EXHIBIT 10.2.1
The System Works, Inc.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
SECURITIES PURCHASE AGREEMENT
Dated as of June 20, 1994
To Warburg, Xxxxxx Investors, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The System Works, Inc., a Georgia corporation (the "Company"), hereby
agrees with Warburg, Xxxxxx Investors, L.P., a Delaware limited partnership (the
"Purchaser") as follows:
SECTION 1. AUTHORIZATION OF SHARES
(a) The Board of Directors of the Company has approved the Restated
Articles of Incorporation in the form attached hereto as Exhibit A (the
"Articles Amendment") so as to authorize 6,000,000 shares of Common Stock, $0.01
par value per share (the "Common Stock"); reclassify the outstanding shares of
Class A and Class B common stock, $0.01 par value per share (the "Old Common
Stock") into shares of Common Stock (the "Common Reclassification"); authorize
1,897,028 shares of preferred stock, $0.01 par value per share, designated as
Series A Preferred Stock (the "Series A Preferred Stock"), having the rights,
restrictions, privileges, redemption rights and preferences as set forth herein
and in the Articles Amendment; authorize 393,965 shares of preferred stock,
$0.01 par value per share, designated as Series B Preferred Stock (the "Series B
Preferred Stock"), having the rights, restrictions, privileges, redemption
rights and preferences as set forth herein and in the Articles Amendment; and
reclassify the outstanding shares of Series C Preferred Stock and Series D
Preferred Stock into Series A Preferred Stock (the "Preferred
Reclassification").
Warburg, Xxxxxx Investors, L.P.
June 20, 1994
Page -2-
(b) The Company shall, prior to the Closing Date (as defined
below), (i) convene a meeting of its shareholders for the purpose of obtaining
approval by the shareholders of the Articles Amendment, to the extent required
by law, and (ii) file with the Secretary of the State of Georgia the Articles
Amendment.
SECTION 2. PURCHASE AND SALE OF SECURITIES AND WARRANT
(a) Subject to the terms and conditions set forth in this Agreement
and in reliance upon the Company's and the Purchaser's representations set forth
herein, on the Closing Date the Company shall sell to the Purchaser, and the
Purchaser shall purchase from the Company, at a purchase price equal to $7.615
per share, 393,965 shares of Series B Preferred Stock (the "Purchased Stock")
for an aggregate purchase price of $3,000,000. Such sale and purchase shall be
effected on the Closing Date by the Company executing and delivering to the
Purchaser, duly registered in the Purchaser's name, stock certificates
evidencing the 393,965 shares of Series B Preferred Stock to be purchased,
against payment by Warburg of an aggregate amount of $3,000,000, which payment
shall be effected by the wire transfer to the Company, at such account or
accounts as the Company shall specify, of $3,000,000.
(b) Subject to the terms and conditions set forth in this Agreement
and in reliance upon the Company's and the Purchaser's representations set forth
herein, on the Closing Date the Company shall sell to the Purchaser, and the
Purchaser shall purchase from the Company, $4,000,000 of a subordinated floating
rate note due July 31, 1999 having the terms and conditions set forth on Exhibit
"B" attached hereto (the "Note") for an aggregate purchase price of $4,000,000.
As used herein, the Purchased Stock and the Note shall sometimes be collectively
referred to herein as the "Purchased Securities." Such sale and purchase shall
be effected on the Closing Date by the Company executing and delivering to the
Purchaser the appropriate form of subordinated note evidencing the $4,000,000 of
the Note to be purchased, against payment by Warburg of an aggregate amount of
$4,000,000, which payment shall be effected by the wire transfer to the Company,
at such account or accounts as the Company shall specify, of $4,000,000.
(c) Simultaneously with the sale of the Purchased Securities to the
Purchaser, the Company will utilize the proceeds from such sale to repurchase
from Xxxxx X. Xxxxxx an aggregate of 785,000 shares of common stock, at a
purchase price of $8.9172 per share. Such purchase shall be pursuant to the
Stock Repurchase Agreement.
(d) Simultaneously with the sale of the Purchased Securities to the
Purchaser, the Company will issue to the Purchaser a stock purchase warrant (the
Warburg, Xxxxxx Investors, L.P.
June 20, 1994
Page -3-
"Warrant"), in the form attached hereto as Exhibit "C" providing for the
purchase of 111,356 shares of the Common Stock of the Company at a price of
$7.615 per share.
(e) The transactions described in subsections (a), (b), (c) and (d)
above are cross conditioned so that they shall only occur on the Closing Date if
all of such transactions occur on the Closing Date.
(f) The closing of such sales and purchases shall take place at
such date as is specified as the "Closing Date" in the Stock Repurchase
Agreement (the "Closing Date"), at the offices of Xxxxxxxx Xxxxxxx, 000
Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx, or such other location as
the Purchaser and the Company shall mutually select.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser that:
3.1 CORPORATE ORGANIZATION
The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Georgia.
3.2 CAPITALIZATION
(a) On the date hereof, the authorized capital stock of the
Company consists of 4,600,000 shares of Class A Common Stock, 1,100,000 shares
of Class B Common Stock and 1,897,028 shares of preferred stock. The authorized
preferred stock consists of 832,592 shares designated as Series C Preferred
Stock, and 1,064,436 shares designated as Series D Preferred Stock. On the date
hereof, the issued and outstanding shares of capital stock of the Company
consists of 834,016 shares of Class A Common Stock, 0 shares of Class B Common
Stock, 832,592 shares of Series C Preferred Stock and 1,064,436 shares of Series
D Preferred Stock. On the Closing Date, after giving effect to the Common
Reclassification and the Preferred Reclassification and the transaction
contemplated hereby, the authorized capital stock of the Company shall consist
of 6,000,000 shares of Common Stock, 1,897,028 shares of Series A Preferred
Stock and 393,965 shares of Series B Preferred Stock. On the Closing Date,
after giving effect to the Common Reclassification and the Preferred
Reclassification and the transaction contemplated hereby, the issued and
outstanding shares of capital stock of the Company shall consist of 49,016
shares of Common Stock (plus any shares issued as a result of the exercise of
employ stock
Warburg, Xxxxxx Investors, L.P.
June 20, 1994
Page -4-
options subsequent to March 31, 1994), 1,897,028 shares of Series A Preferred
Stock and 393,965 shares of Series B Preferred Stock.
(b) All the outstanding shares of capital stock of the Company
have been duly and validly issued and are fully paid and non-assessable. Upon
the Common Reclassification as contemplated hereby, the shares of Common Stock
will be duly authorized, validly issued, fully paid and non-assessable shares of
the Company, free of all preemptive or similar rights. Upon issuance, sale and
delivery as contemplated by this Agreement, the shares of the Purchased Stock to
be issued hereunder will be duly authorized, validly issued, fully paid and non-
assessable shares of the Company, free of all preemptive or similar rights. The
foregoing representations with respect to preemptive rights are premised, in
each instance, upon the repurchase by the Company of the shares to be purchased
as contemplated by Section 2(c) hereof and the cancellation of such shares.
(c) Except for the conversion and redemption rights in respect
of the Series C Preferred Stock and Series D Preferred Stock (which are to be
reclassified as a part of the Preferred Reclassification and which shall be
provided for in the Articles Amendment in respect of the Series A Preferred
Stock) and the Series B Preferred Stock, and except for the stock options listed
on Schedule 3.2 hereto, there are no shares of Common Stock issuable upon
conversion of any security of the Company nor are there any rights, options or
warrants outstanding or other agreements to acquire shares of Common Stock nor
is the Company contractually obligated to purchase, redeem or otherwise acquire
any of its outstanding shares of Common Stock. Except as disclosed on such
Schedule 3.2, no shareholder of the Company is entitled to any preemptive
rights, rights of first refusal, redemption rights or similar rights.
3.3 CORPORATE PROCEEDINGS, ETC.
(a) The Board of Directors of the Company has duly authorized
the execution and delivery of this Agreement and the performance by the Company
of its obligations hereunder. The Board has authorized the creation and
designation of the Series A Preferred Stock and the Series B Preferred Stock,
the creation of the Common Stock, the Common Reclassification, the Preferred
Reclassification and the issuance and sale of the Note in accordance with this
Agreement and the repurchase and cancellation of shares of common stock
contemplated by Section 2(c) hereof (collectively the "Recapitalization"), and
the Company has reserved for issuance shares of Common Stock initially issuable
upon conversion of the Series A Preferred Stock and the Series B Preferred
Stock. Except for the shareholder action contemplated by Section 6.4 herein, no
other corporate action is necessary to authorize the performance by the Company
of its obligations hereunder.
Warburg, Xxxxxx Investors, L.P.
June 20, 1994
Page -5-
(b) This Agreement constitutes the valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as enforceability may be limited by equitable principles or
bankruptcy, insolvency, reorganization or similar laws from time to time in
effect affecting the enforcement of creditor's rights generally.
3.4 CONSENTS AND APPROVALS
Except for the shareholder action contemplated in Section 6.4
and consents and filings described in Schedule 6.5 hereto, the execution and
delivery by the Company of this Agreement, the performance by the Company of its
obligations hereunder, and the consummation by the Company of the transactions
contemplated hereby do not require the Company to obtain any consent, approval
or action of, or make any filing with or give any notice to, any corporation,
person or firm or any public, governmental or judicial authority.
3.5 FINANCIAL STATEMENTS, MATERIAL LIABILITIES
(a) The Company has previously delivered to the Purchaser its
balance sheet as at March 31, 1994, and the related statement of income,
stockholders' equity and cash flow for the year then ended (the "Financial
Statements"), accompanied by an opinion of KPMG Peat Marwick, independent
certified public accountants. Such financial statements, including the notes
thereto, and subject to any qualifications set forth in such management letters,
have been prepared from the books and records of the Company and present fairly
the financial position and the results of operations and cash flows of the
Company as at and for the period indicated, in each case in conformity with
generally accepted accounting principles ("GAAP") consistently applied.
(b) Except as set forth in the Financial Statements, the
company has no material liabilities or obligations, absolute or contingent,
except (i) obligations and liabilities incurred in the ordinary course of
business since the date of such statement, none of which is material, or (ii)
obligations which are not required to be reflected in the Financial Statements.
3.6 PENDING ACTIONS
There is no action, suit, investigation or proceeding pending
or, to the knowledge of the Company threatened, against the Company or any of
its properties or assets by or before any court, arbitrator or governmental
body, department, commission, board, bureau, agency or instrumentality, which
questions the validity of this Agreement, the
Warburg, Xxxxxx Investors, L.P.
June 20, 1994
Page -6-
Articles Amendment or any action taken or to be taken pursuant hereto or
thereto, or which is reasonably likely to result in a Material Adverse Effect,
and the Company is not in default with respect to any judgment, order, writ,
injunction, decree, or award having applicability to it or its business or
properties which default could reasonably be expected to have a Material Adverse
Effect.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Company as follows:
(a) The Purchaser is acquiring the Purchased Securities (and will
acquire Common Stock upon conversion of the Series A Preferred Stock and Series
B Preferred Stock) for its own account for investment and not with a view
towards the resale, transfer or distribution thereof, nor with any present
intention of distributing such Purchased Securities (or the shares of Common
Stock acquired upon conversion of the Series A Preferred Stock and Series B
Preferred Stock), but subject, nevertheless, to any requirement of law that the
disposition of the Purchaser's property shall at all times be within the
Purchaser's control, and without prejudice to such Purchaser's right at all
times to sell or otherwise dispose of all or any part of such securities under a
registration under the 1933 Act or under an exemption from said registration
available under the 1933 Act.
(b) The Purchaser has full power and legal right to execute and
deliver this Agreement and to perform its obligations hereunder.
(c) The Purchaser is a validly existing legal entity, duly
organized under the laws of the jurisdiction of its organization.
(d) The Purchaser has taken all action necessary for the
authorization, execution, delivery, and performance of this Agreement and its
obligations hereunder, and upon execution and delivery by the Company, this
Agreement shall constitute a valid and legally binding obligation of the
Purchaser.
(e) There are no claims for brokerage commissions or finder's fees
or similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement made by or on behalf of the Purchaser.
(f) The Purchaser has such knowledge and experience in financial
and business matters that the Purchaser is capable of evaluating the merits and
risks of the
Warburg, Xxxxxx Investors, L.P.
June 20, 1994
Page -7-
investment by the Purchaser in the Company as contemplated by this Agreement,
and the Purchaser is able to bear the economic risk of such investment for an
indefinite period of time. The Purchaser has been furnished access to such
information and documents as the Purchaser has requested and has been afforded
an opportunity to ask questions of and receive answers from representatives of
the Company concerning the terms and conditions of this Agreement and the
purchase of securities contemplated hereby.
(g) The execution and delivery by the Purchaser of this Agreement,
the performance by the Purchaser of its obligations hereunder and the
consummation by the Purchaser of the transactions contemplated hereby do not
require the Purchaser to obtain any consent, approval or action of, or make any
filing with or give any notice to, any corporation, person or firm or any
public, governmental or judicial authority, and do not and will not result in a
breach of any of the terms, conditions or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust, credit agreement, note
or other evidence of indebtedness, the Limited Partnership Agreement of the
Purchaser, or other material agreement of the Purchaser or any rule or
regulation of any court or federal or state regulatory board or body or
administrative agency having jurisdiction over the Purchaser or over its
properties or businesses.
SECTION 5. ADDITIONAL COVENANTS OF THE PARTIES.
5.1 RESALE OF SECURITIES
(a) The Purchaser covenants that it will not sell or otherwise
transfer the Purchased Securities purchased hereunder (or any shares of Common
Stock acquired upon conversion of the Series A Preferred Stock or Series B
Preferred Stock) except pursuant to an effective registration under the 1933 Act
or in a transaction which, in the opinion of counsel reasonably satisfactory to
the Company, qualifies as an exempt transaction under the 1933 Act and the rules
and regulations promulgated thereunder and any applicable state securities laws.
(b) The certificates evidencing the Purchased Stock and shares
of Common Stock issuable upon conversion of the Series A Preferred Stock and
Series B Preferred Stock and the Note, will bear a legend substantially
reflecting the foregoing restrictions on the transfer of such securities:
"The securities evidenced hereby have not
been registered under the Securities Act of
1933, as amended or the Georgia Securities Act
of
Warburg, Xxxxxx Investors, L.P.
June 20, 1994
Page -8-
1973, as amended (the "Acts") and may not be
transferred except pursuant to an effective
registration under the Acts or in a
transaction which, in the opinion of counsel
reasonably satisfactory to the Company,
qualifies as an exempt transaction under the
Acts and the rules and regulations promulgated
thereunder."
5.2 COVENANTS PENDING CLOSING
Pending the closing of the transactions contemplated hereby, the
Company will not, without the Purchaser's prior written consent, take any action
which would result in any of the representations or warranties contained in this
Agreement not being true at and as of the time immediately after such action, or
in any of the covenants contained in this Agreement becoming incapable of
performance. The Company will promptly advise the Purchaser of any action or
event of which it becomes aware which has the effect of making incorrect any of
such representations or warranties or which has the effect of rendering any of
such covenants incapable of performance. The Company shall not issue or
purchase shares of capital stock of the Company except pursuant to the terms of
this Agreement and except for the issuance of Class A Common Stock or Old Common
Stock to employees pursuant to the exercise of stock option agreements in
accordance with the Company's Stock Option Plan.
5.3 FURTHER ASSURANCE
Each of the parties shall execute such documents and other papers
and take such further actions as may be reasonably required or desirable to
carry out the provisions hereof and the transactions contemplated hereby. Each
such party shall use its best efforts to fulfill or obtain the fulfillment of
the conditions to the Closing as promptly as practicable.
SECTION 6. PURCHASER'S CLOSING CONDITIONS
The obligation of the Purchaser to purchase and pay for the
Purchased Securities to be purchased by the Purchaser on the Closing Date, as
provided in Section 2 hereof, shall be subject to the performance by the Company
of its agreements theretofore to be performed hereunder and to the satisfaction,
prior thereto or concurrently therewith, of the following further conditions,
except as otherwise waived by the Purchaser in writing:
Warburg, Xxxxxx Investors, L.P.
June 20, 1994
Page -9-
6.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of the Company contained in this
Agreement shall be true on and as of the Closing Date as though such warranties
and representations were made at and as of such date, except as otherwise
affected by the transactions contemplated hereby.
6.2 COMPLIANCE WITH AGREEMENT
The Company shall have performed and complied with all agreements,
covenants and conditions contained in this Agreement which are required to be
performed or complied with by the Company prior to or on the Closing Date.
6.3 APPROVAL OF PROCEEDINGS
All proceedings to be taken in connection with the transactions
contemplated by this Agreement, and all documents incident thereto, shall be
satisfactory in form and substance to the Purchaser and its counsel; and the
Purchaser shall have received copies of all documents or other evidence which
the Purchaser or its counsel may request in connection with such transactions
and of all records of corporate proceedings in connection therewith in form and
substance satisfactory to the Purchaser or its counsel.
6.4 SHAREHOLDER ACTION
The Company shall have convened a meeting of its shareholders at
which the shareholders shall have approved the Articles Amendment as
contemplated by Section 1(b)(i) herein.
6.5 CORPORATE ACTION
The Company shall have filed with the Secretary of the State of
Georgia the Articles Amendment as contemplated by Section 1(b)(ii) herein.
6.6 EXECUTION AND DELIVERY OF STOCK REPURCHASE AGREEMENT
Xxxxx X. Xxxxxx and the Company shall have executed, delivered and
performed to Purchaser the Stock Repurchase Agreement.
Warburg, Xxxxxx Investors, L.P.
June 20, 1994
Page -10-
6.7 EXECUTION AND DELIVERY OF RESTATED STOCKHOLDERS AGREEMENT
Xxxx X. Blend, III shall have executed and delivered to the
Purchaser the Restated Stockholders Agreement in the form of Exhibit D attached
hereto.
6.8 EXECUTION AND DELIVERY OF RESTATED REGISTRATION RIGHTS AGREEMENT
The Restated Registration Rights Agreement in the form of Exhibit E
attached hereto shall have been executed and delivered by the parties thereto.
6.9 EXECUTION OF AGREEMENT WITH XXXXX X. XXXXXX
The Stock Option Cancellation and Severance Agreement between the
Company and Xxxxx X. Xxxxxx in the form of Exhibit F attached hereto shall have
been executed and delivered by the parties thereto.
SECTION 7. COMPANY CLOSING CONDITIONS
The obligation of the Company to issue and deliver the Purchased
Securities to be sold by the Company on the Closing Date, as provided in Section
2 hereof, shall be subject to the performance by the Purchaser of its agreements
theretofore to be performed hereunder and to the satisfaction, prior thereto or
concurrently therewith, of the following further conditions:
7.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of the Purchaser contained in
this Agreement shall be true on and as of the Closing Date as though such
warranties and representations were made at and as of such date, except as
otherwise affected by the transactions contemplated hereby.
7.2 COMPLIANCE WITH AGREEMENT
The Purchaser shall have performed and complied with all agreements,
covenants and conditions contained in this Agreement which are required to be
performed or complied with by the Purchaser prior to or on the Closing Date.
Warburg, Xxxxxx Investors, L.P.
June 20, 1994
Page -11-
7.3 APPROVAL OF PROCEEDINGS
All proceedings to be taken in connection with the transactions
contemplated by this Agreement, and all documents incident thereto, shall be
satisfactory in form and substance to the Company; and the Company shall have
received copies of all documents or other evidence which the Company and its
counsel may reasonably request in connection with such transactions and of all
records of corporate proceedings in connection therewith in form and substance
satisfactory to the Company and its counsel.
7.4 EXECUTION AND DELIVERY OF STOCK REPURCHASE AGREEMENT
Xxxxx X. Xxxxxx shall have executed and delivered to the Company the
Stock Repurchase Agreement.
SECTION 8. INTERPRETATION OF THIS AGREEMENT
8.1 TERMS DEFINED
As used in this Agreement, the following terms have the respective
meanings set forth below or set forth in the Section hereof following such term:
EXCHANGE ACT: shall mean the Securities Exchange Act of 1934, as
amended.
STOCK REPURCHASE AGREEMENT: shall mean the agreement to be dated the
Closing Date between Xxxxx X. Xxxxxx and the Company.
PERSON: shall mean an individual, partnership, corporation, trust or
unincorporated organization, and a government or agency or political subdivision
thereof.
1933 ACT: shall mean the Securities Act of 1933, as amended.
8.2 ACCOUNTING PRINCIPLES
Where the character or amount of any asset or amount of any asset or
liability or item of income or expense is required to be determined or any
consolidation or other accounting computation is required to be made for the
purposes of this Agreement, this shall be done in accordance with GAAP at the
time in effect, to the extent applicable, except where such principles are
inconsistent with the requirements of this Agreement.
Warburg, Xxxxxx Investors, L.P.
June 20, 1994
Page -12-
8.3 DIRECTLY OR INDIRECTLY
Where any provision in this Agreement refers to action to be taken
by any Person, or which such Person is prohibited from taking, such provision
shall be applicable whether such action is taken directly or indirectly by such
Person.
8.4 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Georgia without giving effect to the choice-of-law
provisions thereof.
8.5 PARAGRAPH AND SECTION HEADINGS
The headings of the sections and subsections of this Agreement are
inserted for convenience only and shall not be deemed to constitute a part
thereof.
SECTION 9. MISCELLANEOUS
9.1 NOTICES
All notices and other communications given or made pursuant hereto
shall be in writing and shall be deemed to have been given or made if in writing
and shall be deemed to have been given or made if in writing and delivered
personally, sent by courier or sent by registered or certified mail (postage
prepaid, return receipt requested) to the parties at the following addresses:
(a) If to the Purchaser, to:
Warburg, Xxxxxx Investors, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
___________________________
___________________________
___________________________
Attention: _______________
Warburg, Xxxxxx Investors, L.P.
June 20, 1994
Page -13-
(b) If to the Company, to:
The System Works, Inc.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
with a copy to:
Xxxxxxxx Xxxxxxx
Suite 5200
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esquire
or to such other persons or at such other addresses as shall be furnished by
either party by like notice to the other, and such notice or communication shall
be deemed to have been given or made as of the date so delivered or mailed. No
change in any of such addresses shall be effective insofar as notices under this
Section 9 are concerned unless such changed address is located in the United
States of America and notice of such change shall have been given to such other
party hereto as provided in this Section 9.
9.2 REPRODUCTION OF DOCUMENTS
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by the Purchaser on the Closing Date, and
(c) financial statements, certificates and other information previously or
hereafter furnished to the Purchaser, may be reproduced by the Purchaser by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process and the Purchaser may destroy any original document so
reproduced. All parties hereto agree and stipulate that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by the Purchasers in the regular
course of business) and that any enlargement, facsimile or further reproduction
of such reproduction shall likewise be admissible in evidence.
Warburg, Xxxxxx Investors, L.P.
June 20, 1994
Page -14-
9.3 TERMINATION AND SURVIVAL
Unless the Closing Date has occurred prior thereto, this Agreement
and, except as herein provided, all the rights of the parties hereto, shall
terminate on July 31, 1994 (unless such date is extended by mutual written
consent). All warranties, representations, and covenants made by the Purchaser
and the Company herein or in any certificate or other instrument delivered by
the Purchaser or the Company under this Agreement shall be considered to have
been relied upon by the Company or the Purchaser, as the case may be, and shall
survive all deliveries to the Purchaser of the Series A Preferred Stock and
Series B Preferred Stock, or payment to the Company for such Series A Preferred
Stock and Series B Preferred Stock, regardless of any investigation made by the
Company or the Purchaser, as the case may be, or on the Company's or the
Purchaser's behalf. All statements in any such certificate or other instrument
shall constitute warranties and representation by the Company or the Purchaser
hereunder.
9.4 SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of and be binding upon the
successor and permitted assigns of each of the parties. Neither this Agreement
nor the rights of the parties hereunder may be assigned without the written
consent of the Company and the Purchaser.
9.5 ENTIRE AGREEMENT; AMENDMENT AND WAIVER
This Agreement and the attached Exhibits and Schedules constitute
the entire understandings of the parties hereto and supersede all prior
agreements or understandings with respect to the subject matter hereof between
such parties. This Agreement may be amended, and the observance of any term of
this Agreement may be waived, with (and only with) the written consent of the
Company and the Purchaser.
9.6 SEVERABILITY
This Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforceability of this Agreement or of any other term or provision hereof.
Furthermore, in lieu of any such invalid or unenforceable term or provision, the
parties hereto intend that there shall be added as a part of this Agreement a
provision as similar in terms to such invalid or unenforceable provision as may
be possible and be valid and enforceable.
Warburg, Xxxxxx Investors, L.P.
June 20, 1994
Page -15-
9.7 LIMITATION ON ENFORCEMENT OF REMEDIES
The Company hereby agrees that it will not assert against the
limited partners of the Purchaser any claim it may have under this Agreement by
reason of any failure or alleged failure by the Purchaser to meet its
obligations hereunder. The foregoing shall not limit the Company's rights
against the general partner of the Purchaser.
9.8 COUNTERPARTS
This Agreement may be executed in one or more counterparts with the
same effect as if the parties executing the counterparts had each executed one
instrument as of the day and year first above written.
Very truly yours,
THE SYSTEM WORKS, INC.
By: /s/ Xxxx X. Blend, III
--------------------------------
WARBURG, XXXXXX INVESTORS, L.P.
By: WARBURG, XXXXXX & CO.,
General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Xxxxxx X. Xxxxx, Partner
