EXHIBIT 10.4.3
This Warrant will be void after 5:00 p.m. Eastern Daylight Time, May 5, 2000
NEITHER THIS WARRANT NOR THE SHARES USABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES ACT AND
MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM, OR IN ABSENCE OF RECEIPT BY THE COMPANY OF AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT THE WARRANT OR SHARES
SOUGHT TO BE SOLD OR TRANSFERRED MAY BE SOLD OR TRANSFERRED WITHOUT SUCH
REGISTRATION.
STOCK PURCHASE WARRANT
To Subscribe For and Purchase Common Stock of
TSW INTERNATIONAL, INC.
(Transferability Restricted as Provided in Paragraph 2 Below)
THIS CERTIFIES THAT, for value received, WARBUG, XXXXXX INVESTORS,
L.P., a Delaware limited partnership ("Warburg"), or registered assigns, is
entitled to subscribe for and purchase from TSW INTERNATIONAL, INC., a
Georgia corporation (the "Company"), at the price of Eleven Dollars and
Forty-Eight Cents ($11.48) per share at time from February 14, 1995 (the
"Effective Date") to and including May 5, 2000 up to 130,662 shares of the
Company's fully paid and nonassessable Common Stock, $0.01 par value per
share (the "Warrant Shares"); subject, however, to the provisions and upon
the terms and conditions hereinafter set forth.
1. The rights subject to this Warrant shall be determined by the
amount of disbursements made pursuant to Subordinated Floating Rate Note
("Note") dated May 5, 1995 between the Company and Warburg and shown on a
Schedule of Loan Disbursements ("Schedule") attached to that Note. Subject to
the provisions of Paragraph 6 hereof, the number of shares into which this
Warrant may be exercised at any time (the "Then Exercisable Amount") shall be
equal to the product (rounding down to the nearest whole number) obtained by
multiplying (a) 130,662 and (b) a fraction, the numerator of which shall be
total funds disbursed pursuant to the Note as shown on the Schedule and the
denominator of which shall be $1,500,000. Absent an adjustment pursuant to
Paragraph 6 below, in no event shall the number of shares into which this
Warrant may be exercised exceed 130,662 Warrant Shares (the "Maximum Amount")
if Warburg fully funds the Note.
2. The right represented by this Warrant may be exercised by the
holder hereof, in whole or in part (but not as to a fractional share of Common
Stock), by the surrender of this Warrant (properly endorsed, if required), at
the principal office of the Company (or such other office as the Company may
designate by notice in writing to the holder hereof, and upon payment to the
Company, by cash or by certified check or bank draft, of the purchase price
for such Warrant Shares. The Company agrees that the shares so purchased
shall be deemed to be issued to the holder hereof as the record owner of such
shares, as of the close of business of the date on which this Warrant shall
have been surrendered and payment made for such shares, as aforesaid.
Certificates for the shares so purchased shall be delivered to the holder
hereof within a reasonable time, not exceeding ten (10) days, after the
rights represented by this Warrant shall have been so exercised, and, unless
this Warrant has expired.
3. The Warrant will be exercisable, assignable and transferable for a
period of five (5) years from the Effective Date; provided however, that any
transfer or assignment of the Warrant to any person must be made in
accordance with provisions of the Securities Act of 1933, as amended, or any
similar federal statute then in effect (the "Federal Act") and the Georgia
Securities Act 1973, as amended (the "Georgia Act") and any applicable state
securities statute (collectively, the "Securities Laws").
4. The holder of this Warrant, by acceptance hereof, acknowledges and
agrees that, prior to the disposition of any shares of Common Stock
theretofore purchased upon the exercise hereof under circumstances that
might require registration of such shares under the Security Laws, such
holder shall therefore comply with the provisions of the following
subdivisions:
(a) If, in the opinion of the Company's counsel, the
proposed disposition does not require registration under the Securities
Laws, of the shares of Common Stock issuable or issued upon the exercise
of the Warrant, the Company shall, as promptly as practicable, notify
the holder hereof of such opinion, whereupon such holder shall be
entitled to dispose of such shares theretofore issued upon the exercise
hereof, all in accordance with the terms of the notice delivered by such
holder to the Company.
(b) If, in the option of the Company's counsel, such proposed
disposition requires a registration of the shares of Common Stock
issuable or issued upon exercise of this Warrant, the Company shall
promptly give written notice to all then holders of the Warrant, at the
respective addresses thereof shown on the books of the Company, of a
proposed registration under the Securities Laws or of a post-effective
amendment to the Company's Registration Statement previously filed, with
respect to share of Common Stock issuable or issued upon the exercise of
the Warrant, and the Company shall, as expeditiously as possible, use
its best efforts to effect such registration or post-effective
amendment, under such Securities Laws, provided the participating
holders bear all expenses pro rata, including but not limited to legal,
accounting and printing expenses, of the shares of Common Stock issuable
or issued upon exercise of this Warrant, all to the extent requisite to
permit the sale of the Common Stock referred to in the forgoing clause,
upon the terms of offering supplied in writing to the Company by the
participating holders thereof, and upon the effectiveness of such
registration or pro rata, keep effective such registration or
post-effective amendment and, from time to time, amend or supplement the
prospectus used in connection therewith, for the period and to the
extent necessary in order to comply with the Securities Laws with
respect to the Common Stock referred to in the foregoing clause during
such period. Notwithstanding the foregoing, the Company shall not be
required to effect more than one registration or post-effective
amendment pursuant to this Paragraph 4 (b).
(c) If any shares of Common Stock issuable pursuant to this
Warrant require declaration or registration with, or approval of, any
governmental official or authority (other than registration under
Securities Laws) before shares issued pursuant hereto may be
transferred, or before such shares may be issued on the exercise hereof,
the Company, at the participating warrant holder's expense pro rata,
will take all requisite action in connection with such declaration, and
will use its best efforts to cause such shares and/or this Warrant to be
duly registered or approved, as may be required.
5. The Company covenants and agrees that all shares that may be
issued upon the exercise of the rights represented by this Warrant will, upon
issuance, be validly issued, fully paid and nonassessable, and free from all
taxes, liens and charges with respect to the use thereof (other than taxes in
respect of any transfer occurring contemporaneously with such issue). The
Company further covenants and agrees that, during the period within which the
rights represented by this Warrant may be exercised, the Company will at all
times have authorized, and reserved, a sufficient number of shares of its
Common Stock to provide for the exercise of the rights represented by this
Warrant, and will, at its expense, expeditiously upon each such reservation
of shares, procure the listing thereof (subject to issuance or notice of
issuance) on all stock exchanges, if any, on which the Common Stock is then
listed.
6. In the event that the Company shall, at any time or from time to time
during the period this Warrant shall be exercisable, issue any shares of
Common Stock (other than shares issuable pursuant to options outstanding as
of May 5, 1995 and shares issuable pursuant to incentive stock plans adopted
for benefit of the Company's employees and option plans adopted for benefit
of the Company's outside directors) for a consideration per share less than
the Warrant purchase price in effect immediately prior to the issuance of
such shares, or without consideration, then, and thereafter successively upon
each such issuance, the Warrant purchase price in effect immediately prior to
the issuance of such shares shall forthwith be reduced to a price (calculated
to the nearest full cent) determined by dividing (a) an amount equal to (i)
the total number of shares of Common Stock outstanding immediately prior to
such issuance, multiplied by the Warrant purchase price in effect immediately
prior to such issuance, plus (ii) the consideration, in any, received by the
Company upon such issuance, by (b) the total number of shares of Common Stock
outstanding immediately after such issuance. After each adjustment of the
Warrant purchase price, the total number of shares of Common Stock
purchasable upon exercise of this Warrant shall be proportionately adjusted,
that is, adjusted to such a number of shares as the Warrant purchase price,
multiplied by the number of shares of Common Stock, will pay for at the
adjusted Warrant purchase price. For purpose of this Paragraph 6, the
following provisions shall be applicable:
(a) In the case of the issuance of shares of Common Stock or
other securities of the Company for cash, the consideration received by
the Company therefor shall be deemed to be the cash proceeds received by
the Company therefor, less any commissions or other expenses paid or
incurred by the Company for any underwriting of, or otherwise in
connection with, the issuance thereof.
(b) In case of the issuance of shares of Common Stock or other
securities of the Company for a consideration other than cash, or a
consideration a part of which shall be other than cash, the amount of
the consideration received by the Company therefor shall be deemed to be
the cash proceeds, in any, received by the Company, plus the fair market
value of the consideration other than cash, as determined by the Board
of Directors of the Company, less any commissions or other expenses paid
or incurred by the Company for any underwriting of, or otherwise in
connection with, such issuance; provided, however, that the amount of
such consideration other than cash shall in no event exceed the cost
thereof as recorded on the books of the Company.
(c) In case of the issuance by the Company of (i) any
security that is convertible into or exchangeable for shares of Common
Stock, or (ii) any rights, warrants (other than this Warrant and any
warrants previously issued to Warburg) or options to purchase shares of
Common Stock, the Company shall be deemed to have issued the maximum
number of shares of Common Stock in to which such
convertible or exchangeable securities may be converted or exchanged, or
the maximum number of shares of Common Stock deliverable upon the
exercise of such rights, warrants or option, as the case may be, for the
consideration (determined as provided in Paragraph 6(a) and 6(b) above)
received by the Company for such convertible or exchangeable securities,
or for such rights or options, as the case may be, plus the minimum
aggregate price at which shares of Common Stock are to be delivered upon
the exercise of such rights, warrants or options, as the case may be. On
the expiration of such rights, warrants or options, or the termination
of such right to convert or exchange, the Warrant purchase price
hereunder shall be readjusted to such Warrant purchase price as would
have obtained had the adjustments made upon the issuance of such rights,
warrants or options, or convertible or exchangeable securities been made
upon the basis of the delivery of, and receipt of the consideration or
adjustment payment, if any, actually paid for, only the number of shares
of Common Stock actually delivered upon the exercise of such rights,
warrants or options, or upon the conversion or exchange of such
securities. Except as provided in the next preceding sentence, no
further adjustment of the Warrant purchase price shall be made as a
result of the actual issuance of shares of Common Stock referred to in
this Paragraph 6(c).
(d) The consideration for any securities issued as a stock
dividend shall be deemed to be zero.
(e) The number of shares of stock of any class at any time
outstanding shall include all shares of stock of that class then owned
or held by or for the account of the Company.
(f) If at any time or from time to time, the Company shall, by
subdivision, consolidation or reclassification of shares, or otherwise,
change as a whole the outstanding shares of Common Stock into a
different number or class of shares, the number and class of shares as
so changed shall, for the purpose of each Warrant and the terms and
conditions hereof, replace the shares outstanding immediately prior to
such change, and the Warrant purchase price in effect, and the number of
shares purchasable under each Warrant, immediately prior to the date on
which such change shall become effective, shall be proportionately
adjusted.
(g) Irrespective of any adjustment or change in the Warrant
purchase price or the number of shares of Common Stock actually
purchasable under each warrant of like tenor, the Warrants theretofore
and thereafter issued may continue to express the Warrant purchase price
per share and the number of shares purchasable thereunder as if the Warrant
purchase price per share and the number of shares purchasable were
expressed on the Warrant when initially issued.
(h) All adjustments pursuant to this Paragraph 6 shall be
deemed to affect both the Maximum Amount and the Then Exercisable Amount
and the exercise price therefor, it being the intention of Warburg and the
Company that the highest number of Warrant Shares (whether or not
Warburg shall then have the right to purchase such Shares) be affected
by any such adjustment.
7. If at any time while Warrant is outstanding, the Company shall
consolidate with or merge into another corporation, the holder hereof shall
thereafter be entitled upon exercise hereof to purchase, with respect to each
share of Common Stock purchasable hereunder immediately prior to the date on
which such consolidation or merger shall become effective, the securities or
property to which a holder of one share of Common Stock would have been
entitled upon such consolidation or merger, without any
change in, or payment in addition to, the Warrant purchase price in effect
immediately prior to such merger or consolidation, and the Company shall take
such steps in connection with such consolidation or merger as may be
necessary to assure that all the provisions of each Warrant shall thereafter
be applicable, as nearly as reasonably may be, in relation to any securities
or property thereafter deliverable upon the exercise of each Warrant. The
Company shall not effect any such consolidation or merger unless prior to the
consummation thereof the successor corporation (if other than the Company)
resulting therefrom shall assume, by written instrument executed and mailed
to the registered holder of each Warrant at the address of such holder such
securities or property as in accordance with the foregoing provisions such
holder shall be entitled to purchase.
8. If the Company shall at any time or from time to time (a)
distribute (otherwise than as a dividend in cash, or in Common Stock or
securities convertible into, or exchangeable for Common Stock) to the holders
of Common Stock, or grant any rights to such holders to acquire, assets
without any consideration paid or to be paid by them, or for a consideration
less than the fair market value of such assets, as determined by the Board of
Directors of the Company, or (b) declare a dividend upon the Common Stock (to
the extent payable otherwise than out of earnings or earned surplus, as
indicated by the accounting treatment of such dividend in the books of the
Company, and otherwise than in Common Stock, or securities convertible into,
or exchangeable for, Common Stock), the Company shall reserve, and the holder
of each Warrant shall thereafter upon exercise thereof be entitled to
receive, for each share of Common Stock purchasable thereunder on the record
date established by the Company for the determination of holders of Common
Stock entitled to receive such distribution, right or dividend (or if no such
record date shall have been established, on the date of such distribution,
grant of such right or payment of such dividend), and without increase in,
or, except in respect of the consideration, if any, paid for such assets by
stockholders, payment in addition to, the then-current Warrant purchase price,
(i) the amount of such assets that would have been distributable to, (ii) the
amount of such dividend (to the extent thereof above-stated) that such holder
would have received, had such holder been a holder of one share of Common Stock
on such record (or other) date.
9. Upon the happening of any event requiring an adjustment of the
Warrant purchase price hereunder, the Company shall forthwith give written
notice thereof to the registered holder of each Warrant, stating the adjusted
Warrant purchase price and the adjusted number of shares of Common Stock
purchasable upon the exercise thereof resulting from such event, and setting
forth in reasonable detail the method of calculation and the facts on which
such calculation is based. The certificate of the Company's independent
public accountants shall be conclusive evidence of the correctness of any
computation made hereunder. In case any voluntary or involuntary dissolution,
liquidation or winding-up of the Company shall at any time be proposed, the
Company shall give at least twenty (20) days' prior written notice thereof to
the registered holder of each Warrant, stating the date on which such event is
to take place and the date (which shall be at least twenty (20) days after the
giving of such notice) as of which the holders of Common Stock of record shall
be entitled to exchange their Common Stock for securities or other property
deliverable upon such dissolution, liquidation or winding-up (on which date,
in the event such dissolution, liquidation or winding-up shall actually take
place, each Warrant and all rights with respect thereto shall terminate).
Notices pursuant to this Paragraph shall be given by first class mail,
postage prepaid, addressed to the registered holder of each Warrant at the
address of such holder appearing in the records of the Company.
10. In case, at any time during the period this Warrant shall be
exercisable,
(a) the Company shall pay any dividend payable in stock on its
Common Stock, or make any distribution (other than cash dividends paid at
an established annual or quarterly rate) to the holders of its Common
Stock;
(b) the Company shall offer for subscription pro rata to the
holders of its Common Stock any additional shares of stock of any class, or
other rights;
(c) there shall be any capital reorganization, or reclassification
of the capital stock of the Company, or consolidation or merger of the
Company with, or sale of all or substantially all of its assets to, another
corporation; or
(d) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Company,
then, in any one or more of such cases, the Company shall give to the holder
of this Warrant (i) at least twenty (20) days' prior written notice of the
date on which the books of the Company shall close or a record shall be taken
for such dividend, distribution or subscription rights, or for determining
rights to vote in respect of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation winding-up, and (ii) in
the case of any such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding-up, at least twenty (20) days'
prior written notice of the date when the same shall take place. Such notice
in accordance with the foregoing clause (i) shall also specify, in the case
of any such dividend, distribution or subscription rights, the date on which
the holders of Common Stock shall be entitled thereto, and such notice in
accordance with the foregoing clause (ii) shall also specify when the holders
of Common Stock shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up, as the case may be. Each such written notice shall be given by
first class mail, postage prepaid, addressed to the holder of the Warrant at the
address of such holder as shown on the books of the Company.
11. As used herein, the term "Common Stock" shall mean and include the
Company's Common Stock authorized on the Effective Date, and shall also
include any capital stock of any class of the Company thereafter authorized
that shall not be limited to a fixed use or percentage in respect of the
rights of the holders thereof to participate in dividends and in the
distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding-up of the Company; provided, that the shares purchasable
pursuant to this Warrant shall include only shares of such class referred to in
the first paragraph hereof designated in the Company's Articles of Incorporation
as Common Stock on the Effective Date, or, in the case of any reorganization,
reclassification, consolidation, merger or sale of assets of the character
referred to in Paragraph 6 hereof, the stock, securities or assets provided
for in such paragraph.
12. This Warrant is exchangeable, upon its surrender by a registered
holder at such office of the Company, for new Warrants of like tenor,
representing, in the aggregate, the right to subscribe for the purchase the
number of shares that may be subscribed for and purchased hereunder, each of
such new Warrants to represent the right to subscribe for and purchase such
number of shares as shall be designated by the registered holder at the time
of such surrender. Upon receipt of evidence satisfactory to the Company of
the loss, theft, destruction, upon delivery of a bond of indemnity
satisfactory to the Company, or, in the case of any such mutilation, upon
surrender or cancellation of this Warrant, the Company will issue to the
registered holder a new Warrant of like tenor, in lieu of this Warrant,
representing the right to subscribe for the purchase the number of shares
that may be subscribed for and purchased hereunder. Nothing herein is
intended to authorize the transfer of this Warrant, except as permitted under
Paragraph 3.
IN WITNESS WHEREOF, the undersigned has caused this Warrant to be signed
by its duly authorized officers under its corporate seal, and to be dated
this 5th day of May, 1995.
TSW INTERNATIONAL, INC.
By: /s/[illegible]
------------------------
Attest:
/s/ Xxxxx X. Xxxxxxxx
----------------------
Secretary
(Corporate Seal)
SCHEDULE TO EXHIBIT 10.4.3
SCHEDULE OF TERMS OF
STOCK PURCHASE WARRANT AGREEMENTS
BETWEEN TSW INTERNATIONAL, INC. AND XXXXXXX, XXXXXX INVESTORS, L.P.
DATE OF WARRANT WARRANT WARRANT
AGREEMENT SHARES EXERCISE PRICE EXPIRATION DATE
--------- ------- -------------- ---------------
6/2/94 111,356 $7.615 6/24/04
11/10/94 302,595 7.93 11/10/99
1/4/95 423,633 7.93 1/4/00
2/14/95 133,142 7.93 2/14/00
5/5/95 130,662 11.48 5/5/00
6/27/95 34,843 11.48 6/27/00
10/13/95 217,770 11.48 10/13/00
