Exhibit 4.6
NEWCO GROUP, INC.
NOMINATION AGREEMENT
THIS NOMINATION AGREEMENT is entered into as of [______] 1997, by and
between Newco Group, Inc., a Delaware corporation (the "COMPANY"), and Xxxxxx X.
Xxxxxx ("XXXXXX") and Warburg, Xxxxxx Investors, L.P. ("WARBURG").
RECITALS
WHEREAS, each of Xxxxxx and Warburg acquired shares of Common Stock of the
Company pursuant to an Agreement and Plan of Merger and Reorganization by and
among the Company, THE INDUS GROUP, Inc., a California corporation ("INDUS"),
and TSW International, Inc. ("TSW"), dated June 5, 1997 (the "MERGER AGREEMENT")
in connection with the merger of the Company's two subsidiaries with and into
INDUS and TSW, respectively. Pursuant to Section 5.18 of the Merger Agreement,
the Company agreed to provide each of Xxxxxx and Warburg certain director
nomination rights as provided herein.
WHEREAS, as an inducement for each of INDUS and TSW to enter into the
Merger Agreement, the Company desires to grant the director nomination rights to
each of Xxxxxx and Warburg as contained herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the Company, Xxxxxx and Warburg agree as follows:
SECTION 1
DIRECTOR NOMINATION RIGHTS
1.1 DEFINITION.
For purposes of this Agreement, a party shall be deemed to own as
"Common Stock of the Company on a fully diluted basis" all shares of Common
Stock of the Company subject to all warrants, options and purchase rights owned
by such party.
1.2 WARBURG NOMINATION RIGHTS.
(a) TWO DESIGNEES. For so long as Warburg continues to own more than
15% of the outstanding Common Stock of the Company on a fully diluted basis, the
Company shall nominate, in connection with each stockholder solicitation
relating to the election of directors, two candidates designated by Warburg.
(b) ONE DESIGNEE. For so long as Warburg continues to own equal to or
less than 15% and more than 7% of the outstanding Common Stock of the Company on
a fully diluted basis, the
Company shall nominate, in connection with each stockholder solicitation
relating to the election of directors, one candidate designated by Warburg.
1.3 XXXXXX NOMINATION RIGHTS.
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(a) TWO DESIGNEES. For so long as Xxxxxx continues to own more than
15% of the outstanding Common Stock of the Company on a fully diluted basis, the
Company shall nominate, in connection with each stockholder solicitation
relating to the election of directors, two candidates designated by Xxxxxx, one
of which may be Xxxxxx.
(b) ONE DESIGNEE. In so long as Xxxxxx continues to own equal to or
less than 15% and more than 7% of the outstanding Common Stock of the Company on
a fully diluted basis, the Company shall nominate, in connection with each
stockholder solicitation relating to the election of directors, one candidate
designated by Xxxxxx, which may be Xxxxxx.
1.4 AFFILIATES. For purposes of this Agreement, all shares held by an
affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933,
as amended) of Warburg and Xxxxxx, will be deemed to be owned by Warburg and
Xxxxxx, respectively.
1.5 VOTING OF MANAGEMENT SHARES. The Company shall use its best efforts
(i) to cause to be voted the shares for which the Company's management or Board
of Directors holds proxies or is otherwise entitled to vote in favor of the
election of such designee(s) nominated pursuant to this Agreement (the "WARBURG
DESIGNEE(S)" and the "XXXXXX DESIGNEE(S)"); and (ii) to cause the Board of
Directors of the Company to unanimously recommend to its stockholders to vote in
favor of the Warburg Designee(s) and the Xxxxxx Designee(s).
1.6 VACANCIES. In the event that any Warburg Designee shall cease to
serve as a director of the Company for any reason, the vacancy resulting
therefrom shall be filled by another Designee selected by Warburg. In the
event any Xxxxxx Designee shall cease to serve as a director of the Company for
any reason, the resulting vacancy therefrom shall be filled by another Designee
selected by Xxxxxx. Any such successor designee who becomes a director of the
Company by virtue of this Agreement shall serve until the next succeeding annual
meeting at the Company's stockholders and until his or her successor is duly
elected and qualified.
1.7 EQUAL TREATMENT. The Company shall provide the same compensation and
rights and benefits of indemnity to the Warburg Designee(s) and the Xxxxxx
Designee(s) as are provided to other non-employee directors, provided that if
Xxxxxx is one of the Xxxxxx Designees, for so long as he continues to be
employed by the Company, he shall receive no additional compensation in respect
of his service as a director.
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SECTION 2.
MISCELLANEOUS
2.1 TERMINATION. This Agreement shall terminate and have no further force
or effect at such time as neither Warburg, nor Xxxxxx hold more than 5% of the
outstanding Common Stock of the Company.
2.2 WAIVERS AND AMENDMENTS. The rights and obligations of the Company and
the rights of Warburg and Xxxxxx under this Agreement may be waived (either
generally or in a particular instance, either retroactively or prospectively,
and either for a specified period of time or indefinitely) or amended, only with
the written consent of the party whose rights are being waived.
2.3 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Delaware.
2.4 SPECIFIC ENFORCEMENT. It is agreed and understood that monetary
damages would not adequately compensate Warburg and Xxxxxx for the breach of
this Agreement by the Company, that this Agreement shall be specifically
enforceable, and that any breach or threatened breach of this Agreement shall be
the proper subject of a temporary or permanent injunction or restraining order.
Further, the Company waives any claim or defense that there is an adequate
remedy at law for such breach or threatened breach.
2.5 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
2.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
constitute one instrument.
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The foregoing Nomination Agreement is hereby executed as of the date first
above written.
"COMPANY"
NEWCO GROUP, INC.
A DELAWARE CORPORATION
______________________________________
Signature of Authorized Signatory
______________________________________
Print Name and Title
"WARBURG"
WARBURG, XXXXXX INVESTORS, L.P.
By: Warburg, Xxxxxx & Co.
General Partner
By:___________________________________
Partner
"XXXXXX"
______________________________________
Xxxxxx X. Xxxxxx
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