Exhibit 9.2
TSW VOTING AGREEMENT
This Voting Agreement (this "VOTING AGREEMENT") is made and entered
into as of June 5, 1997 (the "EFFECTIVE DATE") among The Indus Group, Inc., a
California corporation ("INDUS"), Newco Group, Inc., a Delaware corporation
("NEWCO"), Warburg, Xxxxxx Investors, L.P. ("WARBURG"), Xxxx X. Blend, III and
Xxxx X. Xxxxxx (together with Warburg, the "SHAREHOLDERS").
RECITALS
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A. This Voting Agreement is entered into pursuant to that certain
Agreement and Plan of Merger and Reorganization dated as of June 5, 1997, as
such may be amended (the "PLAN") entered into by and among INDUS, Newco and TSW
International, Inc., a Georgia corporation ("TSW"). The Plan provides for the
formation of a Georgia corporation ("SUB"), a wholly owned subsidiary of Newco,
and the statutory merger of Sub with and into TSW (the "TSW MERGER"), all
pursuant to the terms and conditions of the Plan and the Agreement of Merger to
be entered into between Sub and TSW in the form attached to the Plan (the
"AGREEMENT OF MERGER"). The Plan and the Agreement of Merger are collectively
referred to herein as the "MERGER AGREEMENTS." Capitalized terms used herein
and not defined herein shall have the meanings that such terms have in the Plan.
B. The Merger Agreements provide for the conversion of all of the
issued and outstanding stock of TSW at the Effective Time into shares of Newco
Common Stock, all as more particularly set forth in the Plan.
C. As a condition to the willingness of INDUS to enter into the Plan,
INDUS has required that Shareholders agree, and in order to induce INDUS to
enter into the Plan the Shareholders have agreed, to enter into this Voting
Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. VOTING OF TSW SECURITIES
1.1 TSW Securities. Each Shareholder's signature page attached
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hereto sets forth all shares of TSW capital stock and any other securities of
TSW owned by each Shareholder, including all securities of TSW as to which each
Shareholder has sole or shared voting or investment power, and all rights,
options and warrants to acquire shares of capital stock or other securities of
TSW granted to or held by each Shareholder (such shares of TSW capital stock,
other securities of TSW and rights, options and warrants to acquire shares of
TSW capital stock and other securities of TSW are hereinafter collectively
referred to as "TSW STOCK"). As used herein, the term "NEW TSW SECURITIES"
means, collectively, any and all shares of TSW capital stock, other securities
of TSW and rights, options and warrants to acquire shares of TSW capital stock
and other securities of TSW that each Shareholder may purchase or otherwise
acquire any interest in (whether of record or beneficially), on and after the
Effective Date
of this Voting Agreement and prior to the Expiration Date (as defined below).
All New TSW Securities will be subject to the terms of this Voting Agreement to
the same extent and in the same manner as if they were TSW Securities. The TSW
Stock and the New TSW Securities shall be collectively referred to herein as the
"TSW SECURITIES". As used herein, the term "EXPIRATION DATE" means the earliest
to occur of (i) the Effective Time, or (ii) such time as the Plan may be
terminated in accordance with its terms.
1.2 Voting Agreement. Each Shareholder hereby agrees with INDUS and
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Newco that, prior to the Expiration Date, at any meeting of the shareholders of
TSW, however called, and in any written action by consent of shareholders of
TSW, unless otherwise directed in writing by INDUS, each Shareholder shall vote
the TSW Securities:
(i) for approval of the Plan, the Agreement of Merger, and the
transactions contemplated thereby, including the TSW Merger, and for
approval of any action required in furtherance hereof and thereof;
(ii) against any action or agreement that would result in a
breach of any representation, warranty, covenant or obligation of TSW in
the Plan; and
(iii) against the following actions (other than those actions that
relate to the TSW Merger and the transactions contemplated by the Plan):
(A) any merger, consolidation or other business combination involving TSW
or any subsidiary of TSW with any party other than Newco, INDUS or their
respective affiliates; (B) any sale, lease or transfer of more than a
significant part of the assets of TSW or any subsidiary of TSW to any party
other than Newco, INDUS or their respective affiliates (except in the
ordinary course of business); (C) any reorganization, recapitalization,
dissolution or liquidation of TSW or any subsidiary of TSW; (D) any change
in a majority of the board of directors of TSW; (E) any amendment to the
Articles of Incorporation of TSW; (F) any material change in the
capitalization of TSW or TSW's corporate structure; or (G) any other
action which is intended, or could reasonably be expected to, impede,
interfere with, delay, postpone, discourage or adversely affect the TSW
Merger or any of the other trans actions contemplated by the Plan or this
Voting Agreement.
Prior to the Expiration Date, each Shareholder shall not enter into
any agreement or understanding with any person to vote or give instructions in
any manner inconsistent with clause "(i)", "(ii)" or "(iii)" of the preceding
sentence.
1.3 Proxy: Further Assurances.
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(i) Contemporaneously with the execution of this Voting
Agreement, each Shareholder shall deliver to TSW a proxy in the form attached
hereto as Attachment 1, which shall be irrevocable to the fullest extent
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permitted by law, with respect to the INDUS Securities (the "PROXY").
(ii) Each Shareholder shall perform such further acts and execute
such further documents and instruments as may reasonably be required to vest in
TSW the power to carry out and give effect to the provisions of this Voting
Agreement.
SECTION 2. WAIVER OF APPRAISAL RIGHTS
Each Shareholder hereby waives any rights of appraisal and any
dissenters' rights that such Shareholder may have in connection with the TSW
Merger and further specifically waives any rights to receive material required
by the Georgia Business Combination Code (the "GBCC") to be sent to such
Shareholder in a notice of the meeting of TSW shareholders held with respect to
the TSW Merger, including notice of any applicable dissenter's rights as
provided in Sections 14-2-1320 and 14-2-1322 of the GBCC.
SECTION 3. NO SOLICITATION
Each Shareholder covenants and agrees with INDUS and Newco that,
during the period commencing on the date of this Voting Agreement and ending on
the Effective Date, each Shareholder shall not, directly or indirectly, (i)
solicit or initiate discussions or engage in negotiations with any person other
than INDUS and Newco or take any action intended, designed or reasonably likely
to facilitate the efforts of any person, other than INDUS and Newco, relating to
the possible acquisition of TSW or any TSW Subsidiary (whether by way of merger,
purchase of its capital stock, purchase of assets or otherwise) or any material
portion of its capital stock or assets ("ACQUISITION PROPOSAL"), (ii) furnish
any nonpublic information regarding TSW to any person in connection with or in
response to an Acquisition Proposal or potential Acquisition Proposal; (iii)
engage in discussions with any person with respect to any Acquisition Proposal;
(iv) approve, endorse or recommend any Acquisition Proposal; or (v) enter into
any letter of intent or other similar document or any contract contemplating or
otherwise relating to any Acquisition Proposal. Each Shareholder shall
immediately cease any existing discussions with any persons other than INDUS and
Newco that relate to any Acquisition Proposal.
SECTION 4. OBLIGATIONS AS A DIRECTOR AND/OR OFFICER OF TSW
If at any time prior to the Expiration Date any Shareholder or a
representative of any Shareholder is a member of the Board of Directors of TSW
("DIRECTOR") or an officer of TSW, nothing in this Agreement shall limit or
restrict the Director or officer in acting in his or its capacity as a Director
or officer, as the case may be, of TSW and in the exercise of his or its
fiduciary duties and responsibilities in such capacity, it being agreed and
understood that this Agreement shall apply to such Shareholder solely in his or
its capacity as a shareholder and shall not apply to the Director's or officer's
actions, judgments or decisions as a Director or officer of TSW.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF SHAREHOLDERS
5.1 Representations, Warranties and Covenants of Shareholders. Each
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Shareholder represents, warrants and covenants as follows:
(a) Authority. Shareholder has full power and authority to enter
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into, execute, deliver and perform Shareholder's obligations under this Voting
Agreement and to make the representations, warranties and covenants herein
contained.
(b) TSW Securities Owned. Except as otherwise disclosed in the TSW
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Disclosure Letter, at the date hereof, all the TSW Stock owned by Shareholder
are, and at all times until and through the Expiration Date all the TSW
Securities owned by Shareholder will be, free and clear of any rights of first
refusal, co-sale rights, security interests, liens, pledges, claims, options,
charges or other encumbrances.
(c) Transfer Restrictions on TSW Securities. Shareholder agrees with
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INDUS not to sell, transfer, encumber or dispose of, or offer to sell, transfer,
encumber or dispose of (a "TRANSFER") any TSW Securities (other than to a party
that agrees in writing to be bound by the terms hereof (provided such Transfer
is not restricted by the Affiliate Agreement, dated the date hereof among
Shareholder and INDUS, Newco and TSW)) until the date on which the TSW
Shareholder Approval is granted.
(d) Further Assurances. Shareholder agrees to execute and deliver
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any additional documents reasonably necessary or desirable, in the opinion of
TSW or INDUS, to carry out the purposes and intent of this Voting Agreement.
SECTION 6. MISCELLANEOUS
6.1 Notices. Any notice or other communication required or permitted
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to be given under this Voting Agreement will be in writing, will be delivered
personally, by telecopier (with a hard copy also mailed), or by registered or
certified mail, postage prepaid and will be deemed given upon delivery, if
delivered personally, one business day after transmission by telecopier with
confirmation of receipt, or three (3) days after deposit in the mails, if
mailed, to the following addresses:
(i) If to INDUS or to Newco:
THE INDUS GROUP, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000
With a copy to:
Wilson, Sonsini, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Xx., Esq.
Telecopier: (000) 000-0000
(ii) If to a Shareholder: To the address for notice for such
Shareholder set forth on the relevant signature page attached hereto,
With copies to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Telecopier: (000) 000-0000
and
Xxxxxxxx Xxxxxxx LLP
NationsBank Plaza
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopier (000) 000-0000
or to such other address as a party may have furnished to the other parties in
writing pursuant to this Section 6.1.
6.2 Termination. This Voting Agreement shall be terminated and shall
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be of no further force and effect upon the Expiration Date.
6.3 Counterparts. This Voting Agreement may be executed in any
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number of counterparts, each of which will be an original as regards any party
whose signature appears thereon and all of which together will constitute one
and the same instrument. This Voting Agreement will become binding when one or
more counterparts hereof, individually or taken together, will bear the
signatures of both parties reflected hereon as signatories.
6.4 Assignment: Binding Upon Successors and Assigns. Neither party
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hereto may assign any of its rights or obligations hereunder without the prior
written consent of the other party hereto. This Voting Agreement will be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
6.5 Waiver and Amendment. The waiver by a party of any breach hereof
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or default in the performance hereof will not be deemed to constitute a waiver
of any other default or any succeeding breach or default. This Voting Agreement
may be amended by the parties hereto upon the execution and delivery of a
written agreement executed by the parties hereto.
6.6 Governing Law. This Voting Agreement shall be governed by the
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laws of the State of Delaware, without giving effect to the principles of
conflicts of laws thereof. The parties consent to the personal jurisdiction of
and the venue in the state and federal courts within such county.
6.7 Severability. If any term, provision, covenant or restriction of
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this Voting Agreement (or of the Plan) is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Voting Agreement (or of the Plan,
as the case may be) will remain in full force and effect and will in no way be
effected, impaired or invalidated. The parties further agree to replace such
invalid or unenforceable term with a valid and enforceable provision that will
achieve, to the greatest extent possible, the economic, business and other
purposes of the invalid or unenforceable provision.
6.8 Construction of Agreement. This Voting Agreement has been
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negotiated by the respective parties hereto and their attorneys and the language
hereof will not be construed for or against either party. A reference to a
Section will mean a Section in this Voting Agreement unless otherwise explicitly
set forth. The titles and headings herein are for reference purposes only and
will not in any manner limit the construction of this Voting Agreement which
will be considered as a whole.
6.9 Attorneys' Fees. Should suit be brought to enforce or interpret
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any part of this Voting Agreement, the prevailing party will be entitled to
recover, as an element of the costs of suit and not as damages, reasonable
attorneys' fees to be fixed by the court (including without limitation, costs,
expenses and fees on any appeal). The prevailing party will be entitled to
recover its costs of suit, regardless of whether such suit proceeds to final
judgment.
6.10 Specific Performance; Injunctive Relief. The parties hereto
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acknowledge that INDUS and Newco will be irreparably harmed and that there will
be no adequate remedy at law for a violation of any of the covenants or
agreements of the Shareholders set forth herein. Therefore it is agreed that, in
addition to any other remedies that may be available to INDUS upon any such
violation, INDUS shall have the right to enforce such covenants and agreements
by specific performance, injunctive relief or by any other means available to
INDUS at law or in equity.
6.11 Partnership. Newco and INDUS agree that if a Shareholder is a
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limited partnership, such Shareholder's general and limited partners shall in no
event be liable for any obligations or liabilities of such Shareholder under
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Voting
Agreement as of the date first set forth above.
THE INDUS GROUP INC. NEWCO CORPORATION,
a California corporation a Delaware corporation
By:____________________________ By:________________________________
Name:__________________________ Name:______________________________
Title:_________________________ Title:_____________________________
[SIGNATURE PAGE TO TSW VOTING AGREEMENT]
[Signatures of Shareholders Follow]
Shareholder's Address for Notice: ______
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Name of class and series and
number of shares of TSW
capital stock beneficially
owned by the undersigned: ______
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Number of options, warrants
or other convertible securities
convertible into TSW
capital stock beneficially
owned by the undersigned: ______
SIGNATURE:
WARBURG, XXXXXX INVESTORS, L.P.
By: Warburg, Xxxxxx & Co.
General Partner
By:___________________________________
Partner
Shareholder's Address for Notice: ______
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Name of class and series and
number of shares of TSW
capital stock beneficially
owned by the undersigned: ______
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Number of options, warrants
or other convertible securities
convertible into TSW
capital stock beneficially
owned by the undersigned: ______
SIGNATURE: ____________________________
Print Name:
Shareholder's Address for Notice: ______
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Name of class and series and
number of shares of TSW
capital stock beneficially
owned by the undersigned: ______
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Number of options, warrants
or other convertible securities
convertible into TSW
capital stock beneficially
owned by the undersigned: ______
SIGNATURE: ____________________________
Print Name:
ATTACHMENT 1
IRREVOCABLE PROXY
The undersigned shareholder of TSW International, Inc., a Georgia
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes _______________ and THE INDUS GROUP, Inc., a
California corporation ("INDUS"), and each of them, the attorneys and proxies of
the undersigned with full power of substitution and resubstitution, to the full
extent of the undersigned's rights with respect to (i) the shares of capital
stock of the Company owned by the undersigned as of the date of this proxy,
which shares are specified on the final page of this proxy, and (ii) any and all
other shares of capital stock of the Company which the undersigned may acquire
after the date hereof until such time as this Proxy terminates in accordance
with its terms. (The shares of the capital stock of the Company referred to in
clauses (i) and (ii) of the immediately preceding sentence are collectively
referred to as the "Shares.") Upon the execution hereof, all prior proxies given
by the undersigned with respect to any of the Shares are hereby revoked, and no
subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted
in connection with the Voting Agreement, dated as of the date hereof, between
INDUS, Newco Group, Inc. and the undersigned (the "Voting Agreement"), and is
granted in consideration of INDUS entering into the Agreement and Plan of Merger
and Reorganization, dated as of the date hereof, among TSW, Newco and the
Company (the "Reorganization Agreement"). Capitalized terms used but not
otherwise defined in this proxy have the meanings ascribed to such terms in the
Reorganization Agreement.
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier to occur
(the "Expiration Date") of (i) the valid termination of the Reorganization
Agreement or (ii) the Effective Time (as defined in the Reorganization
Agreement), at any meeting of the shareholders of the Company, however called,
or in any written action by consent of shareholders of the Company:
(i) for the approval of the Merger Agreements, and the
transactions contemplated thereby, including the TSW Merger, and for the
approval of any action required in furtherance hereof and thereof.
(ii) against any action or agreement that would result in a
breach of any representation, warranty, covenant or obligation of the Company in
the Plan of Reorganization; and
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(iii) against the following actions (other than those actions that
relate to the TSW Merger and the transactions contemplated by the Plan of
Reorganization): (A) any merger, consolidation or other business combination
involving the Company or any subsidiary of the Company with any party other than
Newco, INDUS or their respective affiliates; (B) any sale, lease or transfer of
more than any significant part of the assets of the Company or any subsidiary of
the Company to any party other than Newco, INDUS or their respective affiliates
(except in the ordinary course of business); (C) any reorganization,
recapitalization, dissolution or liquidation of the Company or any subsidiary of
the Company; (D) any change in a majority of the board of directors of the
Company; (E) any amendment to the Company Articles of Incorporation; (F) any
material change in the capitalization of the Company or the Company's corporate
structure except as contemplated by the Reorganization Agreement; or (G) any
other action which is intended, or could reasonably be expected to, impede,
interfere with, delay, postpone, discourage or adversely affect the TSW Merger
or any of the other transactions contemplated by the Reorganization Agreement or
the Voting Agreement.
Prior to the Expiration Date, at any meeting of the shareholders of
the Company, the attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares in their discretion with respect to (i)
any Acquisition Proposal (as such term is defined in the Voting Agreement) and
any related transaction or agreement and (ii) any action which is intended, or
could reasonably be expected, to facilitate the consummation of any Acquisition
Proposal.
The undersigned shareholder may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, successors and assigns of the
undersigned (including any transferee of any of the Shares).
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Any obligation of the undersigned hereunder shall be binding upon the
heirs, successors and assigns of the undersigned (including any transferee of
any of the Shares).
This proxy shall terminate upon the Expiration Date.
Dated:____________________
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Name:_____________________
Name of class and series and
number of shares of TSW
capital stock represented
hereby:
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