EXECUTION COPY
ACTIVANT SOLUTIONS INC.
$120,000,000
Floating Rate Senior Notes due 2010
PURCHASE AGREEMENT
March 10, 2005
X.X. XXXXXX SECURITIES INC.
DEUTSCHE BANK SECURITIES INC.
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Activant Solutions Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell (the
"Offering") $120,000,000 aggregate principal amount of the Company's Floating
Rate Senior Notes due 2010 (the "Notes"). The Notes will be issued pursuant to
an indenture dated March 30, 2005 (the "Indenture") between the Company, the
Guarantors named therein and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee").
The Notes will initially be guaranteed on an unsecured senior basis (the
"Guarantees," and together with the Notes, the "Securities") by each of the
Company's direct and indirect subsidiaries (the "Subsidiaries") identified on
Schedule II hereto (collectively, the "Guarantors," and together with the
Company, the "Issuers". The Issuers hereby confirm their agreement with X.X.
Xxxxxx Securities Inc. and Deutsche Bank Securities Inc. (each an "Initial
Purchaser", and together the "Initial Purchasers") concerning the purchase of
the Securities from the Issuers by the Initial Purchasers.
The Securities will be offered and sold to the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "Securities
Act"), in reliance upon exemptions therefrom. The Company has prepared a
preliminary offering memorandum dated February 25, 2005 (the "Preliminary
Offering Memorandum") and will prepare a final offering memorandum dated the
date hereof (the "Final Offering Memorandum") setting forth information
concerning the Company, the Guarantors and the Securities. Copies of the
Preliminary Offering Memorandum have been, and copies of the Final Offering
Memorandum will be, delivered by the Issuers to the Initial Purchasers pursuant
to the terms of this Agreement.
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Any references herein to the Preliminary Offering Memorandum and the Final
Offering Memorandum shall be deemed to include all amendments and supplements
thereto and any documents incorporated by reference therein, unless otherwise
noted. The Issuers hereby confirm that they have authorized the use of the
Preliminary Offering Memorandum and the Final Offering Memorandum in connection
with the offering and resale of the Securities by the Initial Purchasers in
accordance with Section 2.
Holders of the Notes (including the Initial Purchasers and their direct and
indirect transferees) will be entitled to the benefits of an Exchange and
Registration Rights Agreement substantially in the form attached hereto as Annex
A (the "Registration Rights Agreement"), pursuant to which the Company and the
Guarantors will agree to file with the Securities and Exchange Commission (the
"Commission") (i) a registration statement under the Securities Act (the
"Exchange Offer Registration Statement") registering an issue of senior notes of
the Company (the "Exchange Notes") and guarantees of the Guarantors (together
with the Exchange Notes, the "Exchange Securities") which are identical in all
material respects to the Notes and the Guarantees, respectively (except that the
Exchange Securities will not contain terms with respect to transfer
restrictions), and (ii) under certain circumstances, a shelf registration
statement pursuant to Rule 415 under the Securities Act (the "Shelf Registration
Statement").
Concurrently with the closing of the Offering, the Company intends to:
(i) purchase any and all of the outstanding capital stock of Speedware
Corporation Inc. ("Speedware") tendered to the Company as of such date
pursuant to an Offer to Purchase dated as of February 21, 2005 (the "Tender
Offer"), as amended, supplemented and extended from time to time (the
"Speedware Acquisition") and
(ii) amend its existing senior credit facility dated as of June 27,
2003 with JPMorgan Chase Bank, N.A., as administrative agent, and a
syndicate of banking and financial institutions party thereto (the "Credit
Facility") to permit the Speedware Acquisition and the transactions related
thereto (the "Credit Agreement Amendment" and together with the Offering
and the Speedware Acquisition, the "Transactions").
The proceeds of the Offering will be used to fund a portion of the purchase
price necessary to purchase all of the issued and outstanding shares of capital
stock of Speedware and pay transaction fees and expenses.
Capitalized terms used but not defined herein shall have the meanings given
to such terms in the Final Offering Memorandum.
1. Representations, Warranties and Agreements of the Issuers. The Issuers
represent and warrant, jointly and severally, to, and agree with, the Initial
Purchasers on
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the date hereof and the Closing Date (with respect to those made at the Closing
Date, after giving effect to the transactions contemplated by this Agreement)
that:
(a) The Preliminary Offering Memorandum, as of its date did not, and
the Final Offering Memorandum, as of its date and as of the Closing Date
(as defined in Section 3), did not (or will not) contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Issuers make no representation or warranty as to information contained in
or omitted from the Preliminary Offering Memorandum or the Final Offering
Memorandum in reliance upon and in conformity with written information
relating to the Initial Purchasers furnished to the Issuers by or on behalf
of the Initial Purchasers specifically for use therein (the "Initial
Purchasers' Information"). The parties hereto acknowledge and agree that,
for all purposes of this Agreement, the Initial Purchasers' Information
consists solely of the statements relating to the Initial Purchasers in the
third paragraph, fifth and sixth sentences of the eighth paragraph, and
tenth paragraph under the heading "Plan of distribution" in the Final
Offering Memorandum.
(b) The Preliminary Offering Memorandum as of its date contained, and
the Final Offering Memorandum, as of its date and as of the Closing Date,
contained and will contain all of the information that, if requested by a
prospective purchaser of the Securities, would be required to be provided
to such prospective purchaser pursuant to Rule 144A(d)(4) under the
Securities Act.
(c) Assuming the accuracy of the representations and warranties of the
Initial Purchasers contained in Section 2 and their compliance with the
agreements set forth herein, it is not necessary, in connection with the
issuance and sale of the Securities to the Initial Purchasers and the
offer, resale and delivery of the Securities by the Initial Purchasers in
the manner contemplated by this Agreement and the Final Offering
Memorandum, to register the Securities under the Securities Act or to
qualify the Indenture under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act").
(d) The Issuers and each of their respective subsidiaries have been
duly organized and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing as foreign corporations
in each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such
qualification, and have all power and authority necessary to own or hold
their respective properties and to conduct the businesses in which they are
engaged, except where the failure to so qualify or have such power or
authority would not, singularly or in the aggregate, have a material
adverse effect on the condition (financial or
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otherwise), results of operations, business or prospects of the Issuers and
their respective subsidiaries taken as a whole (a "Material Adverse
Effect").
(e) The authorized capital stock of the Company consists of 1,000
shares of common stock, par value $.01 per share, and is owned by Activant
Solutions Holdings Inc. ("Holding"). All of the outstanding shares of
capital stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly or indirectly by the Company, free and clear of any lien, charge,
encumbrance, security interest, restriction upon voting or transfer or any
other claim of any third party (other than liens and security interests
created pursuant to the Credit Facility, the related guarantees and
security documents or any document or agreements contemplated thereby, the
Indenture or applicable law or as disclosed in the Support Agreement).
(f) The Issuers have all requisite corporate power and authority to
execute and deliver, to the extent each is a party thereto, this Agreement,
the Indenture, the Registration Rights Agreement, the Credit Agreement
Amendment, the support agreement dated January 24, 2005 among the Company,
Activant Solutions Acquisition Co. Ltd. (the "Acquisition Co") and
Speedware (the "Support Agreement"), the Securities and the Exchange
Securities (collectively, the "Transaction Documents") and to perform their
obligations hereunder and thereunder.
(g) This Agreement has been duly authorized, executed and delivered by
the Issuers.
(h) The Registration Rights Agreement has been duly authorized by the
Issuers, and, when duly executed and delivered in accordance with its terms
by each of the parties thereto, will constitute a valid and legally binding
agreement of the Issuers, enforceable against the Issuers in accordance
with its terms, except (i) to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
and other similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at
law) and (ii) to the extent that the enforceability of rights to
indemnification and contribution thereunder may be limited by federal or
state securities laws or regulations or the public policy underlying such
laws or regulations.
(i) The Indenture has been duly authorized by the Issuers, to the
extent each is a party thereto, and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute a
valid and legally binding agreement of the Issuers enforceable against the
Issuers in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors'
rights
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generally and by general equitable principles (whether considered in a
proceeding in equity or at law).
(j) The Notes have been duly authorized by the Company and, when duly
executed, authenticated, issued and delivered as provided in the Indenture
and paid for as provided herein, will be duly and validly issued and
outstanding and will constitute valid and legally binding obligations of
the Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except to the extent
that such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
creditors' rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law).
(k) The Guarantees have been duly authorized by each of the Guarantors
and when duly executed and delivered as provided in the Indenture and when
the Notes are paid for and delivered as provided herein, will be duly and
validly issued and outstanding and will constitute valid and legally
binding obligations of each Guarantor entitled to the benefits of the
Indenture and enforceable against each such Guarantor in accordance with
their terms, except to the extent that such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law).
(l) The Exchange Securities have been duly authorized by the Issuers
to the extent each will be an obligor thereunder, and, when duly executed,
authenticated, issued and delivered as provided in the Indenture and the
Registration Rights Agreement, will be duly and validly issued and
outstanding and will constitute valid and legally binding obligations of
the Issuers entitled to the benefits of the Indenture and enforceable
against the Issuers in accordance with their terms, except to the extent
that such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
creditors' rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law).
(m) The Credit Agreement Amendment has been duly authorized, executed
and delivered by the Company and, when duly executed and delivered in
accordance with its terms by each of the other parties thereto, will
constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
creditors' rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law), other than set off
provisions contained in the Credit Agreement.
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(n) The Support Agreement has been duly authorized by the Company and
the Acquisition Co and constitutes a valid and legally binding agreement of
the Company and Acquisition Co, enforceable against the Company and
Acquisition Co in accordance with its terms, except (i) to the extent that
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law) and (ii) to the extent that the
enforceability of rights to indemnification and contribution thereunder may
be limited by federal or state securities laws or regulations or the public
policy underlying such laws or regulations.
(o) The execution, delivery and performance by the Issuers and their
respective subsidiaries of each of the Transaction Documents, to the extent
each is a party thereto, the issuance, authentication, sale and delivery of
the Securities by the Issuers and compliance by such Issuers with the terms
thereof and the consummation by the Issuers and their respective
subsidiaries, as applicable, of the transactions contemplated by the
Transaction Documents do not and will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or, except as permitted by the Transaction Documents, result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Issuers or any of their respective subsidiaries
pursuant to, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Issuers or any of their
respective subsidiaries are parties or by which the Issuers or any of their
respective subsidiaries are bound or to which any of the property or assets
of the Issuers or any of their respective subsidiaries are subject, except
for any such conflict, breach, violation, default, lien, charge or
encumbrance that has been waived and except for any such conflict, breach,
violation, default, lien, charge or encumbrance that could not, singly or
in the aggregate, reasonably be expected to have a Material Adverse Effect
or any material adverse effect on the ability of the Issuers to perform
their respective obligations under the Transaction Documents; nor will such
actions result in any violation of the provisions of the charter or bylaws
of the Issuers or any of their respective subsidiaries or result in any
violation of any statute or any order, rule or regulation of any court or
arbitrator or governmental agency or body having jurisdiction over the
Issuers or any of their respective subsidiaries or any of their properties
or assets except such violation of any statute or any order, rule or
regulation that could not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and, except for such consents,
approvals, authorizations, registrations or qualifications which have been
obtained or as may be required under (i) applicable Blue Sky or securities
laws in connection with the purchase and resale of the Securities by the
Initial Purchasers, (ii) the Trust Indenture Act in connection with the
Exchange Securities or (iii) the Securities Act and state Blue Sky laws or
securities laws in connection with the actions contemplated by the
Registration Rights Agreement; no material consent, approval,
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authorization or order of, or filing or registration with, any such court
or arbitrator or governmental agency or body is required for the execution,
delivery and performance by the applicable Issuers of each of the
Transaction Documents, the issuance, authentication, sale and delivery by
the Issuers of the Securities and compliance by the Issuers with the terms
thereof and the consummation by the Issuers of the transactions
contemplated by the Transaction Documents, except for such consents,
approvals, authorizations, filings, registrations or qualifications as may
be required to be obtained or made under the Securities Act and applicable
state securities laws as provided in the Registration Rights Agreement.
(p) Each Transaction Document, to the extent described in the Final
Offering Memorandum, will conform in all material respects to the
description of such Transaction Document contained in the Final Offering
Memorandum.
(q) (i) Ernst & Young LLP are independent public accountants with
respect to the Issuers and their respective subsidiaries within the meaning
of Rule 101 of the Code of Professional Conduct of the American Institute
of Certified Public Accountants ("AICPA") and its interpretations and
rulings thereunder, (ii) the historical financial statements (including the
related notes) contained in the Preliminary Offering Memorandum and the
Final Offering Memorandum have been prepared in conformity with generally
accepted accounting principles consistently applied throughout the periods
covered thereby and fairly present, in all material respects, the financial
condition and the results of operations of the entities purported to be
covered thereby for the respective periods indicated except as otherwise
disclosed therein and (iii) the assumptions underlying the pro forma
financial information included in the Preliminary Offering Memorandum and
the Final Offering Memorandum include all assumptions required to give
effect to the transactions and events described in the notes thereto, are
reasonable and are set forth in the Preliminary Offering Memorandum and the
Final Offering Memorandum and the pro forma adjustments give proper effect
to those assumptions and reflect the proper application of those
adjustments to the applicable historical financial statements included in
the Preliminary Offering Memorandum and the Final Offering Memorandum. The
financial information contained in the Preliminary Offering Memorandum and
the Final Offering Memorandum under the headings "Summary unaudited pro
forma condensed combined financial and operating data," "Capitalization,"
"Selected historical consolidated financial data of the Company" and
"Management's discussion and analysis of financial condition and results of
operations" is derived from the accounting records of the entities
purported to be covered thereby and fairly present in all material respects
the information purported to be shown thereby.
(r) To the Company's knowledge, (i) KPMG LLP are independent public
accountants with respect to Speedware and its respective subsidiaries
within the
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meaning of the Code of Ethics of the Ordre des comptables agrees du Quebec
and within the meaning of the Securities Act and the applicable rules and
regulations thereunder and (ii) the historical financial statements of
Speedware, including the notes thereto, as contained in the Preliminary
Offering Memorandum and the Final Offering Memorandum were prepared in
accordance with generally accepted accounting principles in Canada applied
on a basis consistent with prior periods, except as noted therein, are
correct in all material respects, are complete and present fairly the
assets, liabilities (whether accrued, absolute, contingent or otherwise)
and financial condition of Speedware and its subsidiaries on a consolidated
basis as at the respective dates thereof and the results of operations of
Speedware and its subsidiaries on a consolidated basis for the respective
periods covered thereby.
(s) There are no legal or governmental proceedings pending to which
the Issuers or any of their respective subsidiaries is a party or of which
any property or assets of the Issuers or any of their respective
subsidiaries or affiliates is the subject which, singularly or in the
aggregate, if determined adversely to the Issuers or any of their
respective subsidiaries or affiliates, could reasonably be expected to have
a Material Adverse Effect; and to the best knowledge of the Issuers no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(t) No injunction, restraining order or order of any nature by any
federal or state court of competent jurisdiction has been issued with
respect to the Issuers or any of their respective subsidiaries which would
prevent or suspend the issuance or sale of the Securities, the use of the
Final Offering Memorandum in any jurisdiction or the consummation of the
Tender Offer or any other transaction related thereto; no action, suit or
proceeding is pending against or, to the best knowledge of the Issuers
threatened against or affecting the Issuers or any of their respective
subsidiaries before any court or arbitrator or any governmental agency,
body or official, domestic or foreign, which could reasonably be expected
to interfere with or adversely affect the issuance of the Securities or the
consummation of the Tender Offer or any other transaction related thereto
or in any manner draw into question the validity or enforceability of any
of the Transaction Documents or any action taken or to be taken pursuant
thereto.
(u) None of the Issuers nor any of their respective subsidiaries is
(i) in violation of its charter or bylaws, (ii) in default, and no event
has occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant
or condition contained in any material indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which it is a
party or by which it is bound or to which any of its property or assets is
subject which could reasonably be expected to have a Material Adverse
Effect or (iii) in violation of any applicable law, ordinance, court
decree, governmental rule or
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regulation to which it or its material property or assets may be subject
which could reasonably be expected to have a Material Adverse Effect.
(v) The Issuers and each of their respective subsidiaries possess all
licenses, orders, certificates, authorizations, approvals and permits
issued by, and have made all declarations, applications, reports,
instruments, information and filings with, the appropriate federal, state
or foreign regulatory agencies or bodies that are necessary or desirable
for the ownership of their respective properties or the conduct of their
respective businesses as described in the Final Offering Memorandum and
such declarations, applications, reports, instruments, information and
filings are true, correct and complete in all material respects, except
where the failure to possess or make the same would not, singularly or in
the aggregate, have a Material Adverse Effect, and neither any of the
Issuers nor any of their respective subsidiaries has received notification
of any revocation or modification of any such license, certificate,
authorization or permit that is generally renewable in the ordinary course
or has any reason to believe that any such license, certificate,
authorization or permit will not be renewed in the ordinary course.
(w) None of the Issuers or any of their respective subsidiaries
(provided that the Issuers make no representation as to Speedware and its
subsidiaries on the Closing Date) is an open-end investment company, unit
investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the United States Investment Company
Act of 1940, as amended (the "Investment Company Act"), nor are any of them
a closed-end investment company required to be registered, but not
registered, thereunder; and none of the Issuers is and, after giving effect
to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Offering Memorandum, none of the
Issuers will be, an "investment company" as defined in the Investment
Company Act.
(x) The Issuers and each of their respective subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences.
(y) The Issuers and each of their respective subsidiaries have
insurance covering their respective properties, operations, personnel and
businesses, which insurance is in amounts and insures against such losses
and risks as are in the Issuers' opinion adequate to protect the Issuers
and their respective subsidiaries and their
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respective businesses. None of the Issuers or any of their respective
subsidiaries have received notice from any insurer or agent of such insurer
that capital improvements or other expenditures are required or necessary
to be made in order to continue such insurance.
(z) The Issuers and each of their respective subsidiaries own or
possess adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service
xxxx registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the conduct
of their respective businesses as described in the Final Offering
Memorandum; and the conduct of their respective businesses does not
conflict in any material respect with, and the Issuers and their respective
subsidiaries have not received any notice of any claim of conflict with,
any such rights of others.
(aa) The Issuers and each of their respective subsidiaries have good
and marketable title in fee simple to, or have valid rights to lease or
otherwise use, all items of real and personal property which are material
to the business of the Issuers and their respective subsidiaries, taken as
a whole, in each case free and clear of all liens, encumbrances and defects
other than (i) liens and encumbrances granted pursuant to the Credit
Facility and (ii) liens, encumbrances and defects that do not materially
interfere with the use made and proposed to be made of such property by the
Issuers and their respective subsidiaries or could not reasonably be
expected to have a Material Adverse Effect.
(bb) No labor disturbance by or dispute with the employees of the
Issuers or any of their respective subsidiaries exists or, to the best
knowledge of the Issuers is imminent, which could reasonably be expected to
have a Material Adverse Effect.
(cc) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission or other release or threatened
release of any kind of toxic or other wastes or other hazardous substances
by, due to or caused by the Issuers or any of their respective subsidiaries
(or, to the best knowledge of the Issuers, any other entity (including any
predecessor) for whose acts or omissions the Issuers or any of their
respective subsidiaries are or could reasonably be expected to be liable)
upon any property now or previously owned or leased by the Issuers or any
of their respective subsidiaries, or upon any other property, in violation
of any statute or any ordinance, rule, regulation, order, judgment, decree
or permit or which would, under any statute or any ordinance, rule
(including rule of common law), regulation, order, judgment, decree or
permit, give rise to any liability except for any violation or liability
which would not have, singularly or in the aggregate with all such
violations and liabilities, a Material Adverse Effect; and there has been
no disposal, discharge, emission or other release of any kind onto such
property or into the environment
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surrounding such property of any toxic or other wastes or other hazardous
substances with respect to which the Issuers have knowledge, except for any
such disposal, discharge, emission or other release of any kind which would
not have, singularly or in the aggregate with all such disposal, discharge,
emission and other release, a Material Adverse Effect.
(dd) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code")) or "accumulated funding deficiency" (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred with respect to
any employee benefit plan of the Issuers or any of their respective
subsidiaries which could reasonably be expected to have a Material Adverse
Effect; each such employee benefit plan is in compliance in all material
respects with applicable law, including ERISA and the Code; the Issuers and
each of their respective subsidiaries have not incurred and do not expect
to incur liability under Title IV of ERISA with respect to the termination
of, or withdrawal from, any pension plan for which the Issuers or any of
their respective subsidiaries would have any liability; and each such
pension plan that is intended to be qualified under Section 401(a) of the
Code is so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which could reasonably be expected
to cause the loss of such qualification.
(ee) On the Closing Date, the Company and its subsidiaries taken as a
whole (after giving effect to the Transactions), will be Solvent. As used
in this paragraph, the term "Solvent" means, with respect to a particular
date, that on such date (i) the present fair market value (or present fair
saleable value) of the assets of the Company and its subsidiaries is not
less than the total amount of the liabilities of the Company and its
subsidiaries on their total existing debts and liabilities (including
contingent liabilities); (ii) the Company and its subsidiaries are able to
realize upon their assets and pay their debts and other liabilities,
contingent obligations and commitments as they mature and become due in the
normal course of business; (iii) assuming consummation of the issuance of
the Securities as contemplated by this Agreement and the Final Offering
Memorandum, the Company and its subsidiaries are not incurring debts or
liabilities beyond their ability to pay as such debts and liabilities
mature; (iv) the Company and its subsidiaries are not engaged in any
business or transaction, and does not propose to engage in any business or
transaction, for which their property would constitute unreasonably small
capital after giving due consideration to the prevailing practice in the
industry in which the Company is engaged; and (v) the Company and its
subsidiaries are not otherwise insolvent under applicable federal or state
laws.
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(ff) No holder of securities of the Issuers or any of their respective
subsidiaries will be entitled to have such securities registered under the
registration statements required to be filed by the Issuers pursuant to the
Registration Rights Agreement, to the extent each is a party thereto, other
than as expressly permitted thereby or that has been waived.
(gg) No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in the
Preliminary Offering Memorandum and the Final Offering Memorandum has been
made or reaffirmed without a reasonable basis or has been disclosed other
than in good faith.
(hh) Nothing has come to the attention of the Company that has caused
the Company to believe that the statistical and market-related data
included in the Preliminary Offering Memorandum and the Final Offering
Memorandum is not based on or derived from sources that are reliable and
accurate in all material respects.
(ii) None of the proceeds of the sale of the Securities will be used,
directly or indirectly, for the purpose of purchasing or carrying any
margin security, for the purpose of reducing or retiring any indebtedness
which was originally incurred to purchase or carry any margin security or
for any other purpose which might cause any of the Securities to be
considered a "purpose credit" within the meanings of Regulation T, U or X
of the Board of Governors of the Federal Reserve System.
(jj) Except as disclosed in the Final Offering Memorandum, neither the
Issuers nor any of their respective subsidiaries is a party to any contract
agreement or understanding with any person that would give rise to a valid
claim against the Issuers or the Initial Purchasers for a brokerage
commission, finders' fee or like payment in connection with the offering
and sale of the Securities.
(kk) The Notes satisfy the eligibility requirements of Rule 144A(d)(3)
under the Securities Act.
(ll) Neither any of the Issuers nor any Affiliate (as defined in Rule
501(b) of Regulation D under the Securities Act ("Regulation D")) has
directly, or through any agent (provided that no representation is made as
to the Initial Purchasers or any Person acting on its behalf): (i) sold,
offered for sale, solicited offers to buy or otherwise negotiated in
respect of any "security" (as defined in the Securities Act) which sale,
offer, solicitation or negotiation is or will be integrated with the sale
of the Securities in a manner that would require the registration under the
Securities Act of the Securities or (ii) engaged in any form of general
solicitation or general advertising (as those terms are used in Regulation
D) in connection with the offering of the Securities.
-13-
(mm) When the Securities are delivered pursuant to this Agreement,
none of the Securities will be of the same class (within the meaning of
Rule 144A under the Securities Act) as securities of the Issuers or any of
their respective subsidiaries that are listed on a national securities
exchange registered under Section 6 of the Exchange Act or that are quoted
in a United States automated inter-dealer quotation system.
(nn) None of the Issuers or any of their respective Affiliates (as
defined in Rule 501(b) of Regulation D), nor any person acting on behalf of
any of them (other than the Initial Purchasers) (i) has, within the
six-month period prior to the date hereof, offered or sold in the United
States or to any U.S. person (as such terms are defined in Regulation S
under the Securities Act ("Regulation S")) the Securities or any security
of the same class or series as the Securities (A) in the United States by
means of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act or (B) with respect to any
such securities sold in reliance on Rule 903 of Regulation S, by means of
any directed selling efforts within the meaning of Rule 902(b) of
Regulation S. The Issuers and their respective affiliates, and any person
acting on behalf of any of them (other than the Initial Purchasers) have
complied and will comply with the offering restrictions requirement of
Regulation S. The Issuers have not entered and will not enter into any
contractual arrangement with respect to the distribution of the Securities
except for this Agreement and the Registration Rights Agreement, to the
extent each is party thereto.
(oo) Since December 31, 2004, except as set forth in the Final
Offering Memorandum (i) both before and after giving effect to the
Transactions, there has been no material adverse change or any development
involving a prospective material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs, management or business
prospects of the Issuers, whether or not arising in the ordinary course of
business, (ii) none of the Issuers, nor any of their respective
subsidiaries has incurred any liability or obligation, direct or indirect,
absolute or contingent, other than in the ordinary course of business,
which would, singly or in the aggregate, have a Material Adverse Effect,
(iii)with the exception of the Support Agreement, neither any of the
Issuers nor any of their respective subsidiaries has entered into any
material transaction other than in the ordinary course of business and (iv)
there has not been any change in the capital stock or long-term debt of any
of the Issuers or any of their respective subsidiaries, or any dividend or
distribution of any kind declared, paid or made by any of the Issuers or
any of their respective subsidiaries on any class of its capital stock.
2. Purchase and Resale of the Securities.
(a) On the basis of the representations, warranties and agreements
contained herein, and subject to the terms and conditions set forth herein, the
Company agrees to issue and sell to the Initial Purchasers, and each of the
Initial Purchasers agrees, severally and
-14-
not jointly, to purchase from the Company, the aggregate principal amount of
Notes set forth opposite its name in Schedule 1 hereto at a purchase price equal
to 97.25% of the principal amount thereof. No Issuer shall be obligated to
deliver any of the Notes except upon payment for all of the Notes to be
purchased from the Issuers as provided herein.
(b) The Initial Purchasers have advised the Issuers that they propose to
offer the Securities for resale upon the terms and subject to the conditions set
forth herein and in the Final Offering Memorandum. Each Initial Purchaser,
severally and not jointly, represents and warrants to, and agrees with, the
Issuers that (i) it is purchasing the Securities pursuant to a private sale
exemption from registration under the Securities Act, (ii) it has not solicited
offers for, or offered or sold, and will not solicit offers for, or offer or
sell, the Securities by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) of Regulation D or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities
Act and (iii) it has solicited and will solicit offers for the Securities only
from, and has offered or sold and will offer, sell or deliver the Securities, as
part of its initial offering, only (A) within the United States to persons whom
it reasonably believes to be qualified institutional buyers ("Qualified
Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule
144A"), or if any such person is buying for one or more institutional accounts
for which such person is acting as fiduciary or agent, only when such person has
represented to it that each such account is a Qualified Institutional Buyer to
whom notice has been given that such sale or delivery is being made in reliance
on Rule 144A and in each case, in transactions in accordance with Rule 144A and
(B) outside the United States to persons other than U.S. persons in reliance on
Regulation S.
(c) In connection with the offer and sale of Securities in reliance on
Regulation S, each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) The Securities have not been registered under the Securities Act
and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except pursuant to an exemption from,
or in transactions not subject to, the registration requirements of the
Securities Act.
(ii) The Initial Purchasers have offered and sold the Securities, and
will offer and sell the Securities, (A) as part of their distribution at
any time and (B) otherwise until 40 days after the later of the
commencement of the offering of the Securities and the Closing Date, only
in accordance with Regulation S or Rule 144A or any other available
exemption from registration under the Securities Act.
(iii) Neither of the Initial Purchasers nor any of their respective
affiliates nor any other person acting on their behalf has engaged or will
engage in any directed selling efforts (as defined in Regulation S) with
respect to the Securities, and all such persons have complied and will
comply with the offering restrictions requirement of Regulation S.
-15-
(iv) At or prior to the confirmation of sale of any Securities sold in
reliance on Regulation S, the Initial Purchasers will have sent to each
distributor, dealer or other person receiving a selling concession, fee or
other remuneration that purchases Securities from them during the
restricted period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and may not
be offered or sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of their distribution at any
time or (ii) otherwise until 40 days after the later of the
commencement of the offering of the Securities and the date of
original issuance of the Securities, except in accordance with
Regulation S or Rule 144A or any other available exemption from
registration under the Securities Act. Terms used above have the
meanings given to them by Regulation S."
(v) The Initial Purchasers have not and will not enter into any
contractual arrangement with any distributor with respect to the
distribution of the Securities, except with their affiliates or with the
prior written consent of the Issuers.
Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) Each Initial Purchaser, severally and not jointly, agrees that, prior
to or simultaneously with the confirmation of sale by such Initial Purchaser to
any purchaser of any of the Securities purchased by such Initial Purchaser from
the applicable Issuers pursuant hereto, such Initial Purchaser shall furnish to
that purchaser a copy of the Final Offering Memorandum (and any amendment or
supplement thereto that the Issuers shall have furnished to such Initial
Purchaser prior to the date of such confirmation of sale), but excluding any
document incorporated by reference therein. In addition to the foregoing, each
Initial Purchaser, severally and not jointly, acknowledges and agrees that the
Issuers and, for purposes of the opinions to be delivered to the Initial
Purchasers pursuant to Sections 5(d) and 5(e), counsel for the Issuers and for
the Initial Purchasers, respectively, may rely upon the accuracy of the
representations and warranties of each Initial Purchaser and their compliance
with their agreements contained in this Section 2, and each Initial Purchaser
hereby consents to such reliance.
(e) The Issuers acknowledge and agree that each Initial Purchaser may sell
Securities to any affiliate of such Initial Purchaser and that any such
affiliate may sell Securities purchased by it to such Initial Purchaser.
(f) Each Initial Purchaser, severally and not jointly, agrees that:
-16-
(i) it has not offered or sold and, prior to the date six months after
the Closing Date, will not offer or sell any Securities to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the public in
the United Kingdom within the meaning of the United Kingdom Public Offers
of Securities Regulations 1995 (as amended);
(ii) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or inducement
to engage in investment activity (within the meaning of Section 21 of the
United Kingdom Financial Services and Markets Act 2000 (the "FSMA"))
received by it in connection with the issue or sale of any Securities in
circumstances in which Section 21(1) of the FSMA does not apply to the
Issuers; and
(iii) it has complied and will comply with all applicable provisions
of the FSMA with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom.
3. Delivery of and Payment for the Securities. (a) Delivery of and payment
for the Securities shall be made at the offices of Weil, Gotshal & Xxxxxx LLP,
Dallas, Texas or at such other place as shall be agreed upon by the Initial
Purchasers and the Issuers, at 9:00 A.M., Dallas time, on March 30, 2005, or at
such other time or date, not later than seven full business days thereafter, as
shall be agreed upon by the Initial Purchasers and the Issuers (such date and
time of payment and delivery being referred to herein as the "Closing Date").
(b) On the Closing Date, payment of the purchase price for the Securities
shall be made to the Company by wire or book-entry transfer of same-day funds to
such account or accounts as the Company shall specify prior to the Closing Date
or by such other means as the parties hereto shall agree prior to the Closing
Date against delivery to the Initial Purchasers of the certificates evidencing
the Securities. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligations
of each Initial Purchaser hereunder. Upon delivery, the Securities shall be in
global form, registered in such names and in such denominations as the Initial
Purchasers shall have requested in writing not less than two full business days
prior to the Closing Date. The Issuers agree to make one or more global
certificates evidencing the Securities available for inspection by the Initial
Purchasers in New York, New York at least 24 hours prior to the Closing Date.
4. Further Agreements of the Issuers. The Issuers, jointly and severally,
agree with each Initial Purchaser:
-17-
(a) to advise the Initial Purchasers promptly and, if requested,
confirm such advice in writing, of the happening of any event which makes
any statement of a material fact made in the Preliminary Offering
Memorandum or the Final Offering Memorandum untrue or which requires the
making of any additions to or changes in the Preliminary Offering
Memorandum or the Final Offering Memorandum (as amended or supplemented
from time to time) in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; to advise the
Initial Purchasers promptly of any order preventing or suspending the use
of the Preliminary Offering Memorandum or the Final Offering Memorandum, of
any suspension of the qualification of the Securities for offering or sale
in any jurisdiction and of the initiation or threatening of any proceeding
for any such purpose; and to use their reasonable best efforts to prevent
the issuance of any such order preventing or suspending the use of the
Preliminary Offering Memorandum or the Final Offering Memorandum or
suspending any such qualification and, if any such suspension is issued, to
obtain the lifting thereof at the earliest possible time;
(b) to furnish to the Initial Purchasers, without charge, as many
copies of the Preliminary Offering Memorandum and the Final Offering
Memorandum (and any amendments or supplements thereto) as may be reasonably
requested; provided that, in the event of any amendment or supplement to
the Final Offering Memorandum, the Initial Purchasers shall have been given
a reasonable opportunity to comment thereon, and copies thereof shall have
been delivered to the Initial Purchasers reasonably in advance of the
Closing Date;
(c) prior to making any amendment or supplement to the Preliminary
Offering Memorandum or the Final Offering Memorandum, to furnish a copy
thereof to the Initial Purchasers and counsel for the Initial Purchasers
and not to effect any such amendment or supplement to which the Initial
Purchasers shall reasonably object by notice to the Issuers after a
reasonable period of review, which shall not be in any case longer than
five business days after receipt of such copy;
(d) if, at any time prior to completion of the initial resale of the
Securities by the Initial Purchasers, any event shall occur or condition
exist as a result of which it is necessary, in the opinion of counsel for
the Initial Purchasers or counsel for the Issuers, to amend or supplement
the Final Offering Memorandum in order that the Final Offering Memorandum
will not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein necessary in order to make the
statements therein, in the light of the circumstances existing at the time
it is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Final Offering Memorandum to comply with applicable
law, to promptly prepare such amendment or supplement as may be necessary
to correct such untrue statement or
-18-
omission so that the Final Offering Memorandum, as so amended or
supplemented, will comply with applicable law;
(e) for so long as the Securities are outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act,
to furnish to holders of the Securities and prospective purchasers of the
Securities designated by such holders, upon request of such holders or such
prospective purchasers, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act, unless the Company is then
subject to and in compliance with Section 13 or 15(d) of the Exchange Act;
(f) for a period of three years following the Closing Date, to furnish
to the Initial Purchasers copies of any annual reports, quarterly reports
and current reports filed by the Issuers with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
Commission, and such other documents, reports and information as shall be
furnished by the Issuers to the Trustee or to the holders of the Securities
pursuant to the Indenture or the Exchange Act or any rule or regulation of
the Commission thereunder; provided, however, that any reports or
information accepted for filing by the Commission and readily available on
the Internet shall be deemed to have been provided to the Initial
Purchasers;
(g) to use their reasonable best efforts to qualify the Securities for
sale under the state securities or Blue Sky laws of such jurisdictions as
the Initial Purchasers may reasonably designate and to continue such
qualifications in effect for so long as required for the distribution of
the Securities; provided, however, that the Issuers and their respective
subsidiaries shall not be obligated to qualify as a foreign corporation in
any jurisdiction where it is not then qualified or to take any action which
would subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject;
(h) to use their reasonable best efforts to assist the Initial
Purchasers in arranging for the Securities to be designated Private
Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market
securities in accordance with the rules and regulations adopted by the
National Association of Securities Dealers, Inc. ("NASD") relating to
trading in the PORTAL Market and for the Securities to be eligible for
clearance and settlement through The Depository Trust Company ("DTC");
(i) not to, and to cause their affiliates not to, sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security
(as such term is defined in the Securities Act) which could be integrated
with the sale of the Securities in a manner which would require
registration of the Securities under the Securities Act;
-19-
(j) except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may
be, not to, and to cause its affiliates (as such term is defined in Rule
501(B) of Regulation D) not to, and not to authorize or knowingly permit
any person acting on their behalf to, (i) solicit any offer to buy or offer
to sell the Securities by means of any form of general solicitation or
general advertising within the meaning of Regulation D or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act or (ii) engage in any directed selling efforts within the
meaning of Regulation S, and all such persons will comply with the offering
restrictions requirement of Regulation S; and not to offer, sell, contract
to sell or otherwise dispose of, directly or indirectly, any securities
under circumstances where such offer, sale, contract or disposition would
cause the exemption afforded by Section 4(2) of the Securities Act to cease
to be applicable to the offering and sale of the Securities as contemplated
by this Agreement and the Final Offering Memorandum;
(k) for a period of 90 days from the date hereof, not to offer for
sale, sell, contract to sell or otherwise dispose of, directly or
indirectly, or file a registration statement (except as required by the
Registration Rights Agreement) for, or announce any offer, sale, contract
for sale of or other disposition of any debt securities issued or
guaranteed by the Issuers or any of their respective subsidiaries (other
than the Securities or the Exchange Securities) without the prior written
consent of X.X. Xxxxxx Securities Inc. (which consent may not be
unreasonably withheld);
(l) until the earlier of (i) the date that all the Notes have either
been exchanged or registered under a shelf registration statement in
accordance with the terms of the Registration Rights Agreement and (ii) two
years after the Closing Date, without the prior written consent of the
Initial Purchasers, not to, and not permit any of their affiliates (as
defined in Rule 144 under the Securities Act) to, resell any of the Notes
that have been reacquired by them, except for Notes purchased by the
Issuers or any of their affiliates and resold in a transaction registered
under the Securities Act;
(m) in connection with the offering of the Securities, until the
Initial Purchasers shall have notified the Issuers of the completion of the
resale of the Securities, not to, and to cause their affiliated purchasers
(as defined in Regulation M under the Exchange Act), not to, either alone
or with one or more other persons, bid for or purchase, for any account in
which they or any of their affiliated purchasers have a beneficial
interest, any Securities, or attempt to induce any person to purchase any
Securities; and not to, and to cause their affiliated purchasers not to,
make bids or purchase for the purpose of creating actual, or apparent,
active trading in or of raising the price of the Securities;
-20-
(n) if less than all of the capital stock of Speedware is acquired in
the Tender Offer, to use their best efforts to acquire or cause to be
acquired any untendered shares as promptly as practicable after the Closing
Date;
(o) not to take any action prior to the Closing Date which would
require the Final Offering Memorandum to be amended or supplemented
pursuant to Section 4(d); and
(p) to apply the net proceeds from the sale of the Securities as set
forth in the Final Offering Memorandum under the heading "Use of proceeds."
5. Conditions to Closing. The obligations of the Initial Purchasers
hereunder are subject to the accuracy, on and as of the date hereof and the
Closing Date, of the representations and warranties of the Issuers contained
herein, to the accuracy of the statements of the Issuers and their officers made
in any certificates delivered pursuant hereto, to the performance by the Issuers
of their obligations hereunder, and to each of the following additional terms
and conditions:
(a) The Final Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchasers as promptly as practicable on or following the date of this
Agreement or at such other date and time as to which the Initial Purchasers
may designate; and no stop order suspending the sale of the Securities in
any jurisdiction shall have been issued and no proceeding for that purpose
shall have been commenced or shall be pending or threatened.
(b) The Initial Purchasers shall not have discovered and disclosed to
the Company on or prior to the Closing Date that the Final Offering
Memorandum or any amendment or supplement thereto contains an untrue
statement of a fact which is material or omits to state any fact which, in
the opinion of counsel to the Initial Purchasers, is material and is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of the Transaction Documents, the
Preliminary Offering Memorandum and the Final Offering Memorandum, and all
other legal matters relating to the Transaction Documents and the
transactions contemplated thereby, shall be reasonably satisfactory in all
material respects to the Initial Purchasers, and the Issuers shall have
furnished to the Initial Purchasers all documents and information that they
or their counsel may reasonably request to enable them to pass upon such
matters, it being agreed that the form of the Support Agreement as executed
is satisfactory to the Initial Purchasers.
-21-
(d) Weil, Gotshal & Xxxxxx LLP shall have furnished to the Initial
Purchasers their written opinion, as counsel for the Issuers, addressed to
the Initial Purchasers and dated the Closing Date, substantially to the
effect set forth in Annex B hereto.
(e) The Initial Purchasers shall have received from Xxxxxx Xxxxxx &
Xxxxxxx LLP, counsel for the Initial Purchasers, such opinion or opinions,
dated the Closing Date, with respect to such matters as the Initial
Purchasers may reasonably require, and the Issuers shall have furnished to
such counsel such documents, certificates and information as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(f) With respect to the letters (the "Initial Letters") of Ernst &
Young LLP and KPMG LLP delivered by each of them to the Initial Purchasers
concurrently with the execution of this Agreement (which letters shall be
in form and substance reasonably satisfactory to the Initial Purchasers and
counsel for the Initial Purchasers), the Issuers shall have caused each of
Ernst & Young LLP and KPMG LLP to furnish to the Initial Purchasers a
letter (the "Bring-Down Letter") addressed to the Initial Purchasers and
dated the Closing Date (i) confirming that they are independent public
accountants with respect to the Company and its subsidiaries and Speedware
and its subsidiaries, as the case may be, within the meaning of Rule 101 of
the Code of Professional Conduct of the AICPA and its interpretations and
rulings thereunder, (ii) stating, as of the date of the Bring-Down Letter
(or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in
the Final Offering Memorandum, as of a date not more than two business days
prior to the date of the Bring-Down Letter), that the conclusions and
findings of such accountants with respect to the financial information and
other matters covered by its Initial Letter are accurate and (iii)
confirming in all material respects the conclusions and findings set forth
in its Initial Letter.
(g) Each of the Issuers shall have furnished to the Initial Purchasers
a certificate, dated the Closing Date, of a senior executive officer of
such Issuer (acting in his or her capacity as an officer of such Issuer and
not as an individual) stating that (A) such officer has reviewed the Final
Offering Memorandum, (B) in his or her opinion, the Final Offering
Memorandum, as of its date, did not include any untrue statement of a
material fact and did not omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and since the date of the Final
Offering Memorandum, no event has occurred which should have been set forth
in a supplement or amendment to the Final Offering Memorandum so that the
Final Offering Memorandum (as so amended or supplemented) would not include
any untrue statement of a material fact and would not omit to state a
material fact necessary in order to make the statements therein, in
-22-
the light of the circumstances under which they were made, not misleading
and (C) to the best of his or her knowledge, as of the Closing Date, the
representations and warranties of such Issuer in this Agreement are true
and correct in all material respects (it being agreed and understood that
in making such representations and warranties on the Closing Date as to
Speedware and its subsidiaries, the certificate may expressly state that
the Issuers are making such representations and warranties in reliance on
the representations and warranties made by Speedware to the Issuers and
their affiliates in the Support Agreement), such Issuer has complied in all
material respects with all agreements and satisfied in all material
respects all conditions on its part to be performed or satisfied hereunder
on or prior to the Closing Date in all material respects, and since the
date hereof or subsequent to the date of the most recent financial
statements of the Company contained in the Final Offering Memorandum, there
has been no material adverse change in the financial position or results of
operations of the Issuers, their respective subsidiaries and Speedware and
its respective subsidiaries taken as a whole, or any material change, or
any development including a prospective material change in or affecting the
condition (financial or otherwise), results of operations, business or
prospects of the Issuers, their respective subsidiaries and Speedware and
its respective subsidiaries taken as a whole, except as set forth in the
Final Offering Memorandum.
(h) The Initial Purchasers shall have received on and as of the
Closing Date satisfactory evidence of the good standing of the Company and
its subsidiaries and Speedware and its subsidiaries in their respective
jurisdictions of organization and, as applicable, their good standing in
the jurisdictions listed on Schedule III hereto, in each case in writing or
any standard form of telecommunication, from the appropriate governmental
authorities of such jurisdictions.
(i) The Initial Purchasers shall have received a counterpart of the
Registration Rights Agreement which shall have been executed and delivered
by a duly authorized officer of each Issuer.
(j) The Indenture shall have been duly executed and delivered by the
Issuers and the Trustee, the Notes shall have been duly executed and
delivered by the Company and duly authenticated by the Trustee and the
Guarantees shall have been duly executed and delivered by the Guarantors.
(k) The Credit Agreement Amendment shall be in full force and effect.
(l) The Support Agreement shall be in full force and effect.
(m) The Company shall have received and accepted tenders representing
not less than 66 2/3% of the outstanding capital stock of Speedware and
shall purchase all shares of capital stock of Speedware validly tendered
pursuant to the Tender Offer.
-23-
(n) If any event shall have occurred that requires the Issuers under
Section 4(d) to prepare an amendment or supplement to the Final Offering
Memorandum, such amendment or supplement shall have been prepared, the
Initial Purchasers shall have been given a reasonable opportunity to
comment thereon, and copies thereof shall have been delivered to the
Initial Purchasers reasonably in advance of the Closing Date.
(o) There shall not have occurred any invalidation of Rule 144A under
the Securities Act by any court or any withdrawal or proposed withdrawal of
any rule or regulation under the Securities Act or the Exchange Act by the
Commission or any amendment or proposed amendment thereof by the Commission
which in the judgment of the Initial Purchasers would materially impair the
ability of the Initial Purchasers to purchase, hold or effect resales of
the Securities as contemplated hereby.
(p) Other than as contemplated by the Transactions or the Final
Offering Memorandum, since the dates (both before and after the
Transactions) as of which information is given in the Final Offering
Memorandum (exclusive of any amendment or supplement to the Final Offering
Memorandum on or after the date of the Final Offering Memorandum), there
shall not have been any change in the capital stock or long-term debt or
any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), results of operations,
business or prospects of the Issuers and their respective subsidiaries
taken as a whole, the effect of which, in any such case described above,
is, in the judgment of the Initial Purchasers, so material and adverse as
to make it impracticable or inadvisable to proceed with the sale or
delivery of the Securities on the terms and in the manner contemplated in
the Final Offering Memorandum (exclusive of any amendment or supplement
thereto).
(q) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance or
sale of the Securities; and no injunction, restraining order or order of
any other nature by any federal or state court of competent jurisdiction
shall have been issued as of the Closing Date which would prevent the
issuance, sale or resale of the Securities.
(r) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the ratings accorded the Securities or
any of the Issuers' other debt securities or preferred stock by any
"nationally recognized statistical rating organization," as such term is
defined by the Commission for purposes of Rule 436(g)(2) of the rules and
regulations of the Commission under the Securities Act and (ii) no such
organization shall have publicly announced that it has under surveillance
or review or changed its outlook with respect to its rating of the
Securities or any of the Issuers' other debt securities or preferred stock
(other than an announcement with positive implications of a possible
upgrading).
-24-
(s) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or
the over-the-counter market shall have been suspended or limited, or
minimum prices shall have been established on any such exchange or market
by the Commission, by any such exchange or by any other regulatory body or
governmental authority having jurisdiction, or trading in any securities of
the Company on any exchange or in the over-the-counter market shall have
been suspended or (ii) any moratorium on commercial banking activities
shall have been declared by federal or New York state authorities or (iii)
an outbreak or escalation of hostilities or a declaration by the United
States of a national emergency or war or any calamity or crisis or (iv) a
material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) the effect of which, in the
case of this clause (iv), is, in the judgment of the Initial Purchasers, so
material and adverse as to make it impracticable or inadvisable to proceed
with the offering, sale or the delivery of the Securities on the terms and
in the manner contemplated by this Agreement and in the Final Offering
Memorandum (exclusive of any amendment or supplement thereto).
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
6. Termination. The obligations of the Initial Purchasers hereunder may be
terminated by the Initial Purchasers, in their absolute discretion, by notice
given to and received by the Issuers prior to delivery of and payment for the
Securities if, prior to that time, the event described in Section 5(m) shall not
have occurred and any of the events described in Sections 5(n), 5(o), 5(p),
5(q), 5(r) and 5(s) shall have occurred and be continuing. The obligations of
the Issuers hereunder may be terminated by the Company by notice given and
received by the Initial Purchasers prior to delivery of payment for the
Securities if, prior to that time, the event described in Section 5(m) shall not
have occurred.
7. Reimbursement of Initial Purchasers' Expenses. If (a) this Agreement
shall have been terminated pursuant to Section 6, (b) the Issuers shall fail to
tender the Securities for delivery to the Initial Purchasers or (c) the Initial
Purchasers shall decline to purchase the Securities for any reason permitted
under this Agreement, the Issuers shall, jointly and severally, reimburse the
Initial Purchasers for such out-of-pocket expenses (including reasonable fees
and disbursements of counsel) as shall have been reasonably incurred by the
Initial Purchasers in connection with this Agreement and the proposed purchase
or resale of the Securities.
8. Indemnification.
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(a) The Issuers shall, jointly and severally, indemnify and hold
harmless the Initial Purchasers, their affiliates, their respective
officers, directors, employees, representatives, partners and agents, and
each person, if any, who controls either of the Initial Purchasers or any
affiliate within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 8(a) and Section 9
as the Initial Purchasers), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including,
without limitation, any loss, claim, damage, liability or action relating
to purchases and sales of the Securities), to which the Initial Purchasers
may become subject, whether commenced or threatened, under the Securities
Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Final Offering Memorandum or in any
amendment or supplement thereto or in any information provided by the
Issuers pursuant to Section 4(d) or (ii) the omission or alleged omission
to state therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and shall reimburse the Initial Purchasers promptly upon demand
for any legal or other expenses reasonably incurred by the Initial
Purchasers in connection with investigating or defending or preparing to
defend against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Issuers shall not be liable in any
such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with any Initial Purchasers'
Information; and provided, further, however, that with respect to any such
untrue statement in or omission from the Preliminary Offering Memorandum or
the Final Offering Memorandum, the indemnity agreement contained in this
Section 8(a) shall not inure to the benefit of the Initial Purchasers to
the extent that such sale to the person asserting any such loss, claim,
damage, liability or action was an initial resale by the Initial Purchasers
and any such loss, claim, damage, liability or action of or with respect to
the Initial Purchasers results from the fact that both (A) to the extent
required by applicable law a copy of the Final Offering Memorandum or any
correcting amendments or supplements thereto, as applicable, but excluding
the documents incorporated by reference therein, was not sent or given to
such person at or prior to the written confirmation of the sale of such
Securities to such person and (B) the untrue statement in or omission from
the Preliminary Offering Memorandum or the Final Offering Memorandum, was
corrected in the Final Offering Memorandum or an amendment or supplement to
the Final Offering Memorandum and the Final Offering Memorandum (as amended
or supplemented) does not contain any other untrue statement or omission or
alleged untrue statement or omission of a material fact unless, in either
case, such failure to deliver the Final Offering Memorandum (as
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amended or supplemented) was a result of non-compliance by the Issuers with
Section 4(b).
(b) Each Initial Purchaser, severally and not jointly, shall indemnify
and hold harmless the Issuers, their affiliates, their respective officers,
directors, employees, representatives, partners and agents, and each
person, if any, who controls the Issuers or any such affiliate within the
meaning of the Securities Act or the Exchange Act (collectively referred to
for purposes of this Section 8(b) and Section 9 as the Issuers), from and
against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Issuers may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act, any
other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Offering
Memorandum or the Final Offering Memorandum or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state
therein a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, but in each of clause (i) and (ii) of this Section 8(b) only to
the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with any Initial Purchaser's Information provided by such Initial
Purchaser, and shall reimburse the Issuers for any legal or other expenses
reasonably incurred by the Issuers in connection with investigating or
defending or preparing to defend against or appearing as a third party
witness in connection with any such loss, claim, damage, liability or
action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 8(a) or 8(b), notify the
indemnifying party in writing of such claim or the commencement of such
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 8 except to the extent that the indemnifying party was otherwise
unaware of such claim or the commencement of such action and it has been
materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and, provided further, however, that the failure
to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section
8. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to
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the indemnified party of its election to assume the defense of such claim
or action, the indemnifying party shall not be liable to the indemnified
party under this Section 8 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof
other than reasonable costs of investigation; provided, however, that an
indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel for
the indemnified party will be at the expense of such indemnified party
unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified party
has reasonably concluded (based upon advice of counsel to the indemnified
party) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict
exists (based upon advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases
the reasonable fees, disbursements and other charges of counsel will be at
the expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the
reasonable fees, disbursements and other charges of more than one separate
firm of attorneys (in addition to any local counsel) at any one time for
all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 8(a) and 8(b),
shall use all reasonable efforts to cooperate with the indemnifying party
in the defense of any such action or claim. No indemnifying party shall be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled
with its written consent or if there be a final judgment for the plaintiff
in any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without
the prior written consent of the indemnified party (which consent shall not
be unreasonably withheld), effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release
of such indemnified party in form and substance satisfactory to such
indemnified party from all liability on claims that are the subject matter
of such proceeding.
The obligations of the Issuers and the Initial Purchasers in this Section 8
and in Section 9 are in addition to any other liability that the Issuers or the
Initial Purchasers, as the
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case may be, may otherwise have, including in respect of any breaches of
representations, warranties and agreements made herein by any such party.
9. Contribution. If the indemnification provided for in Section 8 is
unavailable or insufficient to hold harmless an indemnified party under Section
8(a) or 8(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Issuers on the one hand and the Initial Purchasers on
the other from the offering of the Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Issuers on the one hand and the Initial
Purchasers on the other with respect to the statements or omissions that
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Issuers on the one hand and the Initial Purchasers on the other
with respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Securities purchased under this
Agreement (before deducting expenses) received by or on behalf of the Issuers,
on the one hand, and the total discounts and commissions received by the Initial
Purchasers with respect to the Securities purchased under this Agreement, on the
other, bear to the total gross proceeds from the sale of the Securities under
this Agreement. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to the
Issuers or information supplied by the Issuers on the one hand or to any Initial
Purchasers' Information on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Issuers and the Initial Purchasers agree
that it would not be just and equitable if contributions pursuant to this
Section 9 were to be determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 9 shall be deemed to include, for purposes of this Section
9, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating, preparing to defend or defending any such action
or claim. Notwithstanding the provisions of this Section 9, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total discounts and commissions received by such Initial Purchaser with respect
to the Securities purchased by it under this Agreement exceeds the amount of any
damages which such Initial Purchaser has otherwise paid or become liable to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
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10. Defaulting Initial Purchaser.
(a) If, on the Closing Date, any Initial Purchaser defaults on its
obligation to purchase the Securities that it has agreed to purchase
hereunder, the non-defaulting Initial Purchaser may in its discretion
arrange for the purchase of such Securities by other persons satisfactory
to the Issuers on the terms contained in this Agreement. If, within 36
hours after any such default by any Initial Purchaser, the non-defaulting
Initial Purchaser does not arrange for the purchase of such Securities,
then the Issuers shall be entitled to a further period of 36 hours within
which to procure other persons reasonable satisfactory to the
non-defaulting Initial Purchaser to purchase such Securities on such terms.
If other persons become obligated or agree to purchase the Securities of a
defaulting Initial Purchaser, either the non-defaulting Initial Purchaser
or the Issuers may postpone the Closing Date for up to five full business
days in order to effect any changes that in the opinion of counsel for the
Issuers or counsel for the Initial Purchasers may be necessary in the Final
Offering Memorandum or in any other document or arrangement, and the
Issuers agree to promptly prepare any amendment or supplement to the Final
Offering Memorandum that effects any such changes. As used in this
Agreement, the term "Initial Purchaser" includes, for all purposes of this
Agreement unless the context otherwise requires, any person not listed in
Schedule 1 hereto that, pursuant to this Section 10, purchases Securities
that a defaulting Initial Purchaser agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Initial Purchaser by the non-defaulting
Initial Purchaser and the Issuers as provided in paragraph (a) above, the
aggregate principal amount of such Securities that remains unpurchased does
not exceed one-eleventh of the aggregate principal amount of all the
Securities, then the Issuers shall have the right to require the
non-defaulting Initial Purchaser to purchase the principal amount of
Securities that such Initial Purchaser agreed to purchase hereunder plus
such Initial Purchaser's pro rata share (based on the principal amount of
Securities that such Initial Purchaser agreed to purchase hereunder) of the
Securities of such defaulting Initial Purchaser for which such arrangements
have not been made.
(c) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Initial Purchaser by the non-defaulting
Initial Purchaser and the Issuers as provided in paragraph (a) above, the
aggregate principal amount of such Securities that remains unpurchased
exceeds one-eleventh of the aggregate principal amount of all the
Securities, or if the Issuers shall not exercise the right described in
paragraph (b) above, then this Agreement shall terminate without liability
on the part of the non-defaulting Initial Purchaser. Any termination of
this Agreement pursuant to this Section 10 shall be without liability on
the part of the Issuers, except that the Issuers will continue to be liable
for the payment of expenses as set forth in Section 12
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hereof and except that the provisions of Section 7 hereof shall not
terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Issuers or the non-defaulting
Initial Purchaser for damages caused by its default.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the Initial Purchasers and the Issuers and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except as provided in Sections 8
and 9 with respect to affiliates, officers, directors, employees,
representatives, partners, agents and controlling persons of the Issuers and the
Initial Purchasers and affiliates of the Initial Purchasers and in Section 4(e)
with respect to holders and prospective purchasers of the Securities. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 11, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
12. Expenses. Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Issuers agree
with the Initial Purchasers to pay (a) the costs incident to the authorization,
issuance, sale, preparation and delivery of the Securities and any taxes payable
in that connection; (b) the costs incident to the preparation, printing and
distribution of the Preliminary Offering Memorandum and the Final Offering
Memorandum and any amendments or supplements thereto; (c) the costs of
reproducing and distributing each of the Transaction Documents; (d) the costs
incident to the preparation, printing and delivery of the certificates
evidencing the Securities, including stamp duties and transfer taxes, if any,
payable upon issuance of the Securities; (e) the fees and expenses of the
Issuers' counsel and independent accountants; (f) the fees and expenses of
qualifying the Securities under the securities laws of the several jurisdictions
as provided in Section 4(g) and of preparing, printing and distributing Blue Sky
Memoranda (including related fees and expenses of one counsel for the Initial
Purchasers in an amount not to exceed $10,000); (g) any fees charged by rating
agencies for rating the Securities; (h) the fees and expenses of the Trustee and
any paying agent (including related fees and expenses of any counsel to such
parties); (i) all expenses and application fees incurred in connection with the
application for the inclusion of the Securities on the PORTAL Market and the
approval of the Securities for book-entry transfer by DTC; and (j) all other
costs and expenses incident to the performance of the obligations of the Issuers
under this Agreement which are not otherwise specifically provided for in this
Section 12; provided, however, that except as provided in this Section 12 and
Section 7, the Initial Purchasers shall pay their own costs and expenses
(including the costs and expenses of their counsel).
13. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Issuers and the Initial
Purchasers contained in this
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Agreement or any certificates delivered pursuant hereto made by or on behalf of
the Issuers or the Initial Purchasers pursuant to this Agreement shall survive
the delivery of and payment for the Securities and shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement or
any investigation made by or on behalf of any of them.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent by mail
or telecopy transmission to the Initial Purchasers c/o X.X. Xxxxxx
Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx X. Xxxxx (telecopier no.: (000) 000-0000); or
(b) if to the Issuers, shall be delivered or sent by mail or telecopy
transmission to the address of the Issuers at Activant Solutions Inc., 000
Xxx Xxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000, Attention: Xxxx Xxxxxxxx
(telecopier no: (000) 000-0000), with a copy to Hicks, Muse, Xxxx & Xxxxx
Incorporated, 000 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
Attention: Xxxxx Xxxxxxx (telecopier no: (000) 000-0000);
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Issuers shall be entitled to act and rely upon any
request, consent, notice or agreement given or made by the Initial Purchasers.
15. Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 under the Securities Act.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
conflicts of law provisions thereof to the extent the application of the laws of
another jurisdiction would be required thereby.
17. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
18. Amendments. No amendment or waiver of any provision of this Agreement,
nor any consent or approval to any departure therefrom, shall in any event be
effective unless the same shall be in writing and signed by the parties hereto.
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19. Headings. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[Remainder of page intentionally left blank]
S-1
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us a counterpart hereof, whereupon this instrument
will become a binding agreement between the Issuers and the Initial Purchasers
in accordance with its terms.
Very truly yours,
ACTIVANT SOLUTIONS INC.
By:
--------------------------------
Name:
Title:
TRIAD SYSTEMS FINANCIAL CORPORATION
TRIAD DATA CORPORATION
CCI/TRIAD GEM, INC.
TRIAD SYSTEMS CORPORATION
CCI/ARD, INC.
By:
--------------------------------
Name:
Title:
S-2
Accepted by:
X.X. XXXXXX SECURITIES INC.
for itself and on behalf of the several
Initial Purchasers listed on Schedule I hereto
By:
---------------------------------------
Authorized Signatory
SCHEDULE I
Aggregate Principal Interest
Initial Purchaser of Securities to be Purchased
----------------- -----------------------------
X.X. Xxxxxx Securities Inc. $ 60,000,000
Deutsche Bank Securities Inc. $ 60,000,000
------------
Total $120,000,000
SCHEDULE II
Guarantors
-----------------------------------------------------------
Triad Systems Financial Corporation (CA)
Triad Data Corporation (CA)
CCI/Triad GEM, Inc. (TX)
Triad Systems Corporation (DE)
CCI/ARD, Inc. (DE)
SCHEDULE III
Applicable Jurisdiction for Good Standing Certificates
-----------------------------------------------------------
Illinois
North Carolina
California
Texas
Florida
New York
Minnesota
Pennsylvania
Ohio
ANNEX A
[Form of Registration Rights Agreement]
[See attached]
ANNEX B
[Form of Opinion of Weil, Gotshal & Xxxxxx LLP]
[See attached]
