this proxy have the meanings ascribed to such terms in the Reorganization
Agreement.
The attorneys and proxies named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the earlier to occur (the
"Expiration Date") of (i) the valid termination of the Reorganization Agreement
or (ii) the Effective Time (as defined in the Reorganization Agreement) at any
meeting of the shareholders of the Company, however called, or in any written
action by consent of shareholders of the Company:
(i) for the approval of the Merger Agreements, and the transactions
contemplated thereby, including the INDUS Merger, and for the approval of any
action required in furtherance hereof and thereof.
(ii) against any action or agreement that would result in a breach of any
representation, warranty, covenant or obligation of the Company in the Plan of
Reorganization; and
(ii) against the following actions (other than those actions that relate to
the INDUS Merger and the transactions contemplated by the Plan of
Reorganization): (A) any merger, consolidation or other business combination
involving the Company or any subsidiary of the Company with any party other than
Newco, TSW or their respective affiliates; (B) any sale, lease or transfer of
more than any significant part of the assets of the Company or any subsidiary of
the Company to any party other than Newco, TSW or their respective affiliates
(except in the ordinary course of business); (C) any reorganization,
recapitalization, dissolution or liquidation of the Company or any subsidiary
of the Company; (D) any change in a majority of the board of directors of the
Company; (E) any amendment to the Company Articles of Incorporation; (F) any
material change in the capitalization of the Company or the Company's corporate
structure except as contemplated by the Reorganization Agreement; or (G) any
other action which is intended, or could reasonably be expected to, impede,
interfere with, delay, postpone, discourage or adversely affect the INDUS Merger
or any of the other transactions contemplated by the Reorganization Agreement or
the Voting Agreement.
Prior to the Expiration Date, at any meeting of the shareholders of the
Company, the attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares in their discretion with respect to (i)
any Acquisition Proposal (as such term is defined in the Voting Agreement) and
any related transaction or agreement and (ii) any action which is intended, or
could reasonably be expected, to facilitate the consummation of any Acquisition
Proposal.
The undersigned shareholder may vote the Shares on all other matters. This
proxy shall be binding upon the heirs, successors and assigns of the undersigned
(including any transferee of any of the Shares).
Any obligation of the undersigned hereunder shall be binding upon the
heirs, successors and assigns of the undersigned (including any transferee of
any of the Shares).
This proxy shall terminate upon the Expiration Date.
Dated:
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Name:
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Number of Shares of Company
Common Stock:
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