EXHIBIT 10.4.4
TSW INTERNATIONAL, INC.
0000 XXXXX XXXXX XXXXXXX
XXXXXXX, XXXXXXX 00000
December 16, 1996
Xxxxxxx, Xxxxxx Investors, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Amendment to the August 14, 1996 Preferred Stock Purchase Agreement
Dear Sirs:
TSW International, Inc., a Georgia corporation (the "Company"), and Warburg,
Xxxxxx Investors, L.P., a Delaware limited partnership (the "Purchaser"),
entered into a Preferred Stock Purchase Agreement on August 14, 1996 (the
"Purchase Agreement"). Notwithstanding Section 2 of the Purchase Agreement which
requires that the Company file certain amendments to the Company's Articles of
Incorporation with the Georgia Secretary of State on or before December 31,
1996, the Company and the Purchaser hereby agree to further extend the date of
such filing to March 31, 1997. This extension amends the Purchase Agreement. All
other terms and conditions of the Purchase Agreement remain in full force and
effect.
Very truly yours,
TSW INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxxx
----------------------------
Xxxx Xxxxxxx
XXXXXXX, XXXXXX INVESTORS, L.P.
By: XXXXXXX, XXXXXX & CO.,
General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------
TSW INTERNATIONAL, INC.
0000 XXXXX XXXXX XXXXXXX
XXXXXXX, XXXXXXX 00000
PREFERRED STOCK PURCHASE AGREEMENT
Dated April 14, 1996
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 SERIES D CUMULATIVE PREFERRED STOCK
Subject to the terms and conditions set forth in this Agreement, the
Company hereby sells to Purchaser, and Purchaser hereby purchases from the
Company, on a when issued basis, 216,685 shares of a new series of Preferred
Stock of the Company to be designated "Series D Cumulative Preferred Stock."
The Series D Cumulative Preferred Stock shall, from and after the date on
which it is authorized by the shareholders of the Company, have the rights,
preferences, privileges and restrictions as set forth in the Articles of
Amendment of the Company (the ""Amendment'') with respect to such Series D
Cumulative Preferred Stock. The Company acknowledges the receipt as of the
date hereof of the amount of Two Million Dollars ($2,000,000) paid by the
Purchaser for the Series D Cumulative Preferred Stock.
Section 2. AMENDMENT OF ARTICLES
On or before December 31, 1996, the Company will cause to be filed
with the Secretary of State of the State of Georgia the Amendment to provide
for the creation and authorization of the Series D Cumulative Preferred Stock
purchased hereby, it being recognized and acknowledged that such amendment
requires the prior approval of the Company's shareholders, but that in any
event the date of this instrument as indicated above shall be the effective
date of the sale and purchase of Series D Cumulative Preferred Stock effected
hereby.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Company as follows:
(a) The Purchaser is acquiring the Series D Cumulative 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 Series D Cumulative 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 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.
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 Series D Cumulative Preferred Stock 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 Series D Cumulative Preferred Stock 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.
Section 5. MISCELLANEOUS
5.1 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
(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 LLP
Suite 0000
000 Xxxxxxxxx Xxxxxx, X.X.
Atlanta, Georgia 30308-2216
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 5.1 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 5.1.
5.2 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.
5.3 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.
5.4 ENTIRE AGREEMENT; AMENDMENT AND WAIVER
This Agreement constitutes 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.
5.5 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/ Xxxx Xxxxxxx
----------------------------------
Xxxx Xxxxxxx
XXXXXXX, XXXXXX INVESTORS, L.P.
By: XXXXXXX, XXXXXX & CO.,
General Partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Partner
ARTICLES OF AMENDMENT
OF
TSW INTERNATIONAL, INC.
ARTICLE I.
The Articles of Amendment of TSW INTERNATIONAL, INC. are as follows:
ARTICLE II.
The name of the corporation is TSW INTERNATIONAL, INC. (the "Corporation")
and its charter number is 8603931.
ARTICLE III.
The Amended and Restated Articles of Incorporation of the Corporation are
hereby amended to create two new series of preferred stock of the
Corporation, one to be designated "Series C Cumulative Preferred Stock" and
the other to be designated "Series D Cumulative Preferred Stock." To effect
this change, Article IV of the Articles of Incorporation of the Corporation
is hereby deleted in its entirety and the following is substituted therefor:
"Article IV.
A. AUTHORIZED CAPITAL STOCK.
The Corporation shall be authorized to issue 6,000,000 shares of
$0.01 par value common stock (the "Common Stock").
The Corporation shall also be authorized to issue 3,390,993
shares of series preferred stock (the "Preferred Stock"), of which
1,897,028 shares shall be denominated "Series A Preferred Stock,"
393,965 shares shall be denominated "Series B Preferred Stock,"
500,000 shares shall be denominated "Series C Cumulative Preferred
Stock" and 600,000 shares shall be denominated "Series D Cumulative
Preferred Stock." Each share of Preferred Stock shall have a par
value of $0.01.
B. COMMON STOCK.
The rights of the Common Stock shall be as follows:
1. DIVIDENDS.
Subject to the preferences and other rights of the Preferred
Stock, the holders of Common Stock shall be entitled to receive
dividends as and when declared by the Board of Directors out of funds
legally available therefor. Holders of Common Stock shall be entitled
to share equally, share for share, in dividends declared on the
Common Stock.
2. LIQUIDATION.
In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, voluntary or involuntary, after payment or
provision for payment to the holders of the Preferred Stock of the
amounts to which they may be entitled, the remaining assets of the
Corporation available to stockholders shall be distributed equally per
share to the holders of Common Stock.
3. VOTING RIGHTS.
Except as otherwise provided herein or by law, each holder of
Common Stock shall be entitled to one vote in respect of each share of
Common Stock held of record on all matters submitted to a vote of
stockholders.
4. RECLASSIFICATIONS.
In the event of any stock split, combination or other
reclassification of shares of Common Stock, each share of Common Stock
shall be treated equally.
C. PREFERRED STOCK.
The relative rights, preferences, privileges and restrictions
granted to and imposed upon the Series A Preferred Stock, Series B
Preferred Stock, Series C Cumulative Preferred Stock and Series D
Cumulative Preferred Stock are as follows:
1. SERIES A AND SERIES B PREFERRED STOCK DIVIDENDS.
(a) The holders of Series A Preferred Stock shall be
entitled to receive noncumulative dividends at the rate of $0.315
per share per annum as and when declared by the Board of
Directors out of funds legally available therefor and the holders
of Series B Preferred Stock shall be entitled to receive
noncumulative dividends at the rate of $0.533 per share per annum
as and when declared by the Board of
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Directors out of funds legally available therefor. All such
dividends on the Series A Preferred Stock and Series B Preferred
Stock will be payable quarterly and before any dividends shall be
set apart for or paid in any year upon the Common Stock or any
Junior Stock (as hereinafter defined). If any such distribution
shall be insufficient to pay the holders of Series A Preferred
Stock or Series B Preferred Stock the full amount to which they
shall be entitled, the holders of the Series A Preferred Stock and
Series B Preferred Stock shall share ratably in any distribution
in proportion to the respective amounts which would otherwise be
payable in respect to the shares held by them upon such
distribution if all amounts payable on or with respect to said
shares were paid in full.
(b) Dividends on the Series A and Series B Preferred Stock
shall be noncumulative, whether or not in any fiscal year net
profits or surplus are available for the payment of dividends in
such fiscal year, so that if in any fiscal year or years,
dividends in whole or in part are not paid upon the Series A
Preferred Stock or Series B Preferred Stock, unpaid dividends
shall not accumulate as against the holders of the Series C
Cumulative Preferred Stock, the Series D Cumulative Preferred
Stock or the Junior Stock and no sums in any later years shall be
paid to the holders of the Series A Preferred Stock or the Series
B Preferred Stock with respect to any prior year or years when
dividends were not paid.
2. SERIES C AND SERIES D CUMULATIVE PREFERRED STOCK DIVIDENDS.
(a) The holders of Series C Cumulative Preferred Stock
shall be entitled to receive cumulative dividends at the rate of
$1.03 per share per annum as and when declared by the Board of
Directors out of funds legally available therefor. The holders of
Series D Cumulative Preferred Stock shall be entitled to receive
cumulative dividends at the rate of $0.83 per share per annum as
and when declared by the Board of Directors out of funds legally
available therefore. All such dividends on the Series C
Cumulative Preferred Stock and the Series D Cumulative Preferred
Stock will be payable quarterly and before any dividends shall be
set apart for or paid in any year upon (i) the Common Stock or
any other stock ranking on liquidation junior to the Preferred
Stock (such stock being referred to hereinafter collectively as
"Junior Stock"), (ii) the Series A Preferred Stock or (iii) the
Series B Preferred Stock. If any such distribution shall be
insufficient to pay the holders of Series C Cumulative Preferred
Stock or the Series D Cumulative Preferred Stock the full amount
to which they shall be entitled, the holders of the Series C
Cumulative Preferred Stock and the Series D Cumulative Preferred
Stock shall share ratably in any
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distribution in proportion to the respective amounts which would
otherwise be payable in respect to the shares held by them upon
such distribution if all amounts payable on or with respect to
said shares were paid in full.
(b) If any dividends payable on the Series C Cumulative
Preferred Stock and the Series D Cumulative Preferred Stock with
respect to any fiscal year of the Corporation are not paid for
any reason, the right of the holders of the Series C Cumulative
Preferred Stock and the Series D Cumulative Preferred Stock to
receive payment of such dividend shall not lapse or terminate,
but said unpaid dividend or dividends shall accumulate
and shall be paid without interest to the holders of the Series C
Cumulative Preferred Stock and the Series D Cumulative Preferred
Stock, when and as authorized by the Board of Directors of the
Corporation, before any sum or sums shall be set aside for or
applied to the purchase, redemption or other acquisition for
value of shares of any other class (including, without
limitation, Junior Stock, Series A Preferred Stock and Series B
Preferred Stock) and before any dividend shall be paid or
declared, or any other distribution shall be ordered or made,
upon shares of any other class (including, without limitation,
Junior Stock, Series A Preferred Stock and Series B Preferred
Stock).
3. RESTRICTION ON JUNIOR STOCK DIVIDENDS. As long as any
Preferred Stock remains outstanding, the Corporation shall not pay any
dividend on the Junior Stock, whether in cash or other property (other
than shares of Junior Stock), or purchase, redeem or otherwise acquire
any such Junior Stock unless, in addition to the payment of the
dividend to the holders of Preferred Stock as described above, the
Corporation has redeemed all shares of Preferred Stock which it would
theretofore have been required to redeem under Section IV.C.9 hereof.
4. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the
holders of the Preferred Stock then outstanding shall be entitled
to be paid out of the assets of the Corporation available for
distribution to its stockholders, after and subject to the
payment in full of all amounts required to be distributed to the
holders of any other preferred stock of the Corporation ranking
on liquidation prior and in preference to the Preferred Stock
(such preferred stock being referred to hereinafter as "Senior
Preferred Stock") upon such liquidation, dissolution or winding
up, but before any payment shall be made to the holders of Junior
Stock, an amount equal to $1.90 per share with respect to the
Series A
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Preferred Stock, $7.615 per share with respect to the Series B
Preferred Stock, $11.48 per share with respect to the Series C
Cumulative Preferred Stock and $9.23 per share with respect to
the Series D Cumulative Preferred Stock, PLUS any dividends
declared but unpaid thereon, and PLUS with respect to the Series
C Cumulative Preferred Stock and Series D Cumulative Preferred
Stock, any accumulated and unpaid dividends, if not yet declared
(subject, in each case, to adjustment in the event of any stock
dividend, stock split, stock distribution or combination with
respect to such shares). If upon any such liquidation,
dissolution or winding up of the Corporation the remaining assets
of the Corporation available for the distribution of its
stockholders after payment in full of amounts required to be paid
or distributed to holders of Senior Preferred Stock shall be
insufficient to pay the holders of Preferred Stock the full
amount to which they shall be entitled, the holders of the
Preferred Stock, and any class of stock ranking on liquidation on
a parity with the Preferred Stock, shall share ratably in any
distribution of the remaining assets and funds of the Corporation
in proportion to the respective amounts which would otherwise be
payable in respect to the shares held by them upon such
distribution if all amounts payable on or with respect to said
shares were paid in full.
(b) After the payment of all preferential amounts required
to be paid to the holders of Senior Preferred Stock and Preferred
Stock and any other series of preferred stock upon the
liquidation, dissolution or winding up of the Corporation, the
holders of shares of Common Stock then outstanding shall be
entitled to receive the remaining assets and funds of the
Corporation available for distribution to its stockholders.
(c) The merger or consolidation of the Corporation into or
with another corporation in which the holders of the
Corporation's outstanding shares before the consolidation or
merger do not retain a majority of the voting power of the
surviving corporation, or the sale, conveyance, mortgage, pledge
or lease of all or substantially all the assets of the
Corporation shall be deemed to be a liquidation, dissolution or
winding up of the Corporation for purposes of this Section
IV.C.4.
5. VOTING RIGHTS OF PREFERRED STOCK
(a) Each issued and outstanding share of Series A Preferred
Stock, Series B Preferred Stock, Series C Cumulative Preferred
Stock and Series D Cumulative Preferred Stock shall be entitled
to the number of votes equal to the number of share of Common
Stock into
5
which each such share of Series A Preferred Stock, Series B
Preferred Stock, Series C Cumulative Preferred Stock and Series D
Cumulative Preferred Stock is convertible (as adjusted from time
to time pursuant to Section IV.C.7 hereof), at each meeting of
stockholders of the Corporation with respect to any and all
matters presented to the stockholders of the Corporation for
their action or consideration, including the election of
directors. Except as provided by law, by the provisions of
Sections IV.C.5(b) and (c) below or by the provisions
establishing any other series of preferred stock, holders of
Preferred Stock and of any other outstanding preferred stock
shall vote together with the holders of Common Stock as a single
class.
(b) In addition to any other rights provided by law, the
Corporation shall not without first obtaining the affirmative
vote or written consent of the holders of a majority of the
outstanding shares of each of the Series A Preferred Stock,
Series B Preferred Stock, Series C Cumulative Preferred Stock and
Series D Cumulative Preferred Stock:
(i) amend or repeal any provision of the Corporation's
Articles of Incorporation or Bylaws, including without
limitation a change in the number of members of the Board of
Directors of the Corporation;
(ii) authorize or effect the payment of dividends or
the redemption or repurchase of any capital stock of the
Corporation or rights to acquire capital stock of the
Corporation except as otherwise required by the Articles of
Incorporation;
(iii) authorize or effect the issuance by the
Corporation of any shares of capital stock or rights to
acquire capital stock other than (A) pursuant to options,
warrants, conversion or subscription rights in existence on
the initial date of issuance of the Series A Preferred Stock
and the Series B Preferred Stock or (B) pursuant to stock
option, stock bonus or other employee stock plans for the
benefit of the employees of the Corporation or its
subsidiaries;
(iv) authorize or effect (A) any sale, lease, transfer
or other disposition of all or substantially all the assets
of the Corporation out of the ordinary course of the
Corporation's business; (B) any merger or consolidation or
other reorganization of the Corporation with or into another
corporation, (C) the acquisition by the Corporation of
another corporation by means of a purchase of all or
substantially all the
6
assets of such corporation, merger, consolidation or other
reorganization, (D) any joint ventures by the Corporation
outside of its ordinary course of business of (E) a
liquidation, winding up, dissolution or adoption of any plan
for the same;
(v) enter into any transaction, other than employment
agreements approved by the Board of Directors or
stockholders agreements to which the holders of the Series A
Preferred Stock, Series B Preferred Stock, Series C
Cumulative Preferred Stock and Series D Cumulative Preferred
Stock shall be parties, with any officer, director or
beneficial owner of five percent (5%) or more of the Common
Stock of the Corporation or any affiliate of any of the
foregoing; or
(vi) authorize the incurrence of indebtedness for
borrowed money in an amount in excess of $1,000,000.
(c) The Corporation shall not amend, alter or repeal the
preference, special rights or other powers of the Series A
Preferred Stock, Series B Preferred Stock, the Series C Cumulative
Preferred Stock and/or the Series D Cumulative Preferred Stock so
as to affect adversely the Series A Preferred Stock, Series B
Preferred Stock, Series C Cumulative Preferred Stock and/or the
Series D Cumulative Preferred Stock, without the written consent
or affirmative vote of the holders of at least 50% of the then
outstanding aggregate number of shares of such adversely affected
Preferred Stock given in writing or by vote at a meeting,
consenting or voting (as the case may be) separately as a class.
For this purpose, the authorization or issuance of any series of
Preferred Stock with preference or priority over, or being on a
parity with the Series A Preferred Stock, Series B Preferred
Stock, the Series C Cumulative Preferred Stock and/or the Series
D Cumulative Preferred Stock as to the voting rights or the right
to receive either dividends or amounts distributable upon
liquidation, dissolution or winding up of the Corporation shall
be deemed so to affect adversely the Series A Preferred Stock,
Series B Preferred Stock, the Series C Cumulative Preferred Stock
and/or the Series D Cumulative Preferred Stock, as applicable.
6. OPTIONAL CONVERSION.
(a) Each share of Series A Preferred Stock, Series B Preferred
Stock, Series C Cumulative Preferred Stock and/or the Series D
Cumulative Preferred Stock may be converted at any time, at the option
of the holder thereof, in the manner hereinafter provided, into one
fully paid and nonassessable share of Common Stock, subject, in each
case, to adjustments
7
described below; PROVIDED, HOWEVER that on any redemption of any
Preferred Stock or any liquidation of the Corporation, the right of
conversion shall terminate at the close of business on the full
business day next preceding the date fixed for such redemption or for
the payment of any amounts distributable on liquidation. (The number
of shares of Common Stock into which each share of Preferred Stock may
be converted is herein called the "Conversion Rate").
(b) Whenever the Conversion Rate shall be adjusted as provided
in Section IV.C.7 hereof, the Corporation shall forthwith file at each
office designated for the conversion, a statement, signed by the
Chairman of the Board, the President, any Vice President or Treasurer
of the Corporation, showing in reasonable detail the facts requiring
such adjustment and the Conversion Rate that will be effective after
such adjustment. The Corporation shall also cause a notice setting
forth any such adjustments to be sent by mail, first class, postage
prepaid, to each record holder of Preferred Stock at his or its
address appearing on the stock register.
(c) In order to exercise the conversion privilege, the holder of
any Preferred Stock to be converted shall surrender his or its
certificate or certificates therefor to the principal office of the
transfer agent (or if there is no transfer agent appointed at that
time, then the Corporation at its principal office), and shall give
written notice to the Corporation at such office that the holder
elects to convert the Preferred Stock represented by such
certificates, or any number thereof. Such notice shall also state the
name or names (with address) in which the certificate or certificates
for shares of Common Stock issuable on such conversion shall be
issued, subject to any restrictions on transfer relating to shares of
the Preferred Stock or shares of Common Stock upon the conversion
thereof. If so required by the Corporation, certificates surrendered
for conversion shall be endorsed or accompanied by written instrument
or instruments of transfer, in form satisfactory to the Corporation,
duly authorized in writing. The date of receipt by the transfer agent
(or by the Corporation if the Corporation serves as its own transfer
agent) of the certificates and notice shall be the conversion date. As
soon as practicable after receipt of such notice and surrender of the
certificate or certificates for Preferred Stock as aforesaid, the
Corporation shall cause to be issued and delivered at such office to
such holder, or on his or its written order, a certificate or
certificates for the number of full shares of Common Stock issuable on
such conversion in accordance with the provisions hereof.
(d) The Corporation shall at all times when the Preferred Stock
shall be outstanding reserve and keep available out of its authorized
but unissued stock, for the purposes of effecting the conversion of
the Preferred Stock such number of its duly authorized shares of
Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding Preferred Stock.
8
(e) Upon any such conversion, no adjustment to the Conversion
Rate shall be made for declared and unpaid dividends on the Preferred
Stock surrendered for conversion, any accumulated and unpaid dividends
on the Series C Cumulative Preferred Stock and the Series D Cumulative
Preferred Stock, if not yet declared, or on the Common Stock
delivered.
(f) All Preferred Stock which shall have been surrendered for
conversion as herein provided shall no longer be deemed to be
outstanding and all rights with respect to such shares, including the
rights, if any, to receive notices and to vote, shall forthwith cease
and terminate except only the right of the holder thereof to receive
shares of Common Stock in exchange therefor and payment of any
declared and unpaid (and, with respect to the Series C Cumulative
Preferred Stock or the Series D Cumulative Preferred Stock, any
accumulated and unpaid, if not yet declared) dividends thereon. Any of
the Preferred Stock so converted shall be retired and canceled and
shall not be reissued, and the Corporation may from time to time take
such appropriate action as may be necessary to reduce the authorized
Series A Preferred Stock, Series B Preferred Stock, Series C
Cumulative Preferred Stock and the Series D Cumulative Preferred Stock
accordingly.
7. ANTI-DILUTION PROVISIONS.
The Conversion Rate shall be subject to adjustment as follows:
(a) In case the Corporation shall (i) pay a dividend in shares
of its capital stock, (ii) subdivide its outstanding shares of Common
Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares, or (iv) issue by reclassification of its
shares of Common Stock any shares of the Corporation, the Conversion
Rate in effect immediately prior thereto shall be adjusted so that the
holder of any Preferred Stock thereafter surrendered for conversion
shall be entitled to receive the number of shares of the Corporation
which he or it would have owned or have been entitled to receive after
the happenings of any of the events described above, had such
Preferred Stock been converted immediately prior to the happening of
such event. An adjustment made pursuant to this Section IV.C.7(a)
shall become effective immediately after the record date in the case
of a dividend and shall become effective immediately after the
effective date in the case of a subdivision, combination or
reclassification.
(b) If any event occurs as to which, in the opinion of the Board
of Directors of the Corporation, the provisions of this Section IV.C.7
are not strictly applicable or if strictly applicable would not
protect the holders of the Preferred Stock in accordance with the
essential intent and principles of such provisions, then the Board of
Directors shall make an adjustment in the
9
application of such provisions, in accordance with such essential
intent and principles, so as to protect such rights as aforesaid.
8. CONVERSION.
(a) Each share of Series A Preferred Stock, Series B Preferred
Stock, Series C Cumulative Preferred Stock and Series D Cumulative
Preferred Stock shall automatically be converted into the corresponding
number of shares of Common Stock at the then effective Conversion Rate
at any time upon the closing of an underwritten public offering
pursuant to an effective registration statement under the Securities
Act of 1933, as amended, covering the offer and sale of Common Stock
for the account of the Corporation to the public generally at a price
to the public which places upon the Corporation a value (prior to the
receipt of proceeds of such offering) of at least $40 million and in
which the net proceeds to the Corporation are not less than $10
million (herein referred to as a "Qualified Public Offering"). In
addition, each share of Series A Preferred Stock, Series B Preferred
Stock, Series C Cumulative Preferred Stock and Series D Cumulative
Preferred Stock shall automatically be converted into shares of Common
Stock at the then effective Conversion Rate for such shares upon the
vote to so convert of the holders of a least a majority of the shares
of Series A Preferred Stock, Series B Preferred Stock, Series C
Cumulative Preferred Stock and Series D Cumulative Preferred Stock,
respectively, then outstanding.
(b) All holders of record of Preferred Stock will be given at
least 10 days' prior written notice of the date fixed and the place
designated for mandatory conversion of shares pursuant to this Section
IV.C.8. Such notice will be sent by mail, first class, postage
prepaid, to each record holder of Preferred Stock at such holder's
address appearing on the stock register. On or before the date fixed
for conversion each holder of Preferred Stock shall surrender his or
its certificates or certificates for all such shares to the
Corporation at the place designated in such notice, and shall
thereafter receive certificates for the number of shares of Common
Stock to which such holder is entitled pursuant to this Section IV.C.8
On the date fixed for conversion, all rights with respect to the
Preferred Stock so converted will terminate, except only the rights of
the holders thereof, upon surrender of their certificate or
certificates therefor, to receive certificates for the number of
shares of Common Stock into which such Preferred Stock have been
converted and payment of any declared and unpaid (and, with respect
to the Series C Cumulative Preferred Stock and the Series D Cumulative
Preferred Stock, any accumulated and unpaid, if not yet declared)
dividends thereon. If so required by the Corporation, certificates
surrendered for conversion shall be endorsed or accompanied by written
instrument or instruments of transfer, in form satisfactory to the
Corporation, duly executed by the registered holder or by his
attorneys duly authorized in writing. All certificates evidencing
Preferred
10
Stock which are required to be surrendered for conversion in
accordance with the provisions hereof shall, from and after the date
such certificates are so required to be surrendered, be deemed to have
been retired and canceled and the Preferred Stock represented thereby
converted into Common stock for all purposes, notwithstanding the
failure of the holder or holders thereof to surrender such
certificates on or prior to such date. As soon as practicable after
the date of such mandatory conversion and the surrender of the
certificate or certificates for the Preferred Stock as aforesaid, the
Corporation shall cause to be issued and delivered to such holder, or
on his or its written order, a certificate or certificates for the
number of full shares of Common Stock issuable on such conversion in
accordance with the provisions hereof
9. REDEMPTION.
(a) Corporation shall redeem (to the extent that such redemption
shall not violate any applicable provision of the laws of the State of
Georgia) the Series A Preferred Stock at a price of $1.90 per share,
the Series B Preferred Stock at a price of $7.615 per share, the
Series C Cumulative Preferred Stock at a price of $11.48 per share and
the Series D Cumulative Preferred Stock at a price of $9.23 per share
(subject to adjustment in the event of any stock dividend, stock
split, stock distribution or combination with respect to such shares),
PLUS an amount equal to any dividends declared but unpaid thereon and
PLUS with respect to the Series C Cumulative Preferred Stock and the
Series D Cumulative Preferred Stock, any accumulated and unpaid
dividends, if not yet declared (such amount is hereinafter inferred to
as the "Redemption Price"), on the 1st day of January (the "Redemption
Date") of each of the years 2000 through 2002 thirty-three and
one-third percent (33-1/3%) of the Preferred Stock outstanding on the
first Redemption Date. In respect of each such redemption, shares of
Series A Preferred Stock, Series B Preferred Stock, Series C
Cumulative Preferred Stock and Series D Cumulative Preferred Stock
shall be redeemed in proportion to the respective numbers of shares of
each such series outstanding on the first Redemption Date. If the
Corporation is unable at any Redemption Date to redeem any Preferred
Stock then to be redeemed because such redemption would violate the
applicable laws of the State of Georgia, then the Corporation shall
redeem such Preferred Stock as soon thereafter as redemption would not
violate such laws.
(b) In the event of any redemption of only a part of the then
outstanding Preferred Stock, the Corporation shall effect such
redemption pro rata within each Series among the holders thereof
(based on the number of shares of Preferred Stock held on the date of
notice of redemption).
(c) At least thirty days prior to each Redemption Date, written
notice shall be mailed, postage prepaid, to each holder of record of
Preferred
11
Stock to be redeemed at his or its address last shown on the records
of the Corporation, notifying such holder of the number of shares so
to be redeemed, specifying the Redemption Date and the date on which
such holder's conversion rights (pursuant to Section IV.C.6 hereof) as
to such shares terminate and calling upon such holder to surrender to
the Corporation, in the manner and at the place designated, his or its
certificate or certificates representing the shares to be redeemed
(such notice is hereinafter referred to as the "Redemption Notice").
On or prior to each Redemption Date, each holder of Preferred Stock to
be redeemed shall surrender his or its certificate or certificates
representing such shares to the Corporation, in the manner and at the
place designated in the Redemption Notice, and thereupon the
Redemption Price of such shares shall be payable to the order of the
person whose name appears on such certificate or certificates as the
owner thereof and each surrendered certificate shall be canceled. In
the event less than all the shares represented by any such certificate
are redeemed, a new certificate shall be issued representing the
remaining shares. From and after the Redemption Date, unless there
shall have been a default in payment of the Redemption Price, all
rights of the holders of Preferred Stock of the Corporation (except
the right to receive the Redemption Price without interest upon
surrender of their certificate or certificates) shall cease with
respect to such shares, and such shares shall not thereafter be
transferred on the books of the Corporation or be deemed to be
outstanding for any purpose whatsoever.
(d) Except as provided in Section IV.C.9(a) above, the
Corporation shall have no right to redeem the Preferred Stock. Any
Preferred Stock so redeemed shall be permanently retired, shall no
longer be deemed outstanding and shall not under any circumstances be
reissued, and the Corporation may from time to time take such
appropriate corporate action as may be necessary to reduce the
authorized Series A Preferred Stock, Series B Preferred Stock, Series
C Cumulative Preferred Stock and Series D Cumulative Preferred Stock
accordingly. Nothing herein contained shall prevent or restrict the
purchase by the Corporation, from time to time either at public or
private sale, of the whole or any part of the Series A Preferred
Stock, Series B Preferred Stock, Series C Cumulative Preferred Stock
or Series D Cumulative Preferred Stock subject to the provisions of
applicable law.
ARTICLE IV.
The proposed amendment of the Articles of Incorporation as set forth above
was recommended to the shareholders of the Corporation by the Board of Directors
of the Corporation on the 29th day of November, 1995.
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ARTICLE V.
The foregoing Amendment to the Articles of Incorporation of the
Corporation was duly approved by the shareholders of the Corporation in
accordance with the provisions of Section 14-2-1003 of the Georgia Business
Corporation Code on the _____ day of _______________.
13
IN WITNESS WHEREOF, TSW International, Inc. has caused its duly authorized
officer to execute these Articles of Amendment as of this _____ day of
_______________, 19___.
TSW INTERNATIONAL, INC.
By:_____________________________
Title:__________________________
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SCHEDULE TO EXHIBIT 10.4.4
SCHEDULE OF TERMS OF
PREFERRED STOCK PURCHASE AGREEMENT
BETWEEN TSW INTERNATIONAL, INC. AND XXXXXXX, XXXXXX INVESTORS, L.P.
DATE OF SERIES OF SHARES OF
AGREEMENT PREFERRED STOCK PRICE PREFERRED STOCK
---------- --------------- ---------- ----------------
9/11/92 A $8,536,626 1,897,028
6/20/94 B 3,000,000 393,965
11/29/95 C 2,000,000 174,216
4/15/96 C 3,000,000 261,324
8/14/96 D 2,000,000 216,685
