EXHIBIT 10.4.1
TSW International, Inc.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
NOTE AND WARRANT PURCHASE AGREEMENT
Dated as of May 5, 1995
To: Warburg, Xxxxxx Investors, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
TSW International, Inc., a Georgia corporation (the
"Company"), hereby agrees with Warburg, Xxxxxx Investors L.P. a
Delaware limited partnership (the "Purchaser") as follows:
SECTION 1. PURCHASE AND SALE OF NOTE 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, a subordinated floating rate note having the
terms and conditions set forth on Exhibit "A" attached hereto
(the "Note") due May 5, 2000 in the principal amount of up to
$1,500,000, for an aggregate purchase price of up to $1,500,000
subject to the terms and conditions of the Note.
(b) Simultaneously with the execution of the Note, the
Company will issue to the Purchaser a stock purchase warrant (the
"Warrant"), in the form attached hereto as Exhibit "B" granting
Purchaser the right to purchase up to 130,662 shares of the
Common Stock of the Company at a price equal to $11.48 per share
subject to the terms and conditions of the Warrant.
(c) The transactions described in subsections (a) and (b)
above are cross-conditioned so that they shall only occur on the
Closing Date if all of such transactions occur on the Closing
Date.
(d) The closing of such sales and purchases shall take
place on May 5, 1995 (the "Closing Date").
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser that:
2.1 CORPORATE ORGANIZATION
The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Georgia.
Warburg, Xxxxxx Investors, L.P.
February 14, 1995
Page 2
2.2 CAPITALIZATION
(a) On the date hereof, the authorized capital stock
of the Company consists 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, the issued and
outstanding shares of capital stock of the Company shall consist
of 189,855 shares of Common Stock, 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.
(c) Except for the conversion and redemption rights in
respect of the Series A Preferred Stock and the Series B
Preferred Stock, and except for the stock options and warrants
listed on Schedule 2.2 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 2.2, no shareholder of the Company is
entitled to any preemptive rights, rights of first refusal,
redemption rights or similar rights.
2.3 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 issuance and sale of the Note and the
Warrant in accordance with this Agreement, and the Company has
reserved for issuance shares of Common Stock sufficient to
satisfy its obligations under the Warrant. No other corporate
action is necessary to authorize the performance by the Company
of its obligations hereunder.
(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.
2.4 CONSENTS AND APPROVALS
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 other than certain
consents of NationsBank of Georgia N.A. and NationsBank Leasing
Corporation that are being obtained in connection with the
transaction.
2.5 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,
Warburg, Xxxxxx Investors, L.P.
February 14, 1995
Page 3
board, bureau, agency or instrumentality, which questions the validity
of this Agreement, or any action taken or to be taken pursuant
hereto or thereto, or which is reasonably likely to result in a
material adverse effect on the Company's business, assets,
properties, liabilities or condition (financial or otherwise) of the
Company ("Material Adverse Effect"), and the Company is not in
default with respect to any judgment, order, 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 3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Company as
follows:
(a) The Purchaser is acquiring the Note and Warrant 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 Note or Warrant 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 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
Warburg, Xxxxxx Investors, L.P.
February 14, 1995
Page 4
or state regulatory board or body or administrative agency having
jurisdiction over the Purchaser or over its properties or
business.
(h) Purchaser holder of warrants to acquire up to 970,726
shares (the "Warrant Shares") of Common Stock of the Company
pursuant to those certain Stock Purchase Warrants dated June 20,
1994, November 10, 1994, January 4, 1995 and February 14, 1995,
respectively (the "Existing Stock Purchase Warrants"), and is the
holder of 1,897,028 shares of Series A Preferred Stock and 303,965
shares of Series B Preferred Stock ("Preferred Shares"). Purchaser
represents, warrants, acknowledges and agrees that, prior to and as
of the Closing Date, there has been no adjustment to: (i) the
number of Warrant Shares; (ii) the number of Preferred Shares;
(iii) the "Conversion Rate" (as defined in the Company's Articles
of Incorporation) or other change affecting the number of shares of
Common Stock issuable upon conversion of the Preferred Shares; or
(iv) any exercise or conversion price payable upon exercise of the
Existing Stock Purchase Warrants or conversion of the Preferred
Shares. Purchaser further represents, warrants, acknowledges and
agrees that the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby (including,
without limitation, issuance of the Note and the Stock Purchase
Warrant to Purchaser) and the issuance of shares pursuant to the
Company's current and former stock option plans for employees and
outside directors, shall not result in, effect or otherwise require
an adjustment to any of the items listed in clauses (i) through
(iv) of the foregoing.
SECTION 4. ADDITIONAL COVENANTS OF THE PARTIES
4.1 RESALE OF SECURITIES
(a) The Purchaser covenants that it will not sell
or otherwise transfer the Note or the Warrant purchased hereunder
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 Note and Warrant 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 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."
4.2 FURTHER ASSURANCES
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 fulfillment of the conditions to
the Closing as promptly as practicable.
Warburg, Xxxxxx Investors, L.P.
February 14, 1995
Page 5
SECTION 5. INTERPRETATION OF THIS AGREEMENT
5.1 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 terms:
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.
5.2 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.
5.3 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.
5.4 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.
5.5 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 6. MISCELLANEOUS
6.1. 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
Attention: Xxxxxx X. Xxxxx
Warburg, Xxxxxx Investors, L.P.
February 14, 1995
Page 6
(b) If to the Company, to:
TSW International, Inc.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
with a copy to:
Xxxxxxxx Xxxxxxx
NationsBank Plaza
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
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 6 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
6.
6.2. 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 photographs, 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.
6.3 TERMINATION AND SURVIVAL
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. All statements
in any such certificate or other instrument shall constitute
warranties and representations by the Company or the Purchaser
hereunder.
6.4 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
Warburg, Xxxxxx Investors, L.P.
February 14, 1995
Page 7
rights of the parties hereunder may be assigned without the written consent of
the Company and the Purchaser.
6.5 ENTIRE AGREEMENT: AMENDMENT AND WAIVER
This Agreement and the attached Exhibits and Schedules constiitute 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.
6.6 SEVERABILITY
This Agreement shall be deemed severable and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforeability of this Agreement or of any other term or provision hereof.
Futhermore, 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.
6.7 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.
6.8 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,
TSW INTERNATIONAL, INC.
By: /s/ XXXXXXXXXXX X. XXXX
---------------------------
WARBURG, XXXXXX INVESTORS, L.P.
By: WARBURG, XXXXXX & CO.,
General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------
EXHIBIT "A"
-----------
SUBORDINATED FLOATING RATE NOTE
EXHIBIT "B"
-----------
STOCK PURCHASE WARRANT
SCHEDULE 2.2
------------
1. Stockholders Agreement dated June 20, 1994 among the Company,
Purchaser and Xxxx X. Blend.
2. 920,890 stock options issued to employees of the Company pursuant to
stock option plans.
3. 7,500 stock options issued to an outside director of the Company
pursuant to a stock option plan for outside directors of the Company.
4. Up to 970,726 warrants issued to Purchaser by the Company in connection
with three previous Subordinated Debentures issued by the Company on June 20,
1994, November 10, 1994, January 4, 1995 and February 14, 1995.
SCHEDULE TO EXHIBIT 10.4.1
SCHEDULE OF TERMS OF
NOTE AND WARRANT PURCHASE AGREEMENTS
BETWEEN TSW INTERNATIONAL, INC. AND WARBURG, XXXXXX INVESTORS, L.P.
DATE OF WARRANT WARRANT
AGREEMENT DEBT ISSUED NOTE DUE DATE SHARES EXERCISE PRICE
----------- ------------- -------------- --------- ---------------
11/10/94 $2,500,000 11/10/99 302,595 $7.93
1/4/95 3,500,000 1/4/00 423,633 7.93
2/14/95 1,100,000 2/24/00 133,142 7.93
5/5/95 1,500,000 5/5/00 130,662 11.48
6/27/95 400,000 6/27/00 34,843 11.48
10/13/95 2,500,000 10/13/00 217,770 11.48
