CUSIP NO. 815680101 Page 1 of 44 Pages
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Seer Technologies, Inc.
(Name of Issuer)
Common Stock, $.01 par value
(Title of Class of Securities)
815680101
(CUSIP Number)
Welsh, Carson, Anderson William J. Hewitt, Esq.
& Stowe Reboul, MacMurray, Hewitt,
320 Park Avenue, Suite 2500 Maynard & Kristol
New York, New York 10022 45 Rockefeller Plaza
Attention: Laura VanBuren New York, New York 10111
Tel. (212) 893-9500 Tel. (212) 841-5700
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 9, 1996
(Date of Event Which Requires
Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d- 1(b)(3) or (4), check the following box [ ].
<PAGE>
CUSIP NO. 815680101 Page 2 of 44 Pages
1) Name of Reporting Person Welsh, Carson, Anderson
S.S. or I.R.S. Identification & Stowe VI, L.P.
No. of Above Person
2) Check the Appropriate Box (a) [X]
if a Member of a Group (b) [ ]
3) SEC Use Only
4) Source of Funds WC
5) Check if Disclosure of
Legal Proceedings Is Not Applicable
Required Pursuant to
Items 2(d) or 2(e)
6) Citizenship or Place
of Organization Delaware
Number of 7) Sole Voting 9,948,695 shares of
Shares Beneficially Power Common Stock
Owned by Each (including shares
Reporting Person: issuable upon
conversion of
convertible pre-
ferred stock)
8) Shared Voting
Power -0-
9) Sole Disposi- 9,948,695 shares of
tive Power Common Stock
(including shares
issuable upon
conversion of
convertible pre-
ferred stock)
10) Shared Dis-
positive Power -0-
<PAGE>
CUSIP NO. 815680101 Page 3 of 44 Pages
11) Aggregate Amount Beneficially 9,948,695 shares of
Owned by Each Reporting Person Common Stock
(including shares
issuable upon
conversion of
convertible pre-
ferred stock
12) Check if the Aggregate
Amount in Row (11)
Excludes Certain Shares
13) Percent of Class
Represented by 63.8%
Amount in Row (11)
14) Type of Reporting
Person PN
<PAGE>
CUSIP NO. 815680101 Page 4 of 44 Pages
1) Name of Reporting Person WCAS Information
S.S. or I.R.S. Identification Partners, L.P.
No. of Above Person
2) Check the Appropriate Box (a) [X]
if a Member of a Group (b) [ ]
3) SEC Use Only
4) Source of Funds WC
5) Check if Disclosure of
Legal Proceedings Is Not Applicable
Required Pursuant to
Items 2(d) or 2(e)
6) Citizenship or Place
of Organization Delaware
Number of 7) Sole Voting 117,984 shares of
Shares Beneficially Power Common Stock
Owned by Each (including shares
Reporting Person: issuable upon
conversion of
convertible pre-
ferred stock)
8) Shared Voting
Power -0-
9) Sole Disposi- 117,984 shares of
tive Power Common Stock
(including shares
issuable upon
conversion of
convertible pre-
ferred stock)
10) Shared Dis-
positive Power -0-
<PAGE>
CUSIP NO. 815680101 Page 5 of 44 Pages
11) Aggregate Amount Beneficially 117,984 shares of
Owned by Each Reporting Person Common Stock
(including shares
issuable upon
conversion of
convertible pre-
ferred stock
12) Check if the Aggregate
Amount in Row (11)
Excludes Certain Shares
13) Percent of Class
Represented by 3.7%
Amount in Row (11)
14) Type of Reporting
Person PN
<PAGE>
CUSIP NO. 815680101 Page 6 of 44 Pages
1) Name of Reporting Person WCAS Capital
S.S. or I.R.S. Identification Partners II, L.P.
No. of Above Person
2) Check the Appropriate Box (a) [X]
if a Member of a Group (b) [ ]
3) SEC Use Only
4) Source of Funds Not Applicable
5) Check if Disclosure of
Legal Proceedings Is Not Applicable
Required Pursuant to
Items 2(d) or 2(e)
6) Citizenship or Place
of Organization Delaware
Number of 7) Sole Voting 446,189 shares of
Shares Beneficially Power Common Stock
Owned by Each
Reporting Person:
8) Shared Voting
Power -0-
9) Sole Disposi- 446,189 shares of
tive Power Common Stock
10) Shared Dis-
positive Power -0-
11) Aggregate Amount Beneficially 446,189 shares of
Owned by Each Reporting Person Common Stock
12) Check if the Aggregate
Amount in Row (11)
Excludes Certain Shares
13) Percent of Class
Represented by 1.0%
Amount in Row (11)
14) Type of Reporting
Person PN
<PAGE>
CUSIP NO. 815680101 Page 7 of 44 Pages
Schedule 13D
Item 1. Security and Issuer.
This statement relates to the Common Stock, $.01 par value
(the "Common Stock"), of Seer Technologies, Inc., a Delaware corporation ("Seer"
or the "Issuer"). The principal executive offices of the Issuer are located at
8000 Regency Parkway, Cary, North Carolina 27511.
Item 2. Identity and Background.
(a) ______ Pursuant to Rule 13d-1(f)(1)-(2) of Regulation
13D-G of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended (the "Act"), the undersigned hereby file this statement on
Schedule 13D on behalf of Welsh, Carson, Anderson & Stowe VI, L.P., a Delaware
limited partnership ("WCAS VI"), WCAS Capital Partners II, L.P., a Delaware
limited partnership ("WCAS CP II") and WCAS Information Partners, L.P., a
Delaware limited partnership ("WCAS IP"). WCAS VI, WCAS CP II and WCAS IP are
sometimes hereinafter referred to as the "Reporting Persons". The Reporting
Persons are making this single, joint filing because they may be deemed to
constitute a "group" within the meaning of Section 13(d)(3) of the Act. The
Agreement among the Reporting Persons to file as a group (the "Group Agreement")
is attached hereto as Exhibit A.
WCAS VI
(b)-(c) WCAS VI is a Delaware limited partnership. The
principal business of WCAS VI is that of a private investment partnership. The
sole general partner of WCAS VI is WCAS VI Partners, L.P., a Delaware limited
partnership ("VI Partners"). The principal business of VI Partners is that of
acting as the general partner of WCAS VI. The principal business and principal
office address of WCAS VI, VI Partners and the general partners of VI Partners
is 320 Park Avenue, Suite 2500, New York, New York 10022. The general partners
of VI Partners are citizens of the United States, and their respective principal
occupations are set forth below.
WCAS CP II
(b)-(c) WCAS CP II is a Delaware limited partnership. The
principal business of WCAS CP II is that of a private investment partnership.
The sole general partner of WCAS CP II is WCAS CP II Partners, a New Jersey
general partnership ("CP II Partners"). The principal business of CP II Partners
<PAGE>
CUSIP NO. 815680101 Page 8 of 44 Pages
is that of acting as the general partner of WCAS CP II. The principal
business and principal office address of WCAS CP II, CP II Partners and the
general partners of CP II Partners is 320 Park Avenue, Suite 2500, New York, New
York 10022. The general partners of CP II Partners are citizens of the United
States, and their respective principal occupations are set forth below.
WCAS IP
(b)-(c) WCAS IP is a Delaware limited partnership. The
principal business of WCAS IP is that of a private investment partnership. The
sole general partner of WCAS IP is WCAS INFO Partners, a Delaware general
partnership ("INFO Partners"). The principal business of INFO Partners is that
of acting as the general partner of WCAS IP. The principal business and
principal office address of WCAS IP, INFO Partners and the general partners of
INFO Partners is 320 Park Avenue, Suite 2500, New York, New York 10022. The
general partners of INFO Partners are citizens of the United States, and their
respective principal occupations are set forth below.
General Partners Occupation
Patrick J. Welsh General Partner, VI Partners and CP II
Partners
Russell L. Carson General Partner, VI Partners and CP II
Partners
Bruce K. Anderson General partner, VI Partners, CP II
Partners and INFO Partners
Richard H. Stowe General Partner, VI Partners and CP II
Partners
Thomas E. McInerney General Partner, VI Partners, CP II
Partners and INFO Partners
Charles G. Moore, III General Partner, CP II Partners
Andrew M. Paul General Partner, VI Partners and CP II
Partners
Laura VanBuren General Partner, VI Partners and CP II
Partners
Robert A. Minicucci General Partner, VI Partners and CP II
Partners
<PAGE>
CUSIP NO. 815680101 Page 9 of 44 Pages
Anthony J. deNicola General Partner, VI Partners and CP II
Partners
Paul B. Queally General Partner, VI Partners
(d) ______ None of the entities or persons identified in this
Item 2 has, during the last five years, been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors).
(e) None of the entities or persons identified in this Item 2
has, during the last five years, been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds and Other Consideration.
On August 8, 1996, in recognition of the additional financial
risk assumed by WCAS VI in its capacity as a stockholder of the Issuer by giving
certain guaranties with respect to certain loans made to the Issuer, 75,000
shares of Common Stock were issued by the Issuer to WCAS VI.
On August 9, 1996, WCAS VI and WCAS IP purchased 1,978,643
shares and 23,643 shares, respectively, of Series A Convertible Preferred Stock
from the Issuer pursuant to a Preferred Stock Purchase Agreement dated as of
August 9, 1996, among the Issuer, WCAS VI and the several other purchasers named
in Schedule I thereto (the "Series A Purchase Agreement"). The Series A Purchase
Agreement is attached hereto as Exhibit B, and any description thereof is
qualified in its entirety by reference thereto. The purchase price per share was
$5.969, and each share of Series A Convertible Preferred Stock is convertible
into Common Stock on a one-for-one basis. The source of funds for such purchase
was the working capital, or funds available for investment, of WCAS VI and WCAS
IP.
On April 27, 1998, WCAS VI and WCAS IP purchased 1,664,920
shares and 19,895 shares, respectively, of Series B Convertible Preferred Stock
from the Issuer pursuant to a Preferred Stock Purchase Agreement dated as of
August 9, 1996, among the Issuer, WCAS VI and the several other purchasers named
in Schedule I thereto (the "Series B Purchase Agreement"). The Series B Purchase
Agreement is attached hereto as Exhibit C, and any description thereof is
<PAGE>
CUSIP NO. 815680101 Page 10 of 44 Pages
qualified in its entirety by reference thereto. The purchase price per
share was $2.8375, and each share of Series B Convertible Preferred Stock is
convertible into Common Stock on a one-for-one basis. The source of funds for
such purchase was the working capital, or funds available for investment, of
WCAS VI and WCAS IP.
Item 4. Purpose of Transaction.
Other than as described in Item 3 above, the Reporting Persons
have acquired securities of the Issuer for investment purposes.
Item 5. Interest in Securities of the Issuer.
The following information is based on a total of 11,950,633
shares of Common Stock outstanding as of June 16, 1998, as reported in the
Issuer's report on Form 10-Q/A for the quarter ended March 31, 1998, as filed on
June 17, 1998, and gives effect to the conversion of all shares of Series A
Convertible Preferred Stock and Series B Convertible Preferred Stock held by the
persons named below:
(a)
WCAS VI and VI Partners
WCAS VI owns 9,948,695 shares of Common Stock, or approximately 63.8%
of the Common Stock outstanding. VI Partners, as the general partner of
WCAS VI, may be deemed to beneficially own the securities owned by WCAS VI.
WCAS CP II and CP II Partners
WCAS CP II owns 446,189 shares of Common Stock, or approximately 3.7%
of the Common Stock outstanding. CP II Partners, as the general partner of
WCAS CP II, may be deemed to beneficially own the securities owned by WCAS
CP II.
WCAS IP and INFO Partners
WCAS IP owns 117,984 shares of Common Stock, or approximately 1.0% of
the Common Stock outstanding. INFO Partners, as the general partner of WCAS
IP, may be deemed to beneficially own the securities owned by WCAS IP.
<PAGE>
CUSIP NO. 815680101 Page 11 of 44 Pages
General Partners of VI Partners, CP II Partners and
INFO Partners
(i) ______ Patrick J. Welsh owns directly 59,014 shares of Common
Stock and indirectly, in three trusts for the benefit of his minor
children, 25,278 shares of Common Stock, or, in the aggregate,
approximately 0.7% of the Common Stock outstanding.
(ii) Russell L. Carson owns 84,271 shares of Common Stock, or
approximately 0.7% of the Common Stock outstanding.
(iii) Bruce K. Anderson owns 89,271 shares of Common Stock, or
approximately 0.8% of the Common Stock outstanding.
(iv) Richard H. Stowe owns 33,703 shares of Common Stock (including
shares held by DE Charter Trust Co. as Trustee FBO the IRA/Rollover of
Richard H. Stowe), or approximately 0.3% of the Common Stock outstanding.
(v) Andrew M. Paul owns 23,223 shares of Common Stock, or
approximately 0.2% of the Common Stock outstanding.
(vi) Thomas E. McInerney owns 17,854 shares of Common Stock, or
approximately 0.2% of the Common Stock outstanding.
(vii) Laura VanBuren owns 3,369 shares of Common Stock, or less than
0.1% of the Common Stock outstanding.
(ix) Robert A. Minicucci owns 42,135 shares of Common Stock, or
approximately 0.4% of the Common Stock outstanding.
(x) Anthony J. deNicola owns 5,052 shares of Common Stock, or less
than 0.1% of the Common Stock outstanding.
(b) The general partners of each of VI Partners, CP II
Partners and INFO Partners may be deemed to share the power to vote or direct
the voting of and to dispose or direct the disposition of the securities of the
Issuer owned by WCAS VI, WCAS CP II and WCAS IP, respectively. Each of the
general partners of VI Partners, CP II Partners and INFO Partners disclaims
beneficial ownership of all securities other than the shares he or she owns
directly or by virtue of his or her indirect pro rata interest, as a partner of
VI Partners, CP II
<PAGE>
CUSIP NO. 815680101 Page 12 of 44 Pages
Partners and/or INFO Partners, as the case may be, in the shares owned by WCAS
VI, WCAS CP II and/or WCAS IP.
(c) Except as described in this statement, none of the
entities or persons named in Item 2 has effected any transaction in the Issuer's
securities in the past 60 days.
(d) Except as described in this statement, no person
has the power to direct the receipt of dividends on or the proceeds of sales of
the shares owned by WCAS VI, WCAS CP II or WCAS IP.
(e) Not Applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities
of the Issuer.
Pursuant to the terms of the Series A Purchase Agreement and
the Series B Purchase Agreement, the Issuer has granted certain rights to
registration under the Securities Act of 1933, as amended, to the Reporting
Persons with respect to the Common Stock owned by the Reporting Persons,
including the shares of Common Stock issuable upon conversion of the Series A
Convertible Preferred Stock and Series B Convertible Preferred Stock.
Item 7. Material to Be Filed as Exhibits.
Exhibit A - Group Agreement (Appears at Page 14)
Exhibit B - Series A Purchase Agreement (Appears at
Page 15)
Exhibit C - Series B Purchase Agreement (Appears at
Page 30)
<PAGE>
CUSIP NO. 815680101 Page 13 of 44 Pages
Signature
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: July 15, 1998
WELSH, CARSON, ANDERSON & STOWE VI, L.P.
By: WCAS VI Partners, L.P., General Partner
By: /s/ Laura Van Buren
General Partner
WCAS INFORMATION PARTNERS, L.P.
By: WCAS INFO Partners, General Partner
By: /s/ Laura VanBuren
Attorney-in-Fact
WCAS CAPITAL PARTNERS II, L.P.
By: WCAS CP II Partners, General Partner
By: /s/ Laura VanBuren
General Partner
<PAGE>
CUSIP No. 051629103 Page 14 of 44 Pages
EXHIBIT A
AGREEMENT
OF
WELSH, CARSON, ANDERSON & STOWE VI, L.P.,
WCAS INFORMATION PARTNERS, L.P.
AND
WCAS CAPITAL PARTNERS II, L.P.
Pursuant to Rule 13d-1(f)
The undersigned hereby agree that the Statement on Schedule
13D to which this Agreement is annexed as Exhibit A is filed on behalf of each
of them in accordance with the provisions of Rule 13d-1(f) under the Securities
Exchange Act of 1934, as amended.
Dated: July 15, 1998
WELSH, CARSON, ANDERSON & STOWE VI, L.P.
By: WCAS VI Partners, L.P., General Partner
By: /s/ Laura Van Buren
General Partner
WCAS INFORMATION PARTNERS, L.P.
By: WCAS INFO Partners, General Partner
By: /s/ Laura VanBuren
Attorney-in-Fact
WCAS CAPITAL PARTNERS II, L.P.
By: WCAS CP II Partners, General Partner
By: /s/ Laura VanBuren
General Partner
<PAGE>
CUSIP No. 051629103 Page 15 of 44 Pages
EXHIBIT B
PREFERRED STOCK PURCHASE AGREEMENT, dated as of August 9, 1996, among
SEER TECHNOLOGIES, INC., a Delaware corporation (the "Company"), WELSH, CARSON,
ANDERSON & STOWE VI, L.P., a Delaware limited partnership ("WCAS VI"), and the
several other purchasers named in Schedule I hereto (such other purchasers
together with WCAS VI being herein referred to individually as a "Purchaser" and
collectively as the "Purchasers").
WHEREAS, after giving effect to the filing of a Certificate of
Designation of the Company in the form annexed hereto as Exhibit A (the
"Certificate of Designation"), the Company shall designate shares of Series A
Convertible Preferred Stock ("Series A Preferred Stock") from the Company's
authorized 10,000,000 shares of Preferred Stock, par value $.01 per share (the
"Preferred Stock");
WHEREAS, the Company wishes to issue and sell to the Purchasers shares
of Series A Preferred Stock for the aggregate purchase price of $12,500,000 (the
"Purchase Price"); and
WHEREAS, the Purchasers wish to purchase said shares of Series A
Preferred Stock, all on the terms and subject to the conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereby agree as follows:
I.
PURCHASE AND SALE OF SHARES
SECTION 1.01 Issuance, Sale and Delivery of the Shares. (a) On the
Closing Date (as defined below), the Company shall issue and sell to each
Purchaser, and each Purchaser shall purchase from the Company, the number of
authorized but unissued shares of Series A Preferred Stock, rounded to the
nearest whole share (said aggregate shares being purchased by the Purchasers
being herein collectively called the "Shares"), obtained by dividing the amount
set forth opposite the name of such Purchaser in Schedule I hereto under the
heading "Purchase Price", by the Average Share Price (as defined below), and the
Company shall issue and deliver to each Purchaser stock certificates in
definitive form, registered in the name of such Purchaser, representing the
Shares being purchased by such Purchaser hereunder.
(b) The price per Share to be paid by each Purchaser on the
Closing Date (the "Average Share Price") shall be determined by taking the
average of the last reported sales price per share of Common Stock, par value
$.01 per share ("Common Stock"), of the Company quoted by the National
Association of Securities Dealers Automated Quotation System for the twenty (20)
consecutive trading days beginning on July 11, 1996.
<PAGE>
CUSIP No. 051629103 Page 16 of 44 Pages
(c) As payment in full for the Shares being purchased by each
Purchaser hereunder, and against delivery of the stock certificates therefor as
aforesaid, on the Closing Date each Purchaser shall wire transfer to the account
of the Company in immediately available funds the sum set forth opposite the
name of such Purchaser in Schedule I hereto under the heading "Purchase Price".
SECTION 1.02 Closing Date. The closing of the sale and purchase of the
Shares shall take place at the offices of Reboul, MacMurray, Hewitt, Maynard &
Kristol, 45 Rockefeller Plaza, New York, New York, at 10 a.m., New York time, on
the date that is the next business day after the determination of the Average
Share Price, or at such other date and time as may be mutually agreed upon
between WCAS VI and the Company (such date and time of closing being herein
called the "Closing Date").
II.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchasers as follows:
SECTION 2.01 Organization, Qualifications and Corporate Power. The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is duly licensed or
qualified to transact business as a foreign corporation and is in good standing
in each jurisdiction in which the nature of its business or the ownership of its
properties makes such licensing or qualification necessary, except where the
failure to be so licensed or qualified would not have a material adverse effect
on the operations or financial condition of the Company. The Company has the
corporate power and authority to own and hold its properties and to carry on its
business as currently conducted, to execute, deliver and perform this Agreement
and to issue, sell and deliver the Shares.
SECTION 2.02 Authorization of Agreements, Etc. (a) The execution and
delivery by the Company of this Agreement and the performance by the Company of
its obligations hereunder have been duly authorized by all requisite corporate
action and will not violate any provision of law, any order of any court or
other agency of government, the Certificate of Incorporation or By-laws of the
Company, or any provision of any indenture, agreement or other instrument by
which the Company or any of its subsidiaries or any of their respective
properties or assets is bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets of the Company or any of its subsidiaries.
(b) The Shares have been duly authorized and designated, and when
issued in accordance with the terms of this Agreement, will be validly issued,
<PAGE>
No. 051629103 Page 17 of 44 Pages
fully paid and nonassessable shares of Series A Preferred Stock. The
issuance, sale and delivery of the Shares are not subject to any preemptive
rights of stockholders of the Company or to any right of first refusal or other
similar right in favor of any person.
SECTION 2.03 Validity. This Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable in accordance with its terms.
SECTION 2.04 Authorized Capital Stock. On the date hereof, the
authorized capital stock of the Company consists of 30,000,000 shares of Common
Stock and 10,000,000 shares of Preferred Stock. After giving effect to the
filing of the Certificate of Designation, a number of shares of Preferred Stock
equal to 12,500,000 divided by the Average Share Price shall have been
designated Series A Preferred Stock. As of the date hereof, immediately prior to
giving effect to the purchase and sale of the Shares as contemplated hereby,
11,481,992 shares of Common Stock and no shares of Preferred Stock are validly
issued and outstanding, fully paid and nonassessable.
(b) Except for the transactions contemplated herein or as set forth in
the Company's Form 10-K for the 1995 fiscal year or the Company's Form 10-Q for
the first quarter ended December 31, 1995 or the second quarter ended March 31,
1996, referred to in Section 2.06 hereof, (i) no subscription, warrant, option,
convertible security or other right (contingent or other) to purchase or acquire
any shares of any class of capital stock of the Company is authorized or
outstanding, (ii) there is not any commitment of the Company to issue any
shares, warrants, options or other such rights or to distribute to holders of
any class of its capital stock any evidences of indebtedness or assets, and
(iii) the Company has no obligation (contingent or other) to purchase, redeem or
otherwise acquire any shares of its capital stock or any interest therein or to
pay any dividend or make any other distribution in respect thereof.
SECTION 2.05 Financial Statements. The Company has heretofore
furnished to the Purchasers: (i) the audited consolidated balance sheet of the
Company and its subsidiaries as of September 30, 1995, and the related
consolidated statements of operations, changes in stockholders' equity and cash
flows for the year then ended, certified by Coopers & Lybrand L.L.P.,
independent certified public accountants, and (ii) the unaudited consolidated
balance sheets of the Company and its subsidiaries as of December 31, 1995 and
March 31, 1996, and the related unaudited consolidated statements of operations,
changes in stockholders' equity and cash flows for the respective three and six
month periods then ended, certified by the principal financial officer of the
Company. All such financial statements (including any related schedules and/or
notes, if any) are complete and correct in all material respects and have been
prepared in accordance with generally accepted accounting principles
consistently applied. Each such balance sheet fairly and accurately presents the
financial position of the Company and its subsidiaries as of its date, and each
of said statements of operations, changes in stockholders' equity and cash flows
fairly and accurately presents the results of operations of the Company and its
subsidiaries for the period covered thereby, subject, in the case of unaudited
financial statements, to normal year-end adjustments which are not, in the
aggregate, material. Since March 31, 1996, except as disclosed in the Company's
earnings
<PAGE>
CUSIP No. 051629103 Page 18 of 44 Pages
release for the third quarter ended June 30, 1996, neither the business,
operations, property nor financial condition of the Company and its
subsidiaries, taken as a whole, have been materially adversely effected by any
occurrence or development known to the Company, whether or not insured against.
SECTION 2.06 Disclosure. Neither the Company's Annual Report on Form
10-K for the year ended September 30, 1995 nor its Quarterly Report on Form 10-Q
for the first quarter ended December 31, 1995 or the second quarter ended March
31, 1996, contain any untrue statement of material fact, or omit to state any
material fact necessary in order to make the statements contained therein, in
light of the circumstances under which they were made, not misleading. Neither
this Agreement nor any of the schedules, attachments, written statements,
documents, certificates or other items delivered by the Company to the
Purchasers pursuant to this Agreement contain any untrue statement of material
fact, or omit to state any material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading. The Company has furnished the Purchasers with an
accurate and complete copy of its annual report on Form 10-K for the 1995 fiscal
year and of all other reports or documents required to be filed by the Company
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder (the
"Exchange Act"), since the filing of the most recent annual report to its
stockholders. The Company has made all filings with the Securities and Exchange
Commission (the "Commission") that it has been legally required to make. Except
as disclosed in Schedule 2.06 attached hereto, the Company has not received any
request from the Commission to file any amendment or supplement to any of the
reports described in this Section 2.06.
SECTION 2.07 Actions Pending. Except as set forth in the Company's
Form 10-K for the 1995 fiscal year or the Company's Form 10-Q for the first
quarter ended December 31, 1995 or the second quarter ended March 31, 1996,
referred to in Section 2.06 hereof, there is no action, suit, proceeding or, to
the knowledge of the Company, investigation pending or, to the knowledge of the
Company, threatened against or affecting the Company or any of its subsidiaries
or any of their respective properties or rights before any court or by or before
any governmental body or arbitration board or tribunal, the outcome of which
might result in any material adverse effect on the business, prospects,
operations, property or financial condition of the Company or any of its
subsidiaries, taken as a whole. To the knowledge of the Company, there does not
exist any basis for any such action, suit, investigation or proceeding.
III.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser represents and warrants to the Company that it is
acquiring the Shares being purchased by it hereunder for its own account for the
purpose of investment and not with a view to, or for sale in connection with,
any distribution thereof. Each Purchaser further represents that it understands
that (i) the Shares have not been registered under the Securities Act of 1933,
<PAGE>
CUSIP No. 051629103 Page 19 of 44 Pages
as amended (the "Securities Act"), by reason of their issuance in a
transaction exempt from the registration requirements of the Securities Act
pursuant to Section 4(2) thereof, (ii) the Shares must be held indefinitely
unless a subsequent disposition thereof is registered under the Securities Act
or is exempt from such registration, (iii) the Shares will bear a legend to such
effect and (iv) the Company will make a notation on its transfer books to such
effect. Each Purchaser further understands that the exemption from registration
afforded by Rule 144 under the Securities Act depends on the satisfaction of
various conditions and that, if applicable, Rule 144 affords the basis of sales
of the Shares (or of the shares of Common Stock issuable upon conversion
thereof) in limited amounts under certain conditions. Each Purchaser
acknowledges that it has had a full opportunity to request from the Company to
review and has received all information deemed relevant in making a decision to
enter into this Agreement and consummate the transactions contemplated hereby.
IV.
CONDITIONS TO THE OBLIGATIONS
OF THE PURCHASERS AND THE COMPANY
SECTION 4.01 Conditions to the Obligations of the Purchasers.
The obligation of each Purchaser to purchase and pay for the Shares being
purchased by it hereunder on the Closing Date is, at its option, subject to the
satisfaction, on or before such date, of the following conditions:
(a) Representations and Warranties to be True
and Correct. The representations and warranties contained in Article II
hereof shall be true and correct on and as of the Closing Date with the
same force and effect as though such representations and warranties had
been made on and as of such date, and the Company shall have certified
to such effect to the Purchasers in writing.
(b) Performance. The Company shall have
performed and complied with all agreements and conditions contained
herein required to be performed or complied with by it prior to or at
the Closing Date, and the Company shall have certified to such effect
to the Purchasers in writing.
(c) Credit Line Agreement. The $12,500,000 Credit
Agreement (the "Credit Agreement") between the Company and NationsBank,
N.A., a national banking association ("NationsBank"), shall have been
executed and delivered by the Company and NationsBank and shall be in
full force and effect.
(d) Guaranty Agreement. The Agreement (the "Guaranty
Agreement") between the Company and WCAS VI, pursuant to which (i) WCAS
VI shall agree to execute a guaranty in connection with the Credit
Agreement in order to protect and enhance its existing substantial
<PAGE>
CUSIP No. 051629103 Page 20 of 44 Pages
equity investment in the Company and to induce NationsBank to enter
into the Credit Agreement, and (ii) the Company shall agree to issue
to WCAS VI in recognition for the additional financial risk assumed by
WCAS VI in executing such guaranty (and not as compensation or a
payment for any services or otherwise in connection with the pursuit
of a trade or business) 75,000 shares (the "Guaranty Shares") of
Common Stock, shall have been executed and delivered by the Company
and shall be in full force and effect.
(e) Guaranty Shares. The Guaranty Shares shall have
been issued and delivered to WCAS VI pursuant to the Guaranty
Agreement.
(f) Certificate of Designation. The Certificate of
Designation shall have been adopted by the Company by all necessary
action of the Board of Directors, and shall have been duly filed with
the Secretary of State of Delaware and become legally effective.
(g) All Proceedings to be Satisfactory. All
corporate and other proceedings to be taken by the Company in
connection with the transactions contemplated hereby and all documents
incident thereto shall be satisfactory in form and substance to the
Purchasers and the Purchasers shall have received all such counterpart
originals or certified or other copies of such documents as they may
reasonably request, including, without limitation, certified copies of
the resolutions of the Board of Directors of the Company approving and
authorizing the execution, delivery and performance of this Agreement
and the issue, sale and delivery of the Shares.
All such documents shall be satisfactory in form and substance
to the Purchasers.
SECTION 4.02 Conditions to the Obligations of the Company. The
obligation of the Company to sell the Shares on the Closing Date is, at its
option, subject to the satisfaction, on or before the Closing Date, of the
following conditions:
(a) Credit Line Agreement. The Credit Agreement shall
have been executed and delivered by NationsBank and shall be
in full force and effect.
(b) Guaranty Agreement. The Guaranty Agreement shall
have been executed and delivered by WCAS VI and shall be in full force
and effect.
(c) Guaranty. The Guaranty made by WCAS VI in favor of
NationsBank in connection with the Credit Agreement shall have been
executed and delivered by WCAS VI and shall be in full force and
effect.
(d) Certificate of Designation. The Certificate of
Designation shall have been adopted
<PAGE>
CUSIP No. 051629103 Page 21 of 44 Pages
by the Company by all necessary action of the Board of Directors, and
shall have been duly filed with the Secretary of State of Delaware and
become legally effective.
V.
COVENANTS OF THE COMPANY
SECTION 5.01 Certain Registration Rights. The Company hereby
affirms and agrees that the registration rights granted to the Purchasers and
certain other stockholders of the Company as set forth in Section 12 of the
Preferred Stock Purchase Agreement dated as of March 7, 1990, among, the Company
and International Business Machines, CS First Boston Securities Corporation and
the other parties named therein, as amended by, among other things, the
Securities Purchase Agreement dated as of September 30, 1994, among the Company,
WCAS Capital Partners II, L.P and the several securityholders named in Annexes I
and II thereto (said Section 12, as amended, herein referred to as the
"Registration Rights Agreement"), shall be deemed to continue in full force and
effect, provided, however, that the term "Registration Shares" shall be modified
to include (i) any shares of Common Stock issuable upon conversion of the shares
of Series A Preferred Stock issued to the Purchasers pursuant to this Agreement,
(ii) any shares of Common Stock issued to WCAS VI pursuant to the Guaranty
Agreement, and (iii) any securities issued or issuable with respect to any
shares of Series A Preferred Stock or Common Stock referred to in clause (i) or
(ii) by way of stock dividend or stock split or in connection with any merger,
consolidation or other reorganization or otherwise.
SECTION 5.02 Availability of Rule 144. So long as there are
Registration Shares (as defined in the Registration Rights Agreement)
outstanding, the Company hereby covenants and agrees that it shall file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the Commission thereunder, to the
extent required from time to time to enable any holder of Registration Shares to
sell such Registration Shares without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144 or any similar rule
or regulation allowing such holders to sell without registration under the
Securities Act, as such Rule may be amended from time to time; provided,
however, that so long as there are Registration Shares outstanding, the Company
shall continue to file such reports as may be required to satisfy the
requirements of Rule 144(c) even if not required to do so pursuant to the
Exchange Act.
VI.
MISCELLANEOUS
SECTION 6.01 Expenses. Each party hereto will pay its own expenses in
connection with the transactions contemplated hereby, whether or not such
transactions shall be consummated.
<PAGE>
CUSIP No. 051629103 Page 22 of 44 Pages
SECTION 6.02 Survival of Agreements. All covenants, agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement and the issuance, sale and delivery of the Shares
pursuant hereto, and all statements contained in any certificate or other instru
ment delivered by the Company hereunder shall be deemed to constitute
representations and warranties made by the Company.
SECTION 6.03 Brokerage. The Company, on the one hand, and the
Purchasers, on the other hand, shall indemnify and hold harmless the other
against and in respect of any claim for brokerage or other commissions relative
to this Agreement or to the transactions contemplated hereby, based in any way
on agreements, arrangements or understandings made or claimed to have been made
by such party with any third party.
SECTION 6.04 Parties in Interest. All covenants, agreements,
representations and warranties contained in this Agreement by or on behalf of
the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not.
SECTION 6.05 Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be sent by national
overnight courier service or certified mail, return receipt requested, in each
case with postage prepaid, addressed as follows:
(a) if to the Company, at 8000 Regency Parkway, Cary, North Carolina
27511, Attention: President; and
(b) if to any Purchaser, to its address set forth on Schedule I
hereto;
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others.
SECTION 6.06 Law Governing. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 6.07 Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and may not
be modified or amended except in writing.
SECTION 6.08 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
<PAGE>
CUSIP No. 051629103 Page 23 of 44 Pages
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written.
SEER TECHNOLOGIES, INC.
By
Name:
Title:
WELSH, CARSON, ANDERSON
& STOWE VI, L.P.
By WCAS VI Partners, L.P., General
Partner
By
General Partner
WCAS INFORMATION PARTNERS, L.P.
By WCAS INFO Partners,
General Partner
By
General Partner
*
Patrick J. Welsh
<PAGE>
CUSIP No. 051629103 Page 24 of 44 Pages
*
Russell L. Carson
*
Bruce K. Anderson
*
Richard H. Stowe
<PAGE>
CUSIP No. 051629103 Page 25 of 44 Pages
*
Andrew M. Paul
*
Thomas E. McInerney
Laura VanBuren, individually
and as attorney-in-fact*
*
James B. Hoover
DELAWARE CHARTER TRUST CO., as
Trustee for the Benefit of the
IRA Rollover of James B. Hoover
By
*
Robert A. Minicucci
*
Anthony J. de Nicola
<PAGE>
CUSIP No. 051629103 Page 26 of 44 Pages
TRUST U/A DATED 11/26/84 for the
Benefit of Eric Welsh (Carol
Ann Welsh, Trustee)
By
<PAGE>
CUSIP No. 051629103 Page 27 of 44 Pages
TRUST U/A DATED 11/26/84 for the
Benefit of Randall Welsh (Carol
Ann Welsh, Trustee)
By
TRUST U/A DATED 11/26/84 for the
Benefit of Jennifer Welsh (Carol
Ann Welsh, Trustee)
By
David F. Bellet
REBOUL, MACMURRAY, HEWITT, MAYNARD
& KRISTOL
By
<PAGE>
CUSIP No. 051629103 Page 28 of 44 Pages
Schedule I
Series A Preferred Stock Purchasers
Name of Purchaser Purchase Price
Welsh, Carson, Anderson & Stowe VI, L.P. $11,810,526
WCAS Information Partners, L.P. 141,128
Patrick J. Welsh 70,566
TRUST U/A DATED 11/26/84 for the 10,079
Benefit of Eric Welsh (Carol
Ann Welsh, Trustee)
TRUST U/A DATED 11/26/84 for the 10,079
Benefit of Randall Welsh (Carol
Ann Welsh, Trustee)
TRUST U/A DATED 11/26/84 for the 10,079
Benefit of Jennifer Welsh (Carol
Ann Welsh, Trustee)
Russell L. Carson 100,802
Bruce K. Anderson 100,802
Richard H. Stowe 40,314
Andrew M. Paul 24,191
Thomas E. McInerney 20,161
Laura VanBuren 4,030
James B. Hoover 30,240
<PAGE>
CUSIP No. 051629103 Page 29 of 44 Pages
Delaware Charter Trust Co., as 10,079
Trustee for the Benefit of the
IRA Rollover of James B. Hoover
Robert A. Minicucci 50,401
Anthony J. de Nicola 6,044
David F. Bellet 40,320
Reboul, MacMurray, Hewitt, Maynard 20,159
& Kristol
TOTAL: $12,500,000
<PAGE>
CUSIP No. 051629103 Page 30 of 44 Pages
EXHIBIT C
PREFERRED STOCK PURCHASE AGREEMENT, dated as of April 27, 1998, among
SEER TECHNOLOGIES, INC., a Delaware corporation (the "Company"), WELSH, CARSON,
ANDERSON & STOWE VI, L.P., a Delaware limited partnership ("WCAS VI"), and the
several other purchasers listed on Schedule I hereto (such other purchasers
together with WCAS VI being herein referred to individually as a "Purchaser" and
collectively the "Purchasers").
WHEREAS, after giving effect to the filing of a Certificate of
Designation of the Company in the form annexed hereto as Exhibit A (the
"Certificate of Designation"), the Company shall designate shares of Series B
Convertible Preferred Stock ("Series B Preferred Stock") from the Company's
authorized 10,000,000 shares of Preferred Stock, par value $.01 per share (the
"Preferred Stock");
WHEREAS, the Company wishes to issue and sell to the Purchasers shares
of Series B Preferred Stock for an aggregate purchase price of $5,000,000 (the
"Purchase Price"); and
WHEREAS, the Purchasers wish to purchase said shares of Series B
Preferred Stock, all on the terms and subject to the conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereby agree as follows:
1.
PURCHASE AND SALE OF SHARES
SECTION 1.01 Issuance, Sale and Delivery of the Shares. On the Closing
Date (as defined below), the Company shall issue and sell to the Purchasers, and
each Purchaser shall purchase from the Company, the number of authorized but
unissued shares of Series B Preferred Stock, rounded to the nearest whole share
(said aggregate shares being purchased by the Purchasers being herein
collectively called the "Shares"), obtained by dividing the amount set forth
opposite the name of such Purchaser in Schedule I hereto under the heading
"Purchase Price", by the Average Share Price (as defined below), and the Company
shall issue and deliver to each Purchaser stock certificates in definitive form,
registered in the name of such Purchaser, representing the Shares being
purchased by such Purchaser hereunder.
(a) The price per Share to be paid by each Purchaser on the
Closing Date (the "Average Share Price") shall be determined by taking the
average of the last reported sales price per share of Common Stock, par value
$.01 per share ("Common Stock"), of the Company quoted by the National
<PAGE>
CUSIP No. 051629103 Page 31 of 44 Pages
Association of Securities Dealers Automated Quotation System for the twenty (20)
consecutive trading days beginning on April 13, 1998.
(b) ______ As payment in full for the Shares being purchased by each
Purchaser hereunder, and against delivery of the stock certificates therefor as
aforesaid, on the Closing Date each Purchaser shall wire transfer to the account
of the Company in immediately available funds the sum set forth opposite the
name of such Purchaser in Schedule I hereto under the heading "Purchase Price".
SECTION 1.02 Closing Date. The closing of the sale and purchase of the
Shares shall take place at the offices of Reboul, MacMurray, Hewitt, Maynard &
Kristol, 45 Rockefeller Plaza, New York, New York, at 10 a.m., New York time, on
April 27, 1998, or at such other date and time as may be mutually agreed upon
between the Purchasers and the Company (such date and time of closing being
herein called the "Closing Date").
2.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchasers as follows:
SECTION 2.01 Organization, Qualifications and Corporate Power. The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is duly licensed or
qualified to transact business as a foreign corporation and is in good standing
in each jurisdiction in which the nature of its business or the ownership of its
properties makes such licensing or qualification necessary, except where the
failure to be so licensed or qualified would not have a material adverse effect
on the operations or financial condition of the Company. The Company has the
corporate power and authority to own and hold its properties and to carry on its
business as currently conducted, to execute, deliver and perform this Agreement
and to issue, sell and deliver the Shares.
SECTION 2.02 Authorization of Agreements, Etc.(a) The
execution and delivery by the Company of this Agreement and the performance by
the Company of its obligations hereunder have been duly authorized by all
requisite corporate action and will not violate any provision of law, any order
of any court or other agency of government, the Restated Certificate of
Incorporation or By-laws of the Company, or any provision of any indenture,
agreement or other instrument by which the Company or any of its subsidiaries or
any of their respective properties or assets is bound, or conflict with, result
in a breach of or constitute (with due notice or lapse of time or both) a
default under any such indenture, agreement or other instrument, or result in
the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company or any of its
subsidiaries.
<PAGE>
CUSIP No. 051629103 Page 32 of 44 Pages
(b) The Shares have been duly authorized and designated, and
when issued in accordance with the terms of this Agreement, will be validly
issued, fully paid and nonassessable shares of Series B Preferred Stock. The
issuance, sale and delivery of the Shares are not subject to any preemptive
rights of stockholders of the Company or to any right of first refusal or other
similar right in favor of any person.
SECTION 2.03 Validity. This Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable in accordance with its terms.
SECTION 2.04 Authorized Capital Stock. (a) On the date hereof, the
authorized capital stock of the Company consists of 30,000,000 shares of Common
Stock and 10,000,000 shares of Preferred Stock of which 2,094,143 shares are
designated Series A Convertible Preferred Stock (the "Series A Preferred
Stock"). After giving effect to the filing of the Certificate of Designation, a
number of shares of Preferred Stock equal to 5,000,000 divided by the Average
Share Price shall have been designated Series B Preferred Stock. As of the date
hereof, immediately prior to giving effect to the purchase and sale of the
Shares as contemplated hereby, 11,944,689 shares of Common Stock and 2,094,143
shares of Series A Preferred Stock are validly issued and outstanding, fully
paid and nonassessable.
(b) Except for the transactions contemplated herein or as set forth in
the Company's Form 10-K for the 1997 fiscal year or the Company's Form 10-Q for
the first quarter ended December 31, 1997 referred to in Section 2.06 hereof,
(i) no subscription, warrant, option, convertible security or other right
(contingent or other) to purchase or acquire any shares of any class of capital
stock of the Company is authorized or outstanding, (ii) there is not any
commitment of the Company to issue any shares, warrants, options or other such
rights or to distribute to holders of any class of its capital stock any
evidences of indebtedness or assets, and (iii) the Company has no obligation
(contingent or other) to purchase, redeem or otherwise acquire any shares of its
capital stock or any interest therein or to pay any dividend or make any other
distribution in respect thereof.
SECTION 2.05 Financial Statements. The Company has heretofore
furnished to the Purchasers: (i) the audited consolidated balance sheet of the
Company and its subsidiaries as of September 30, 1997, and the related
consolidated statements of operations, changes in stockholders' equity and cash
flows for the year then ended, certified by Coopers & Lybrand L.L.P.,
independent certified public accountants, and (ii) the unaudited consolidated
balance sheet of the Company and its subsidiaries as of December 31, 1997, and
the related unaudited consolidated statements of operations, changes in
stockholders' equity and cash flows for the three month period then ended,
certified by the principal finan cial officer of the Company. All such financial
statements (including any related schedules and/or notes, if any) are complete
and correct in all material respects and have been prepared in accordance with
generally accepted accounting principles consistently applied. Each such balance
sheet fairly and accurately presents the financial position of the Company and
its subsidiaries as of its date, and each of said statements of operations,
changes in stockholders' equity and cash flows fairly and accurately presents
<PAGE>
CUSIP No. 051629103 Page 33 of 44 Pages
the results of operations of the Company and its subsidiaries for the
period covered thereby, subject, in the case of unaudited financial statements,
to normal year-end adjustments which are not, in the aggregate, material. Since
December 31, 1997, neither the business, operations, property nor financial
condition of the Company and its subsidiaries, taken as a whole, have been
materially adversely affected by any occurrence or development known to the
Company, whether or not insured against.
SECTION 2.06 Disclosure. Neither the Company's Annual Report on Form
10-K for the year ended September 30, 1997 nor its Quarterly Report on Form 10-Q
for the first quarter ended December 31, 1997 contains any untrue statement of
material fact, or omits to state any material fact necessary in order to make
the statements contained therein, in light of the circumstances under which they
were made, not misleading. Neither this Agreement nor any of the schedules,
attachments, written statements, documents, certificates or other items
delivered by the Company to the Purchasers pursuant to this Agreement contain
any untrue statement of material fact, or omit to state any material fact
necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading. The Company has
furnished the Purchasers with an accurate and complete copy of its annual report
on Form 10-K for the 1997 fiscal year and of all other reports or documents
required to be filed by the Company pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (the "Exchange Act"), since the filing of the most
recent annual report to its stockholders. The Company has made all filings with
the Securities and Exchange Commission (the "Commission") that it has been
legally required to make. Except as disclosed in Schedule 2.06 attached hereto,
the Company has not received any request from the Commission to file any
amendment or supplement to any of the reports described in this Section 2.06.
SECTION 2.07 Actions Pending. Except as set forth in the Company's
Form 10-K for the 1997 fiscal year or the Company's Form 10-Q for the first
quarter ended December 31, 1997 referred to in Section 2.06 hereof, there is no
action, suit, proceeding or, to the knowledge of the Company, investigation
pending or, to the knowledge of the Company, threatened against or affecting the
Company or any of its subsidiaries or any of their respective properties or
rights before any court or by or before any governmental body or arbitration
board or tribunal, the outcome of which might result in any material adverse
effect on the business, prospects, operations, property or financial condition
of the Company or any of its subsidiaries, taken as a whole. To the knowledge of
the Company, there does not exist any basis for any such action, suit,
investigation or proceeding.
III.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser represents and warrants to the Company that it is
acquiring the Shares being purchased by it hereunder for its own account for the
purpose of investment and not with a view to, or for sale in connection with,
any distribution thereof. Each Purchaser further represents that it
<PAGE>
CUSIP No. 051629103 Page 34 of 44 Pages
understands that (i) the Shares have not been registered under the Securities
Act of 1933, as amended (the "Securities Act"), by reason of their issuance in a
transaction exempt from the registration requirements of the Securities Act
pursuant to Section 4(2) thereof, (ii) the Shares must be held indefinitely
unless a subsequent disposition thereof is registered under the Securities Act
or is exempt from such registration, (iii) the Shares will bear a legend to such
effect and (iv) the Company will make a notation on its transfer books to such
effect. Each Purchaser further understands that the exemption from registration
afforded by Rule 144 under the Securities Act depends on the satisfaction of
various conditions and that, if applicable, Rule 144 affords the basis of sales
of the Shares (or of the shares of Common Stock issuable upon conversion
thereof) in limited amounts under certain conditions. Each Purchaser
acknowledges that it has had a full opportunity to request from the Company to
review and has received all information deemed relevant in making a decision to
enter into this Agreement and consummate the transactions contemplated hereby.
IV.
CONDITIONS TO THE OBLIGATIONS
OF THE PURCHASERS AND THE COMPANY
SECTION 4.01 Conditions to the Obligations of the Purchasers. The
obligation of each Purchaser to purchase and pay for the Shares being purchased
by it hereunder on the Closing Date is, at its option, subject to the
satisfaction, on or before such date, of the following conditions:
(a) Representations and Warranties to be True and
Correct. The representations and warranties contained in Article II
hereof shall be true and correct on and as of the Closing Date with the
same force and effect as though such representations and warranties had
been made on and as of such date, and the Company shall have certified
to such effect to the Purchasers in writing.
(b) Performance. The Company shall have performed and
complied with all agreements and conditions contained herein required
to be performed or complied with by it prior to or at the Closing Date,
and the Company shall have certified to such effect to the Purchasers
in writing.
(c) Credit Line Agreement. The $12,500,000 Credit
Agreement (the "Credit Agreement"), dated as of July 15, 1996, as
amended by that certain First Amendment To Credit Agreement, dated as
of March 27, 1997, between the Company and NationsBank, N.A., a
national banking association ("NationsBank"), shall have been increased
by $4,500,000 (the "Increased Amount") to $17,000,000 and shall be in
full force and effect and the Second Amendment To Credit Agreement (the
"Second Amendment To Credit Agreement") between the Company and
NationsBank shall have been executed and delivered by the Company and
NationsBank and shall be in full force and effect.
<PAGE>
CUSIP No. 051629103 Page 35 of 44 Pages
(d) Guaranty Agreement. The Agreement (the "Second Guaranty
Agreement") between the Company and WCAS VI pursuant to which (i) WCAS
VI shall agree to execute a guaranty in connection with the Increased
Amount and certain liabilities and obligations (the "Hedge Amount") of
the Company to NationsBank or one of its affiliates pursuant to
"Hedge" Agreements for an additional aggregate amount of $5,000,000 in
order to protect and enhance its existing substantial equity
investment in the Company and to induce NationsBank to increase the
funds available under the Credit Agreement, and (ii) the Company shall
agree to issue to WCAS VI in recognition for the additional financial
risk assumed by WCAS VI in guaranteeing the Increased Amount and the
Hedge Amount (and not as compensation or a payment for any services or
otherwise in connection with the pursuit of a trade or business)
30,000 shares (the "Additional Guaranty Shares") of Common Stock,
shall have been executed and delivered by the Company and shall be in
full force and effect.
(e) Additional Guaranty Shares. The Additional Guaranty
Shares shall have been issued and delivered to WCAS VI pursuant to the
Second Guaranty Agreement.
(f) Extension of Revolver. The maturity date of the Loan and
Security Agreement, dated as of March 26, 1997, between the Company and
Greyrock Business Credit, a division of NationsCredit Commercial
Corporation, shall have been extended until at least one year from the
Closing Date.
(g) Certificate of Designation. The Certificate of
Designation shall have been adopted by the Company by all necessary
action of the Board of Directors, and shall have been duly filed with
the Secretary of State of Delaware and become legally effective.
(h) All Proceedings to be Satisfactory. All corporate
and other proceedings to be taken by the Company in connection with the
transactions contemplated hereby and all documents incident thereto
shall be satisfactory in form and substance to the Purchasers and the
Purchasers shall have received all such counterpart originals or
certified or other copies of such documents as it may reasonably
request, including, without limitation, certified copies of the
resolutions of the Board of Directors of the Company approving and
authorizing the execution, delivery and per formance of this Agreement
and the issue, sale and delivery of the Shares.
All such documents shall be satisfactory in form and substance to the
Purchasers.
SECTION 4.02 Conditions to the Obligations of the Company. The
obligation of the Company to sell the Shares on the Closing Date is, at its
option, subject to the satisfaction, on or before the Closing Date, of the
following conditions:
(a) Increased Credit Agreement. The Credit Agreement
shall have been amended to reflect the Increased Amount and shall be in
full force and effect.
<PAGE>
CUSIP No. 051629103 Page 36 of 44 Pages
(b) Guaranty Agreement. The Second Guaranty Agreement
shall have been executed and delivered by WCAS VI and shall be in full
force and effect.
(c) Guaranty. The Amended and Restated Guaranty (the
"Amended Guaranty") by WCAS VI in favor of NationsBank shall have been
executed and delivered and shall be in full force and effect.
(d) Certificate of Designation. The Certificate of
Designation shall have been adopted by the Company by all necessary
action of the Board of Directors, and shall have been duly filed with
the Secretary of State of Delaware and become legally effective.
V.
COVENANTS OF THE COMPANY
SECTION 5.01 Certain Registration Rights. The Company hereby affirms
and agrees that the registration rights granted to the Purchasers and certain
other stockholders of the Company as set forth in Section 12 of the Preferred
Stock Purchase Agreement dated as of March 7, 1990, among the Company and
International Business Machines, CS First Boston Securities Corporation and the
other parties named therein, as amended by, among other things, the Securities
Purchase Agreement dated as of September 30, 1994, among the Company, WCAS
Capital Partners II, L.P and the several securityholders named in Annexes I and
II thereto and the Preferred Stock Purchase Agreement, dated as of July 31,
1996, among the Company, WCAS VI and the several other purchasers named in
Schedule I thereto (said Section 12, as amended, herein referred to as the
"Registration Rights Agreement"), shall be deemed to continue in full force and
effect, provided, however, that the term "Registration Shares" shall be modified
to include (i) any shares of Common Stock issuable upon conversion of the shares
of Series B Preferred Stock issued to the Purchasers pursuant to this Agreement,
(ii) any shares of Common Stock issued to WCAS VI pursuant to the Second
Guaranty Agreement, and (iii) any securities issued or issuable with respect to
any shares of Series B Preferred Stock or Common Stock referred to in clause (i)
or (ii) by way of stock dividend or stock split or in connection with any
merger, consolidation or other reorganization or otherwise.
SECTION 5.02 Availability of Rule 144. So long as there are
Registration Shares (as defined in the Registration Rights Agreement)
outstanding, the Company hereby covenants and agrees that it shall file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the Commission thereunder, to the
extent required from time to time to enable any holder of Registration Shares to
sell such Registration Shares without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144 or any similar rule
or regulation allowing such holders to sell without registration under the
Securities Act, as such Rule may be amended from time to time; provided,
however, that so long as there are Registration Shares outstanding, the Company
shall
<PAGE>
CUSIP No. 051629103 Page 37 of 44 Pages
continue to file such reports as may be required to satisfy the requirements of
Rule 144(c) even if not required to do so pursuant to the Exchange Act.
SECTION 5.03 Payment on Credit Agreement and Reduction of Guaranty.
The Company hereby affirms and agrees that, in the event either (a) it issues
equity securities, in addition to those outstanding immediately after the
consummation of the transactions contemplated in this Agreement, that have a
value of $5,000,000 or more or (b) it enters into a contractual agreement for
providing services pursuant to which it receives an advance payment of
$5,000,000 or more, it shall use at least $5,000,000 of such funds to
permanently reduce its Commitment (as defined in the Credit Agreement) under the
Credit Agreement (as amended by the Second Amendment To Credit Agreement).
In the event that either (a) or (b) above occurs, the Company shall
use its best efforts to assist WCAS VI in reducing the Guaranty (as amended by
the Amended Guaranty) issued in connection with the Credit Agreement by at least
$5,000,000.
VI.
MISCELLANEOUS
SECTION 6.01 Expenses. Each party hereto will pay its own expenses in
connection with the transactions contemplated hereby, whether or not such
transactions shall be consummated.
SECTION 6.02 Survival of Agreements. All covenants, agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement and the issuance, sale and delivery of the Shares
pursuant hereto, and all statements contained in any certificate or other instru
ment delivered by the Company hereunder shall be deemed to constitute
representations and warranties made by the Company.
SECTION 6.03 Brokerage. The Company, on the one hand, and the
Purchasers, on the other hand, shall indemnify and hold harmless the other
against and in respect of any claim for brokerage or other commissions relative
to this Agreement or to the transactions contemplated hereby, based in any way
on agreements, arrangements or understandings made or claimed to have been made
by such party with any third party.
SECTION 6.04 Parties in Interest. All covenants, agreements,
representations and warranties contained in this Agreement by or on behalf of
the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not.
SECTION 6.05 Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be sent by national
overnight courier service or certified mail, return
<PAGE>
CUSIP No. 051629103 Page 38 of 44 Pages
receipt requested, in each case with postage prepaid, addressed as follows:
(a) if to the Company, at 8000 Regency Parkway, Cary, North
Carolina 27511, Attention: President; and
(b) if to the Purchasers, to their addresses as set forth on
Schedule I hereto;
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others.
SECTION 6.06 Law Governing. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 6.07 Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and may not
be modified or amended except in writing.
SECTION 6.08 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
<PAGE>
CUSIP No. 051629103 Page 39 of 44 Pages
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written.
SEER TECHNOLOGIES, INC.
By
Name:
Title:
WELSH, CARSON, ANDERSON
& STOWE VI, L.P.
By WCAS VI Partners, L.P., General
Partner
By
General Partner
WCAS INFORMATION PARTNERS, L.P.
By WCAS INFO Partners,
General Partner
By
General Partner
*
Patrick J. Welsh
<PAGE>
CUSIP No. 051629103 Page 40 of 44 Pages
*
Russell L. Carson
*
Bruce K. Anderson
*
Richard H. Stowe
*
Andrew M. Paul
*
Thomas E. McInerney
Laura VanBuren, individually
and as attorney-in-fact*
*
James B. Hoover
DELAWARE CHARTER TRUST CO., as
Trustee for the Benefit of the
IRA Rollover of James B. Hoover
<PAGE>
CUSIP No. 051629103 Page 41 of 44 Pages
By
*
Robert A. Minicucci
*
Anthony J. de Nicola
TRUST U/A DATED 11/26/84 for the
Benefit of Eric Welsh (Carol
Ann Welsh, Trustee)
By
TRUST U/A DATED 11/26/84 for the
Benefit of Randall Welsh (Carol
Ann Welsh, Trustee)
By
TRUST U/A DATED 11/26/84 for the
Benefit of Jennifer Welsh (Carol
Ann Welsh, Trustee)
By
David F. Bellet
<PAGE>
CUSIP No. 051629103 Page 42 of 44 Pages
REBOUL, MACMURRAY, HEWITT, MAYNARD
& KRISTOL
By
<PAGE>
CUSIP No. 051629103 Page 43 of 44 Pages
Schedule I
Series B Preferred Stock Purchasers
Name of Purchaser Purchase Price
Welsh, Carson, Anderson & Stowe VI, L.P. $ 4,724,210
WCAS Information Partners, L.P. 56,451
Patrick J. Welsh 28,226
TRUST U/A DATED 11/26/84 for the 4,032
Benefit of Eric Welsh (Carol Ann Welsh, Trustee)
TRUST U/A DATED 11/26/84 for the 4,032
Benefit of Randall Welsh (Carol Ann Welsh, Trustee)
TRUST U/A DATED 11/26/84 for the 4,032
Benefit of Jennifer Welsh (Carol Ann Welsh, Trustee)
Russell L. Carson 40,321
Bruce K. Anderson 40,321
Richard H. Stowe 16,126
Andrew M. Paul 9,676
Thomas E. McInerney 8,064
Laura VanBuren 1,612
James B. Hoover 12,096
Delaware Charter Trust Co., as Trustee for 4,032
the Benefit of the IRA Rollover of James B. Hoover
Robert A. Minicucci 20,160
Anthony J. de Nicola 2,418
<PAGE>
CUSIP No. 051629103 Page 44 of 44 Pages
[S] [C] [C] [C] [C] [C] [C]
David F. Bellet 16,128
Reboul, MacMurray, Hewitt, Maynard & Kristol 8,064
-----
TOTAL: $5,000,000
<PAGE>
