Exhibit 10.37
AMENDMENT AGREEMENT
AMENDMENT AGREEMENT (this "Amendment"), dated as of December 23, 1996,
among MARCAM CORPORATION (together with its successors and assigns, the
"Company"), and each of the holders of any one or more of the Notes and the
Warrants whose name appears on the signature pages hereof (individually, a
"Holder" and, collectively, the "Holders").
RECITALS:
WHEREAS, the Company has entered into those certain several Note and
Warrant Purchase Agreements (as amended and in effect immediately prior to the
date hereof, collectively, the "Existing Note Agreement," and, as amended by
this Amendment, the "Amended Note Agreement"), each dated as of May 12, 1994,
with each of the purchasers identified on Annex 1 thereto (the "Purchasers");
WHEREAS, the Company has entered into those certain several Warrant
Agreements (as amended and in effect immediately prior to the date hereof,
collectively, the "Existing Warrant Agreement," and, as amended by this
Agreement, the "Amended Warrant Agreement"), each dated May 12, 1994;
WHEREAS, the Company, pursuant to the Existing Note Agreement and the
Existing Warrant Agreement, issued the Notes and the Warrants to the Holders;
WHEREAS, each of the Holders is a holder of any one or more of the Notes,
the Warrants or both set forth on Annex 1 hereto;
WHEREAS, the Company has entered into that certain Rights Agreement (the
"Rights Agreement"), dated as of December 3, 1996, with The First National Bank
of Boston;
WHEREAS, the Company has requested the Holders to amend certain provisions
of the Existing Note Agreement, and the Holders have requested the Company to
amend certain provisions of the Existing Warrant Agreement, as hereinafter
provided; and
WHEREAS, the Holders and the Company are agreeable to such modifications
and such amendments, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. DEFINITIONS
Capitalized terms used in this Amendment and not otherwise defined herein
shall have the respective meanings ascribed to them in the Amended Note
Agreement.
2. EXISTING NOTE AGREEMENT AMENDMENTS
Subject to the satisfaction of the conditions set forth in Section 4
hereof, the Holders hereby consent and agree, and the Company agrees, to each of
the amendments to the Existing Note Agreement set forth below in this Section 2,
as follows:
2.1 Amendment to Section 6.8. Section 6.8 of the Existing Note Agreement
is hereby amended by adding the following paragraph to the end of such Section:
"Notwithstanding anything to the contrary contained in this Section
6.8, the Company may at any time redeem the Shareholder Rights in
accordance with the redemption provisions of the Rights Agreement so long
as the Redemption Price (as defined in the Rights Agreement) per
Shareholder Right is not higher than such Redemption Price in effect on the
date hereof (other than changes made to appropriately, and in accordance
with the provisions of the Rights Agreement, adjust to reflect any stock
split, stock dividend or similar transaction occurring after the date
hereof)."
2.2 Amendment to Section 6.10. Section 6.10 of the Existing Note
Agreement is hereby amended and restated in its entirety to read as follows:
"6.10 Maintenance of Consolidated Net Worth.
(a) The Company will not permit, at the end of any fiscal quarter
ending after March 31, 1996 to and including the fiscal quarter ending
June 30, 1997, Consolidated Net Worth to be less than the sum of:
(i) One Million Dollars ($1,000,000); plus
(ii) on a cumulative basis, fifty percent (50%) of the
Company's Consolidated Net Income, if positive, for each full
fiscal quarter ended after March 31, 1996.
(b) The Company will not permit, at the end of the fiscal quarter
ending September 30, 1997 and at the end of any fiscal quarter
thereafter, Consolidated Net Worth to be less than the sum of:
(i) Six Million Dollars ($6,000,000); plus
(ii) on a cumulative basis, fifty percent (50%) of the
Company's Consolidated Net Income, if positive, for each full
fiscal quarter ended after September 30, 1997."
2.3 Amendment to Section 6.11. The parties hereto agree that as of
September 28, 1996, Section 6.11 of the Existing Note Agreement is hereby
amended and restated in its entirety to read as follows:
"6.11 Ratio of Consolidated Operating Income to Consolidated Interest
Expense.
"The Company will not permit the ratio of Consolidated Operating
Income to Consolidated Interest Expense to be less than 2.0:1.0 for any of
the following periods:
"(a) the full fiscal quarter of the Company ended on June 30,
1997;
"(b) the full fiscal quarter of the Company ending September 30,
1997; or
"(c) any period of four (4) full consecutive fiscal quarters
ending on or after December 31, 1997."
2.4 Amendment to Section 10.1. The following definitions are hereby added
to Section 10.1 of the Existing Note Agreement in such a manner so as to
preserve the alphabetical listing of all definitions set forth in said Section:
"Consolidated Operating Income -- means, for any period, the sum of:
"(a) Consolidated Net Income for such period; plus
"(b) the aggregate of all amounts (in each case, to the extent,
but only to the extent, such amount was reflected in the computation
of Consolidated Net Income for such period) of:
"(i) Consolidated Interest Expense; and
"(ii) income tax expense, determined on a consolidated
basis for the Company and the Subsidiaries."
"Rights Agreement -- means that certain Rights Agreement, dated as of
December 3, 1996, between the Company and The First National Bank of
Boston, as such Rights Agreement may be amended from time to time."
"Shareholder Rights means the "Rights," as such term is defined in the
Rights Agreement."
3. EXISTING WARRANT AGREEMENT AMENDMENTS
Subject to the satisfaction of the conditions set forth in Section 4
hereof, the Holders hereby consent and agree, and the Company hereby agrees, to
each of the amendments to the Existing Warrant Agreement set forth below in this
Section 3, as follows:
3.1 Amendment to Section 2.2 of the Existing Warrant Agreement.
Section 2.2 of the Existing Warrant Agreement is hereby amended by adding
the following sentence to the end of such Section:
"In addition, if, at any time prior to the redemption or expiration of
the Shareholder Rights in accordance with the Rights Agreement, any holder
of a Warrant Certificate shall exercise the Warrants (or any portion
thereof) evidenced thereby prior to the Distribution Date, each share of
Common Stock being issued upon such exercise shall include the Shareholder
Rights attached thereto in accordance with the Rights Agreement. If, at
any time prior to the redemption or expiration of the Shareholder Rights in
accordance with the Rights Agreement, any holder of a Warrant Certificate
shall exercise the Warrants (or any portion thereof) evidenced thereby
after the Distribution Date, then, in addition to the Common Stock being
issued upon the exercise of such Warrants, such holder of a Warrant
Certificate shall be entitled to receive, and the Company shall deliver to
such holder, Rights Certificates representing the number of Shareholder
Rights in respect of such shares of Common Stock as is provided for in
Section 22(a) of the Rights Agreement, without giving effect to any of
clauses (i) or (ii) of the proviso thereto."
3.2 Amendment to Section 4.1(d) of the Existing Warrant Agreement.
Section 4.1(d) of the Existing Warrant Agreement is hereby amended and
restated in its entirety to read as follows:
"(d) Consolidation; Merger; Sale of the Company. In the event
that there shall be:
(i) any consolidation of the Company with, or merger of
the Company with or into, another corporation (other than a
merger in which the Company is the surviving corporation and that
does not result in any reclassification or change of shares of
Common Stock outstanding immediately prior to such merger);
(ii) any sale or conveyance to another corporation of the
Property of the Company substantially as an entirety; or
(iii) any reclassification of the Common Stock or the
Shareholder Rights (other than a reclassification for which the
Rights Agreement provides an appropriate adjustment) that results
in the issuance of other Securities of the Company;
then lawful provision shall be made as a part of the terms of such
transaction so that the holders of Warrants shall thereafter have the
right to purchase the number and kind of shares of stock, other
Securities, cash, Property and rights receivable upon such
consolidation, merger, sale, conveyance or reclassification by a
holder of such number of shares of Common Stock and such number of
Shareholder Rights, as the case may be, as the holder of a Warrant
would have had the right to acquire upon the exercise of such Warrant
immediately prior to such consolidation, merger, sale or conveyance,
at the Purchase Price then in
effect."
3.3 Amendment to Section 4.6 of the Existing Warrant Agreement.
Section 4.6 of the Existing Warrant Agreement is hereby amended by adding
the following subclause (c) to the end of such Section:
"(c) The Company shall not enter into any amendment of the
Rights Agreement which would either:
(i) have the effect of treating the holders of the Warrants
(assuming they exercised such Warrants immediately following the
occurrence of such amendment) in a manner that is different from
the manner in which such holders would have been treated had they
exercised the Warrants immediately prior to the occurrence of
such amendment; or
(ii) deny the holders of the Warrants the benefits of
section 22(a) of the Rights Agreement, without giving effect to
any of clauses (i) or (ii) of the proviso thereto."
3.4 Addition of Section 4.7 to the Existing Warrant Agreement.
The Existing Warrant Agreement is hereby amended by adding the following
new Section 4.7 immediately following the new Section 4.6(c):
"4.7 Right to Receive Consideration Upon Distributions to Holders of
Shareholder Rights.
(a) Right to Payment in Respect of Distributions. In the event
that the Company shall distribute to all holders of its Shareholder
Rights (including, without limitation, any such distribution made in
connection with a consolidation or merger in which the Company is the
continuing corporation) any Property whatsoever (including, without
limitation, cash, assets, Securities or other rights, warrants or
options), other than a redemption of the Rights in accordance with the
Rights Agreement, then the Company shall pay or deliver to each Person
who was a registered holder of Warrants on the record date for the
payment of such dividend on the Shareholder Rights, an amount equal to
the product of:
(i) the aggregate number of Shareholder Rights which such
holder would have received if such holder had exercised,
immediately prior to the occurrence of such distribution, all
Warrants then held by such holder; times
(ii) the amount per Shareholder Right of the Property so
distributed.
(b) Notice of Distribution in Respect of Shareholder Rights. In
the event of distribution described in Section 4.7(a), the Company
shall give written notice of such declaration to each holder of
Warrants within five (5) Business Days after the declaration thereof,
or the decision to make such distribution, which notice shall state:
(i) that the Company has declared or determined to make a
distribution in respect of its Shareholder Rights;
(ii) the Property per share of such distribution and a
description of the Property to be so distributed if the Property
is other than cash;
(iii) the record date, if any, for the determination of the
registered holders of Shareholder Rights for the purpose of
payment of such distribution;
(iv) a description of the right described in Section
4.7(a); and
(v) the number of Shareholder Rights which such holder
would have received if such holder had exercised, immediately
prior to the occurrence of such distribution, all Warrants then
held by such holder."
3.5 Addition of Section 5.12 to the Existing Warrant Agreement.
The Existing Warrant Agreement is hereby amended by adding the following
new Section 5.12 immediately following the end of the existing Section 5.11:
"5.12 Registration Rights in Respect of Shareholder Rights Upon Sale
of Common Stock. In the event that, in connection with any sale by any
holder of shares of Common Stock which are or were Registrable Securities
at any time prior to the earliest to occur of the redemption or expiration
of the Shareholder Rights in accordance with the Rights Agreement or the
Distribution Date, registration of the Shareholder Rights under Section 5
of the Securities Act is required, then the Company, as promptly as
practicable, shall file with the SEC and shall use its reasonable best
efforts to cause to become effective a registration statement (which, at
the request of the Requisite Holders, shall be a shelf registration
statement under Rule 415 under the Securities Act) in respect of
such Shareholder Rights, and shall use its best efforts to keep such
registration statement effective during the remainder of the Effective
Period. In connection with any such registration, the provisions of
Section 5.3 through Section 5.11, inclusive, of this Agreement shall apply,
mutatis mutandis.
In the event that, in connection with any sale by any holder of shares
of Registrable Securities pursuant to Section 5.2 hereof at any time prior
to the earliest to occur of the redemption or expiration of the Shareholder
Rights in accordance with the Rights Agreement or the Distribution Date,
registration of the Shareholder Rights under Section 5 of the Securities
Act is required, then the Company shall register and include in such sale,
in addition to all the Registrable Securities required to be registered
under Section 5.2, all Shareholder Rights attached to all such Registrable
Securities."
3.6 Amendment to Definition of "Market Price" in the Existing Warrant
Agreement.
The definition of "Market Price" contained in Section 6 of the Existing
Warrant Agreement is hereby amended by adding the following sentence to the end
of such definition.
"In computing the Market Price at any time prior to the earliest to occur
of the redemption or expiration of the Shareholder Rights in accordance
with the Rights Agreement or the Distribution Date, the value of the
Shareholder Rights for purposes of the calculation of the Market Price
shall be deemed to be zero (0)."
3.7 Additions to Section 6 of the Existing Warrant Agreement. The
following definitions are hereby added to Section 10.1 of the Existing Note
Agreement in such a manner so as to preserve the alphabetical listing of all
definitions set forth in said Section:
"Distribution Date -- shall have the meaning specified in the Rights
Agreement."
"Rights Agreement -- means that certain Rights Agreement, dated as of
December 3, 1996, between the Company and The First National Bank of
Boston, as amended or modified from time to time."
"Rights Certificate -- shall have the meaning specified in the Rights
Agreement."
"Shareholder Rights means the "Rights," as such term is defined in the
Rights Agreement."
4. CONDITIONS TO EFFECTIVENESS.
The amendments set forth in Section 2 and Section 3 shall become effective
only upon the satisfaction in all respects of the conditions set forth below.
The first date upon which all such conditions shall have been satisfied is
herein referred to as the "Effective Date."
4.1 Execution and Delivery of this Amendment. Each of the Holders and the
Company shall have executed and delivered to each other this Amendment, and each
of the Amended Note Agreement, the Amended Warrant Agreement, the Notes and the
Warrant Certificates shall be in full force and effect.
4.2 Representations and Warranties True. The representations and
warranties set forth in paragraph 5 hereof shall be true and correct as of the
date hereof and as of the Effective Date; and no Default or Event of Default
pursuant to the Existing Note Agreement shall be continuing on the Effective
Date.
5. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to each of the Holders as follows:
5.1 Organization, Existence, Etc. The Company:
(a) is a corporation duly organized and validly in good standing under
the laws of its state of incorporation;
(b) has all requisite power and authority and all necessary licenses
and permits to own and operate its Properties and to carry on its business
as now conducted and presently proposed to be conducted; and
(c) is duly qualified and is authorized to do business and is in good
standing as a foreign corporation in each jurisdiction where the character
of its Properties or the nature of its activities makes such qualification
necessary.
5.2 Power and Authority. The Company has the corporate power and
authority:
(a) to authorize, execute, deliver and enter into this Amendment; and
(b) to perform its obligations under this Amendment, the Amended Note
Agreement, the Notes, the Amended Warrant Agreement and the Warrant
Certificates.
5.3 Enforceability. This Amendment has been duly authorized, executed and
delivered by the Company. The Amended Note Agreement, the Notes, the Amended
Warrant Agreement and the Warrant Certificates constitute the legal, valid and
binding obligations of the Company, enforceable in accordance with their
respective terms, except as such enforceability may be:
(a) limited by bankruptcy, insolvency or other similar laws affecting
the enforceability of creditors' rights generally; and
(b) subject to the availability of equitable remedies.
The holders of the Notes and the Warrants are entitled to the benefits of the
Amended Note Agreement and the Amended Warrant Agreement, respectively.
5.4 No Conflicts. The authorization, execution and delivery by the
Company of this Amendment are not, and the performance by the Company of its
obligations under the Amended Note Agreement, the Notes, the Amended Warrant
Agreement and the Warrant Certificates will not be, inconsistent with its
certificate of incorporation or by-laws, do not and will not contravene any law,
governmental rule or regulation, violate any judgment, order or award of any
arbitrator applicable to the Company, do not and will not contravene any
provision of, or constitute a default under, any indenture, mortgage, contract
or other instrument to which the Company is a party or by which any of its
Property is bound, and will not result in the imposition of a Lien upon any
Property of the Company.
5.5 Defaults. After giving retroactive effect to the amendments
contemplated by Section 2.2 and Section 2.3 hereof, no event has occurred and no
condition exists which would constitute a Default or an Event of Default under
the Existing Note Agreement or the Amended Note Agreement.
6. COSTS AND EXPENSES.
The Company shall pay all amounts which are payable pursuant to Section
11.5(d) of the Amended Note Agreement and Section 8.1 of the Amended Warrant
Agreement, and shall pay all out-of-pocket expenses of the Holders in connection
with the negotiation, preparation, execution and delivery of this Amendment,
including, without limitation, within five (5) Business Days after being
presented with an invoice therefor, all the fees and expenses of special counsel
engaged by the Holders in connection therewith.
7. MISCELLANEOUS.
7.1 Successors and Assigns. All the provisions of this Amendment by or
for the benefit of the parties hereto shall bind and inure to the benefit of
their respective successors and assigns hereunder.
7.2 Execution in Counterparts. This Amendment may be executed in one or
more counterparts, all of which taken together shall constitute a single
instrument.
7.3 Governing Law. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
7.4 No Other Amendments. Except as expressly provided herein:
(a) no other terms and provisions of the Existing Note Agreement or
the Existing Warrant Agreement shall be modified or changed by this
Amendment; and
(b) the terms and provisions of the Amended Note Agreement and the
Amended Warrant Agreement shall continue in full force and effect. The
Company hereby acknowledges and reaffirms all of its obligations and duties
under the Amended Note Agreement, the Notes, the Amended Warrant Agreement
and the Warrant Certificates.
7.5 Severability. Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized officers as of the day and year first
above written.
MARCAM CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chief Financial Officer
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY
By: /s/ Xxxx X. Xxxxxxxxx
------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
XXXXXXX & CO.
By: /s/ Xxxxxxx XxXxxxxxx
------------------------
Name: Xxxxxxx XxXxxxxxx
Title: Assistant Treasurer
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
By: /s/ Xxxx Xxxxxxx
----------------------
Name: Xxxx Xxxxxxx
Title: Senior Investment Officer
XXXX XXXXXXX LIFE INSURANCE COMPANY OF
AMERICA
By: /s/ Xxxxxxx X. Xxxxx
----------------------
Name: Willliam X. Xxxxx
Title: Vice President
ANNEX 1
HOLDERS OF NOTES AND WARRANTS
Note Registration Number Warrant Certificate and
Name of Holder and Principal Amount Number of Warrants
=============================================================================
The Northwestern Mutual R-1, $15,000,000 WR-1, 230,000 Warrants
Life Insurance Company
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Xxxx Xxxxxxx Mutual Life WR-2, 91,999 Warrants
Insurance Company WR-3, 30,667 Warrants
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Xxxx Xxxxxxx Life R-4, $2,000,000 WR-4, 30,667 Warrants
Insurance Company of
America
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Xxxxxxx & Co. R-5, $8,000,000
=============================================================================
