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EXHIBIT 4.4
Tyler Technologies, Inc.
2800 West Mockingbird Lane
Dallas, Texas 75235
Purchase Agreement
$10,001,400 in Shares of Common Stock
(the "Shares")
May l9, 2000
To the Purchasers of the
above Shares listed in
Schedule 1 hereto:
Gentlemen:
Tyler Technologies, Inc., a Delaware corporation (the "Company"),
hereby agrees with you as follows:
1. AUTHORIZATION OF COMMON STOCK. The Company will authorize the issue
and sale of up to $10,001,400 in shares (the "Shares") of Common Stock, $0.01
par value (the "Common Stock"), of the Company, at the Stock Purchase Price.
Certain capitalized terms used in this Agreement are defined in Section 11.
2. PURCHASE AND SALE OF COMMON STOCK. The Company will issue and sell
to you and, subject to the terms and conditions of this Agreement, you will
purchase from the Company, at the Closing provided for in Section 3, the
aggregate number of shares of Common Stock specified opposite your name in the
Schedule of Purchasers, in each case at a purchase equal to the lesser of (i)
$3.00 per share or (ii) 80% of the average closing price for shares of Common
Stock on the New York Stock Exchange for the 20 Trading Days prior to Closing
(the "Stock Purchase Price").
3. CLOSING. The sale of the Common Stock to be purchased by you will
take place at the offices of Sanders Morris Harris Inc., 3100 Chase Tower,
Houston, Texas 77002, at 10:00 a.m., Houston Time, at a closing (the "Closing")
on May 18, 2000, or on such other business day thereafter as may be agreed upon
by the Company and you.
Within five Business Days following the Closing, the Company will
deliver to you the Shares purchased by you at such Closing in the form of one
certificate (or such greater number of certificates as you may request), each
dated the date of the Closing and registered in your name (or in the name of
your nominee as indicated on the Schedule of Purchasers or otherwise made known
in writing by you to the Company prior to the Closing), against delivery by you
to the Company or its order of immediately available funds in the amount of the
purchase price therefor.
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4. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to you that:
4.1. ORGANIZATION, QUALIFICATION, STANDING, CAPITAL STOCK,
SUBSIDIARIES, ETC. The Company has been duly organized and is validly existing
and in good standing as a corporation under the laws of the State of Delaware,
and each of its Subsidiaries is a corporation duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its incorporation or
organization, with power and authority (corporate and other) to own or lease its
properties and to conduct its business as described in the Memorandum; the
Company and each Subsidiary is duly qualified to do business and in good
standing as a foreign corporation in all other jurisdictions in which its
ownership or leasing of properties, or the conduct of its business requires or
may require such qualification where the failure to be so qualified would have a
Material Adverse Effect; the Company and each Subsidiary is in possession of and
operating in compliance in all material respects with all franchises, grants,
authorizations, licenses, permits, easements, consents, certificates, and orders
required for the conduct of their business as described in the Memorandum, where
the failure to possess or comply therewith would have a Material Adverse Effect.
The authorized capital stock of the Company consists of 100,000,000 shares of
Common Stock, $0.01 par value per share, of which 43,290,687 shares were issued
and outstanding at March 31, 2000, and 1,000,000 shares of Preferred Stock,
$10.00 par value per share, none of which shares of Preferred Stock were issued
and outstanding at the Closing Date. All of such outstanding shares have been
validly issued and are fully paid and nonassessable. The Company has reserved
6,300,000 shares of Common Stock for issuance pursuant to options and warrants
outstanding at March 31, 2000. Except as set forth on Schedule 4.1, there are
not outstanding, nor is the Company subject to any agreement, arrangement, or
understanding under which there may become outstanding, any option, warrant, or
other right to purchase or subscribe to, or security convertible into or
exchangeable for, any shares of capital stock of any class of the Company. The
Company's Subsidiaries are identified in Exhibit 21 of the Form 10-K and such
Exhibit correctly states the jurisdiction of organization and the extent of the
Company's ownership of outstanding voting securities of each such Subsidiary.
All such voting securities are owned by the Company free and clear of any liens,
claims or encumbrances of any nature, except for the lien of Bank of America,
N.A. under the Company's Revolving Credit Agreement.
4.2 FINANCIAL STATEMENTS, SUBSEQUENT CHANGES, ETC. The Form 10-K, one
or more copies of which have been furnished to you, contains consolidated
balance sheets of the Company and its consolidated Subsidiaries, and the
consolidated statements of income, stockholders' equity, and cash flows of the
Company and its consolidated Subsidiaries for each of the three years ended
December 31, 1998, including notes thereto, and the opinion of Ernst & Young
LLP, independent certified public accountants with respect to such financial
statements. All of the foregoing financial statements are complete and correct
in all material respects and fairly present in all material respects the
consolidated financial condition of the Company and its consolidated
Subsidiaries at the respective dates of said balance sheets and the consolidated
results of operations of the Company and its consolidated Subsidiaries for the
respective periods covered thereby. Such financial statements have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise noted
therein). There were no material liabilities, direct or indirect, fixed or
contingent, of the Company and its consolidated Subsidiaries as of the
respective dates of such balance sheets that are not reflected therein or in the
notes thereto. Except as disclosed in the Memorandum, there has been no material
change in the consolidated condition, financial or otherwise, or operations of
the Company and its consolidated Subsidiaries since December 31,
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1999, nor has the Company or any Subsidiaries, except for the execution,
delivery, and performance of this Agreement, incurred any Indebtedness for
borrowed money, incurred any material liability, contingent or otherwise, except
in the ordinary course of business (including acquisitions of business and
assets), or entered into any material commitment or other transaction not in the
ordinary course of business since such date.
4.3. OTHER INFORMATION AS TO COMPANY. The Confidential Private
Placement Memorandum dated April 19, 2000, together with the Exhibits thereto
and the documents incorporated by reference therein (the "Memorandum"), does not
contain any misstatement of a material fact or omit to state any material fact
necessary to be stated therein or necessary in order to make the statements
therein not misleading; provided, however, that with respect to all projections
and estimates furnished to you, the Company represents and warrants only that
the same were prepared in good faith and based, to the best of its knowledge,
upon reasonable assumptions and that nothing has occurred, which has caused or
may cause any projection or estimate to be or to become inaccurate in any
material adverse respect as of the date hereof. In the event the Company has
furnished to you information which corrects information previously furnished,
the information last furnished is deemed to govern for purposes of this Section
4.3.
4.4. LITIGATION. Except as disclosed in the Memorandum, there are no
legal or governmental proceedings pending to which the Company or any Subsidiary
is a party or of which any of their properties are the subject, which, if
determined adversely to the Company or its Subsidiaries would individually or in
the aggregate result in a Material Adverse Effect; and, to the best knowledge of
the Company after due inquiry, no such proceedings are threatened, except as set
forth in the Memorandum.
4.5. FRANCHISES, LICENSES, TRADEMARKS, ETC. The Company and the
Subsidiaries have all material franchises, permits, licenses and other authority
as are necessary to enable it to conduct its business as now conducted and as
proposed to be conducted, and to the best of the Company's knowledge, neither
the Company nor any Subsidiary is in material default under any such franchises,
permits, licenses or other authority. To the best knowledge of the Company, the
Company and its Subsidiaries own (or have made appropriate application for) or
have the right to use all trademarks, trademark rights, trade names, trade name
rights, copyrights, and similar intangible assets or rights that are material to
their business (collectively "Intellectual Property"). The Company has no
knowledge of any adverse claim or facts that could give rise to a claim, which
creates a reasonable doubt as to the ownership or validity of the Intellectual
Property. No Governmental Body has rendered any opinion, decision, or judgment
that could limit, cancel, or question the validity of any of the Intellectual
Property. To the Company's knowledge, no other intellectual property is
necessary to enable the Company to conduct its business substantially as
currently conducted or as proposed to be conducted. The Company is not obligated
or under any liability whatsoever to make any material payments in the nature of
royalties, license fees, or otherwise to any owner of, licensee of, or other
claimant to, any Intellectual Property. The Company has no knowledge of
intellectual property owned by others that is used by the Company in the conduct
of its business as currently conducted or as proposed to be conducted without
valid license or other form of arrangement. To the knowledge of the Company, the
continued use of the Intellectual property by the Company will not constitute an
infringement, misappropriation, or misuse of any patent, trademark, trade name,
copyright, invention, trade secret, proprietary information, nondisclosure, or
other rights of any third party. No person has filed, or to the knowledge of the
Company, threatened any claim before a Governmental Body regarding the use of,
or challenging the validity or effectiveness of the Intellectual Property or
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any license, contract, or commitment relating thereto, and the Company knows of
no valid basis for any such claim. To the Company's knowledge, all material
trade secrets, know how, and other trademarked, or copyrighted material has at
all times been kept confidential by the Company, its employees, and agents so as
to protectable under common law principles.
4.6. DUE AUTHORIZATION AND COMPLIANCE WITH OTHER INSTRUMENTS. This
Agreement is, and the Shares when issued and delivered will be, valid and
legally binding obligations of the Company and the Shares will be entitled to
the benefits of this Agreement. The Shares to be issued to you hereunder have
been duly authorized and when issued will be validly issued, fully paid and
nonassessable. The Shares are not subject to any preemptive or similar rights on
the part of holders of shares of capital stock of the Company.
4.7. BURDENSOME AND CONFLICTING AGREEMENTS AND VIOLATIONS OF CHARTER
Provisions. Neither the Company nor any Subsidiary is currently bound by any
agreement or instrument or subject to any charter or other corporate restriction
that materially and adversely affects its business, properties, operations, or
condition, financial or otherwise. The Company is not in violation of its
articles of incorporation or by-laws, or in material default, or with the giving
of notice or lapse of time or both, would be in material default, in the
performance of any material obligation, agreement, or condition contained in any
lease license, material contract, indenture, or loan agreement or in any bond,
debenture, note, or other evidence of indebtedness, except as set forth in the
Memorandum and except for such defaults as would not have a Material Adverse
Effect. Neither the authorization, execution, and delivery of this Agreement or
the issuance of the Shares, the consummation of the transactions herein and
therein contemplated, nor the fulfillment of or compliance with the terms hereof
and thereof, will conflict with or result in a breach of any of the terms of the
articles of incorporation or by-laws, or any material loan agreement, mortgage,
deed of trust, indenture, or other agreement or instrument to which the Company
or any Subsidiary is a party or by which the Company or any Subsidiary is bound,
except to the extent that the same have been, or prior to the Closing Date will
be, waived or cured, or, to the best knowledge of the Company, any law, statute,
order, rule, administrative regulation, or decree of any court, or governmental
agency or body having jurisdiction over the Company, its Subsidiaries, or their
properties, which conflict, default, or breach individually or in the aggregate
could reasonably be expected to result in a Material Adverse Effect.
4.8. CONSENTS AND APPROVALS. To the best knowledge of the Company, no
consent, approval, authorization or order of any Governmental Body is required
for the consummation by the Company of the transactions contemplated by this
Agreement, except such as may be required by the National Association of
Securities Dealers, Inc., the Securities Act, or the Rules and Regulations or
state securities or Blue Sky laws. The Company has obtained or made all
necessary consents, approvals, waivers and notifications of stockholders,
creditors, lessors and other non-governmental persons, in each case, in
connection with the execution of this Agreement and the issuance of the Shares
except for securities law filings that will be made after the Closing.
4.9. TAX RETURNS AND PAYMENTS. The Company and its Subsidiaries have
filed all United States federal, state, county, local and foreign national,
provincial and local returns and reports which were required to be filed on or
prior to the date herein in respect of all income, withholding, franchise,
payroll, excise, property, sales, use, value-added or other taxes or levies,
imposts, duties, license and registration fees, charges, assessments or
withholdings of any nature whatsoever (together, "Taxes"), and has paid all
Taxes (and any related penalties, fines and
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interest) which have become due pursuant to such returns or reports or pursuant
to any assessment which has become payable, or, to the extent its liability for
any Taxes (and any related penalties, fines and interest) has not been fully
discharged, adequate reserves therefor have been established, except where the
failure to do so would not have a Material Adverse Effect. All such returns and
reports filed on or prior to the date hereof have been properly prepared and are
true, correct (and to the extent such returns reflect judgments made by the
Company, such judgments were reasonable under the circumstances) and complete in
all material respects, except where the failure to do so would not have a
Material Adverse Effect. The charges, accruals and reserves on the books of the
Company with respect to taxes for all fiscal periods are adequate, in the
opinion of the Company, and the Company does not know of any actual or proposed
tax assessment for any fiscal period or of any basis therefor against which
adequate reserves have not been set up. The Company has not been advised that
any federal income tax return of the Company has been, or will be, examined or
audited by the Internal Revenue Service.
4.10. OFFERING OF THE SHARES. Neither the Company nor anyone authorized
to act on its behalf has or will directly or indirectly sell or offer the Shares
or any part thereof or any similar securities to, or solicit any offer to buy
any thereof from, any Person so as to cause a violation of the Securities Act.
In connection with the offering of the Shares, the Company has agreed to pay the
Placement Agent a fee equal to 7% of the gross proceeds to the Company from the
sale of the Shares.
4.11. OUTSTANDING REGISTRATION Rights. Except as described in Schedule
4.11 hereto or in the Memorandum, the Company is not a party to any contract or
agreement pursuant to which any other party or parties thereto have the right to
require the Company (on a best efforts basis or otherwise) (a) to register
securities of the Company under the Securities Act for sale by or on behalf of
such party or parties or (b) to notify such party or parties of the Company's
intention to file a registration statement under the Securities Act and at the
request of such party or parties to include therein securities of the Company
for sale by or on behalf of such party or parties.
4.12. EXCHANGE ACT DOCUMENTS. The Common Stock is registered pursuant
to Section 12(b) of the Exchange Act and is listed on the New York Stock
Exchange. All Exchange Act reports and statements required to be filed by the
Company under the Exchange Act, and the rules and regulations thereunder, due at
or prior to the date of this Agreement have been made. Each Exchange Act
Document conformed in all material respects at the time of its filing to the
requirements of the Exchange Act and the rules and regulations thereunder, and
no Exchange Act document includes any untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
4.13. OTHER ADVERSE FACTS, ETC. To the best of the Company's knowledge,
there are no existing facts or circumstances which materially and adversely
affect, or (insofar as the Company can now reasonably foresee) in the future may
materially and adversely affect, the business, results of operations or
condition, financial or otherwise, of the Company and the Subsidiaries, on a
consolidated basis, which are not disclosed in the Form 10-K, other Exchange Act
Documents filed with the SEC pursuant to the Exchange Act, or in this Agreement
or any exhibit hereto, the Memorandum, or which are required to be disclosed by
the Company in an Exchange Act Document.
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5. CONDITIONS PRECEDENT.
5.1. CLOSING. Your obligation to purchase from the Company the number
of Shares specified opposite your name in the Schedule of Purchasers at the
Closing shall be subject to the following conditions precedent:
(a) OPINIONS OF COMPANY COUNSEL. You shall have received from
Gardere & Wynne, LLP, counsel for the Company, an opinion, dated the
Closing Date, satisfactory in form and substance to the Placement
Agent.
(b) REPRESENTATIONS AND DEFAULTS. The representations and
warranties made by the Company herein shall be true and correct in all
material respects on and as of the Closing Date with the same effects
as if they had been made on and as of the Closing Date (except as to
any changes resulting from transactions expressly reflected herein or
contemplated hereby) and no Event of Default as defined in Section 10
hereof, nor any condition or event which, after notice or lapse of
time, or both, would constitute such an Event of Default, shall exist;
and the Company shall deliver to you on the Closing Date a certificate
of the President and the Treasurer of the Company to the foregoing
effects.
(c) DOCUMENTS. All proceedings to be taken in connection with
the transactions contemplated by this Agreement to be consummated at or
prior to the Closing Date, and all documents incident thereto, shall be
satisfactory in form and substance to the Placement Agent shall have
received original counterparts or certified or other copies of all
documents which you may have reasonably requested in connection with
said transactions and of all corporate proceedings in connection
therewith, in form and substance satisfactory to the Placement Agent.
(d) MINIMUM OFFERING. The Company shall have received
commitments for the purchase of a minimum of $5,000,000 in Shares.
(e) NO MATERIAL ADVERSE CHANGE. As of the date of the Closing,
no Material Adverse Change has occurred.
(f) REGISTRATION RIGHTS AGREEMENT. The Company shall have
entered into the Registration Rights Agreement with the purchasers of
the Shares in the form of Exhibit A hereto.
6. COVENANTS OF THE COMPANY. The Company covenants and agrees that,
except otherwise agreed to by the Placement Agent in writing, as so long as any
of the Shares are outstanding it will comply with the following provisions,
subject to the provisions of Section 12 hereof;
6.1. USE OF PROCEEDS. The Company will apply all of the proceeds (net
of costs directly related to the preparation and negotiation of this Agreement
and the offering and sale of the Shares) derived from the sale of the Shares for
general working capital purposes.
6.2. TAXES. The Company will promptly pay and discharge all lawful
taxes, assessments, and governmental charges or levies imposed on it or upon its
income or profits, or upon any of its properties, real or personal, before the
same shall become in default, as well as all
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lawful claims for labor, materials, and supplies or otherwise which, if unpaid,
might become a lien or charge upon its properties or any part thereof, except
where the failure to do so would not have a Material Adverse Effect; provided,
however, that the Company shall not be required to pay or cause to be paid any
such tax, assessment, charge, levy or claim prior to institution of foreclosure
proceedings if the validity thereof shall be contested in good faith by
appropriate proceedings and if the Company shall have established reserves
deemed by the Company adequate with respect to such tax, assessment, charge,
levy, or claim.
6.3. INSURANCE. The Company will maintain liability, property damage,
and insurance on its insurable property against fire and other hazards with
responsible insurance carriers in the relative proportionate amounts consistent
with the Company's past practice and usually carried by reasonable and prudent
companies conducting businesses similar to that of the Company except where the
failure to do so would not have a Material Adverse Effect.
6.4. MAINTENANCE OF EXISTENCE AND PROPERTIES. The Company will keep its
corporate existence, rights, and franchises in full force and effect. The
Company will comply with all applicable laws and regulations, decrees, orders,
judgments, licenses and permits ("Applicable Laws"), except where noncompliance
with such Applicable Laws would not have a Material Adverse Effect on the
Company.
6.5. FINANCIAL STATEMENTS AND COMPLIANCE CERTIFICATES. The Company will
keep true books of record and account in which full, true and correct entries in
accordance with generally accepted accounting principles will be made of all
dealings or transactions in relation to its business and activities. For a
period of three years after the Closing Date, the Company shall furnish:
(a) to the Placement Agent, as soon as available and in any
event within 47 days after the close of each fiscal quarter (except the
last fiscal quarter of each fiscal year of the Company), commencing
with the fiscal quarter ending March 31, 2000, a consolidated balance
sheet of the Company as of the end of such quarter and consolidated
statements of operations and cash flows of the Company for such quarter
and for the expired portion of the then current fiscal year, setting
forth comparable figures for the same quarter and expired portion of
the previous fiscal year, and prepared and certified by the Chief
Financial Officer of the Company, subject to year-end audit adjustment;
(b) to each holder of the Shares and the Placement Agent, as
soon as available and in any event within 107 days after the close of
each fiscal year of the Company, a balance sheet of the Company as of
the end of such fiscal year and consolidated statements of operations,
stockholders' equity, and cash flows of the Company for such fiscal
year, setting forth comparable figures for the previous fiscal year,
all reported upon, and certified, by independent certified public
accountants of nationally recognized standing;
(c) with each financial statement required to be delivered
pursuant to the provisions of paragraph (b) above, a certificate of the
Chief Financial Officer of the Company stating that to the best of his
knowledge there does not exist any Event of Default or any condition or
event which after notice or lapse of time, or both, would constitute an
Event of Default, or specifying the nature and period of existence of
each such Event of Default, condition or event and the action the
Company is taking or proposed to take with respect thereto; and
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(d) to the Placement Agent, promptly upon transmission
thereof, copies of all financial statements and reports sent by the
Company to its shareholders and of all regular and periodic reports, if
any, filed by it with the Commission pursuant to any statute
administered by the Commission.
Except as and to the extent required by law or by any regulatory authority
having jurisdiction over you, and except for disclosures to prospective
transferees of any of your Shares, you will not willfully disclose to others
information obtained from any such inspection or discussion which the Company
advises you is confidential in nature.
7. REGISTRATION AND TRANSFER OF SHARES. The Company agrees to maintain
an office (or to appoint an agent having an office) in Dallas, Texas, or such
other city as the Company may designate by notice in writing to you, at which
Shares may be surrendered for transfer and reissuance, for exchange,
replacement, conversion, or cancellation. The Company shall keep or cause to be
kept, at the office or agency so maintained, a register or registers in which
the Company or its agent shall register the names and addresses of the holders
of the Shares and shall transfer registered Shares in accordance with this
Agreement. Upon surrender for transfer of any registered Shares duly assigned by
the registered holder (or its duly authorized attorney) to the transferee(s)
thereof and subject to satisfaction of the requirements set forth in Section 9.4
hereof if such Shares are then Restricted Shares, the Company shall execute and
deliver a new registered certificates for the Shares. No service charge shall be
assessed for any transfer, registration, reissuance, exchange, conversion, or
notation of payment hereunder.
8. SUBSTITUTION OF SHARE CERTIFICATE. Upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction, or mutilation of
any certificate for Shares, and of indemnity satisfactory to it (which, in the
case of any original purchaser of the Shares, shall be a contractual obligation
of such purchaser) and upon surrender, at the office or agency maintained in
accordance with Section 8 hereof, and cancellation of any Shares, if mutilated,
the Company will execute and deliver a new certificate of like tenor, in lieu of
such certificate.
9. SECURITIES ACT.
9.1. INVESTMENT INTENT, ETC. Each of you and each other Person who has
been designated by you as a registered holder to whom Shares will be initially
issued on the Closing Date, by acceptance of such Shares, represent and in
making this sale it is specifically understood and agreed that you and each such
other Person are (i) "accredited investors" as defined in Rule 502 of Regulation
D under the Securities Act, and (ii) acquiring the Shares to be purchased for
your, or such Person's, own account, and not with a view to or for sale in
connection with any distribution thereof, provided that the disposition of your,
or such Person's, property shall at all times be and remain within your, or such
Person's, control.
9.2. RESTRICTIONS ON TRANSFERABILITY. The Shares shall not be
transferable except upon the conditions specified in this Section 9, which
conditions are intended to ensure compliance with the provisions of the
Securities Act in respect of the transfer of any Security.
9.3. RESTRICTIVE LEGENDS. Each certificate for Common Stock and each
certificate for Common Stock issued to a subsequent transferee shall (unless
otherwise permitted by the
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provisions of Section 9.4 hereof) be stamped or otherwise imprinted with a
legend in substantially the following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933 or any state securities
act. The shares have been acquired for investment and may not be sold,
transferred, pledged or hypothecated unless (i) they shall have been
registered under the Securities Act of 1933 and any applicable state
securities act, or (ii) the corporation shall have been furnished with
an opinion of counsel, satisfactory to counsel for the corporation,
that registration is not required under any such acts."
9.4. NOTICE OF PROPOSED TRANSFERS. Except as otherwise provided in
paragraph (b) of this Section 9.4, prior to any transfer or attempted transfer
of any Restricted Stock, the holder thereof shall give written notice to the
Company of such holder's intention to effect such transfer. Each such notice
shall describe the manner and circumstances of the proposed transfer and shall
be accompanied by an opinion of counsel for such holder satisfactory to the
Company, to the effect that such transfer may be effected without registration
of such Restricted Stock, under the Securities Act. If such notice is
accompanied by such an opinion, such holder shall be entitled to transfer such
security in conformity with the terms of such notice, and, if the opinion of
counsel so specifies, the securities issued upon any such transfer shall not
bear the restrictive legend set forth in Section 9.3.
10. EVENTS OF DEFAULT. If any one or more of the following
events (herein called "Events of Default") shall occur and be
continuing:
(a) default shall be made in the due performance or observance
of any other material covenant, agreement, or provision herein to be
performed or observed by the Company or a breach shall exist in any
material representation or warranty herein contained, and such default
or breach is material and shall have continued for a period of 90 days
after written notice thereof to the Company from any holder or holders
of Shares aggregating not less than 5% of the aggregate number of the
Shares then outstanding;
(b) the Company shall (i) apply for or consent to the
appointment of a receiver, trustee, or liquidator of the Company or any
of its assets, (ii) make a general assignment for the benefit of
creditors, (iii) be adjudicated a bankrupt or insolvent or (iv) file a
voluntary petition in bankruptcy, or a petition or answer seeking
reorganization to take advantage of any bankruptcy, reorganization,
insolvency, moratorium, dissolution, liquidation, or debtor relief law,
or any chapter of any such law, or an answer admitting the material
allegations of a petition filed against it in any proceeding under any
such law or chapter, or corporate action shall be taken by the Company
for the purpose of effecting any of the foregoing; or an order,
judgment, or decree shall be entered, without the application,
approval, or consent of the Company, by any court of competent
jurisdiction, approving a petition seeking liquidation or
reorganization of the Company or of all or a substantial part of the
assets of the Company;
(c) default shall occur with respect to any indebtedness for
borrowed money of the Company or under any agreement under which such
indebtedness may be issued by the Company and such default shall
continue for more than the period of grace, if any, therein specified,
if the aggregate amount of all such indebtedness for which such default
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shall have occurred exceeds $1,000,000 and, if not already matured in
accordance with its terms, such default shall result in the
acceleration of such indebtedness, and such default shall have
continued for a period of 90 days after written notice thereof to the
Company from any holder or holders of Shares aggregating not less than
5% of the aggregate number of the Shares then outstanding; provided,
however, that if such default shall be remedied or cured by the
Company, or waived by the holders of such indebtedness, then the Event
of Default hereunder by reason thereof shall be deemed likewise to have
been thereupon remedied, cured, or waived without further action upon
the part of and holders of the Shares; or
(d) final judgment for the payment of money in excess of
$1,000,000 shall be rendered against the Company and the same shall
remain undischarged for a period of 90 days during which execution
shall not be effectively stayed by appeal, posting of a bond, or
agreement of the parties thereto.
11. DEFINITIONS.
"Affiliates" of any Person shall mean any Person directly or indirectly
controlling, controlled by or under direct or indirect common control with such
Person. A Person shall be deemed to control a corporation if such Person
possesses, directly or indirectly, the power to direct or cause the direction of
the management and policies of such corporation, whether through the ownership
of voting securities, by contract or otherwise. Each director, executive
officer, and holder of 5% or more of and class of the outstanding voting
securities of the Company shall be deemed to be an "Affiliate" of the Company.
"Business Day" shall mean any day that the New York Stock Exchange is
open for trading.
"Closing" shall have the meaning given such term in Section 3 hereof.
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Company's Common Stock, $0.01 par value
per share.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Act Documents" shall mean all reports and statements required
to be filed by the Company with the Securities and Exchange Commission under the
Exchange Act, together with all documents incorporated by reference therein or
attached as exhibits thereto.
"Event of Default" shall have the meaning given such term in Section
10.
"Form 10-K" shall mean the Company's Annual Report on Form 10-K for the
year ended December 31, 1999.
"Governmental Body" shall mean any Federal, state, municipal, or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign.
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"Material Adverse Change" shall mean any single circumstance or event
(or series of circumstances or events) having a Material Adverse Effect.
"Material Adverse Effect" shall mean any material adverse effect on the
financial condition or business operations of the Company and its Subsidiaries,
taken as a whole.
"Memorandum" shall mean the Confidential Offering Memorandum dated
April 19, 2000, with respect to the offering of the Shares.
"Person" shall mean and include an individual, a partnership, a
corporation, a trust, a joint venture, an unincorporated organization, a
government or any department or agency thereof, and any other entity.
"Placement Agent" shall mean Sanders Morris Harris, Inc., a Texas
corporation.
"Restricted Stock" shall mean shares of Common Stock issued or issuable
pursuant to this Agreement and evidenced by a certificate bearing the
restrictive legend set forth in Section 9.3 hereof.
"SEC" shall mean the Securities and Exchange Commission.
"Shares" shall mean the shares of Common Stock issued or issuable
pursuant to this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Stock Purchase Price" shall mean the lesser of (i) $5.00 per share or
(ii) 80% of the average closing price for shares of the Common Stock on the New
York Stock Exchange for the 20 Trading Days prior to Closing.
"Subsidiary" shall mean any Person of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50% of the shares of voting stock of such
Person.
"Trading Day" shall mean a day that the New York Stock Exchange is open
for trading.
12. WAIVERS; MODIFICATIONS OF AGREEMENT. Any provision in this
Agreement to the contrary notwithstanding, changes in or additions to this
Agreement may be made, and compliance with any covenant or condition herein set
forth may be omitted, if the Company (a) shall obtain from the holders of record
of Shares aggregating not less than 66-2/3% of the number of the Shares at the
time outstanding their consent thereto in writing and (b) shall deliver copies
of such consent in writing to any such holders of record who did not execute the
same; provided, however, that without the consent in writing of all holder of
the Shares purchased pursuant to this Agreement, no such consent shall reduce
the percentage of the number of the Shares the consent of the holders of which
shall be required under this Section 12.
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13. SURVIVAL OF COVENANTS, ETC. All covenants, agreements,
representations, and warranties made herein and in any certificate delivered
pursuant hereto shall survive any investigation made by you and the execution
and delivery to you of the Shares to be purchased by you and your payment
therefor and continue for two years.
14. BROKERS; ISSUANCE TAXES. The Company will hold you free and
harmless from any claim, demand, liability for, or expense in connection with,
any brokers' or finders' fees or commissions claimed by any Person acting on
behalf of the Company in connection with this Agreement or the transactions
contemplated herein and taxes (excluding federal income taxes), if any, payable
upon, or on account of, issuance of the Shares.
15. GOVERNING LAW. This Agreement and the Shares are being delivered in
the State of Texas and shall be governed by and construed according to the laws
of the State of Texas.
16. NOTICES. Any notice, consent, request, or other communication
required or permitted hereunder shall be in writing and shall be deemed given
when either (a) personally delivered to the intended recipient or (b) sent and
delivered, by certified or registered mail, return-receipt requested, addressed
to the intended recipient as follows:
if to the Company, to Tyler Technologies, Inc.
2800 West Mockingbird Lane
Dallas, Texas 75235
Attention: Theodore Bathurst;
if to any of you, to Sanders Morris Harris
3100 Chase Tower
Houston, Texas 77002
Attention: Charles L. Davis
; if to any other holder of Shares to the address of such holder set forth on
Schedule 1 or given to the Company in accordance with Section 9; and if to any
other holder of Restricted Stock, to the address of such holder as set forth in
the stock transfer records of the Company. Any Person (other than the Company)
may change the address to which notice is to be sent pursuant to the preceding
sentence by giving written notice of such new address to the Company in
accordance with this Section 16. The Company may change the address to which
notice is to be sent hereunder by giving notice of such change, in accordance
with this Section 16, to each Person against whom such change shall be
effective. Any notice mailed as aforesaid shall, unless otherwise provided
herein, be deemed given on the fifth day after deposited in the United States
mail in accordance with the first sentence of this Section 16.
Each of the Purchasers hereby appoints Sanders Morris Harris Inc. as
his, her, or its representative and agent to whom all communications to such
Shareholders may be directed.
17. PARTIES IN INTEREST. All of the terms and provisions of this
Agreement shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Company may not assign or
transfer any of its or your rights or obligations under this Agreement without
your prior written consent and you may not assign or transfer any of
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your rights or obligations under this Agreement without the prior written
consent of the Company.
18. HEADINGS. The headings of the various sections and subsections
hereof have been inserted for convenience of reference only and shall not be
deemed to in any way modify any of the terms or provisions hereof.
19. COUNTERPARTS. This Agreement may be signed by each party hereto
upon a separate copy, in which event all of said copies shall constitute a
single counterpart of this Agreement. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, and it shall not
be necessary in making proof of this Agreement to produce or account for more
than one such counterpart.
If the foregoing is in accordance with your understanding, please sign
the form of confirmation and acceptance on the enclosed counterpart of this
Agreement and return the same to the company, whereupon this Agreement shall be
a binding agreement between you and the Company.
Very truly yours,
TYLER TECHNOLOGIES, INC.
By
--------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
The foregoing Agreement is confirmed and
accepted as of the date first above written.
SANDERS MORRIS HARRIS INC.,
as agent and attorney-in-fact for the
Purchasers listed on Schedule 1
By
-------------------------------------------
Charles L. Davis, Managing Director
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SCHEDULE 1
Schedule of Purchasers
<TABLE>
<CAPTION>
Registered Owner/Address Purchase Price Shares of Common Stock
------------------------ -------------- ----------------------
<S> <C> <C>
</TABLE>
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SCHEDULE 4.11
Outstanding Registration Rights
15
