EXHIBIT 4.9
TRIDEX CORPORATION
PROGRESSIVE SOFTWARE, INC.
ULTIMATE TECHNOLOGY CORPORATION
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March 26, 1999
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
MASSMUTUAL CORPORATE INVESTORS
MASSMUTUAL PARTICIPATION INVESTORS
MASSMUTUAL CORPORATE VALUE PARTNERS LIMITED
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Second Amendment to Securities Purchase Agreements
Ladies and Gentlemen:
TRIDEX CORPORATION, a Connecticut corporation (the "Holding Company"),
PROGRESSIVE SOFTWARE, INC., a North Carolina corporation and successor to Tridex
NC, Inc. ("PSI"), and ULTIMATE TECHNOLOGY CORPORATION, a New York corporation
("UTC") (the Holding Company, PSI, and UTC are sometimes collectively referred
to herein as the "Issuers" and each as an "Issuer"), jointly and severally agree
with each of you as follows.
Background:
A. Reference is made to those certain Securities Purchase Agreements dated
April 17, 1998, as amended by that certain letter of waiver and limited
amendment dated November 12, 1998 relating thereto (the "First Amendment") (as
so amended, the "Securities Purchase Agreements"), among the Issuers and each of
you. Capitalized terms used herein without definition have the meanings ascribed
to them in the Securities Purchase Agreements.
B. The Issuers have requested that the holders of the Securities approve
certain amendments to and waivers under the Securities Purchase Agreements and
the other Operative Documents in connection with (a) certain existing Events of
Default thereunder; and (b) the Amendment No. 2 to Credit Agreement dated as of
March 15, 1999 (the "Second Amendment to Fleet Bank Agreement") among the
Holding Company, PSI, UTC, and Fleet National Bank, pursuant to which certain
amendments are being made to the Fleet Bank Documents and Fleet Bank is agreeing
to the deferral of a payment of principal thereunder.
1. Amendments.
(a) Section 12.1(b)(i) of each of the Securities Purchase Agreements is
hereby amended by deleting the words "one registration" and substituting the
words "two registrations" therefor.
(b) Section 12.3 of each of the Securities Purchase Agreements is hereby
amended by deleting section 12.3 in its entirely and substituting the following
therefor:
12.3 S-3 Registration; Permitted Registration.
(a) In addition to the rights under sections 12.1 and 12.2, upon the
written request by the holder or holders of an aggregate number of
Registrable Shares at the time issued (or issuable) constituting in the
aggregate the lesser of (x) 25 % of the aggregate number of Registrable
Shares issued (or issuable) as of March 26, 1999 (such number to be
appropriately adjusted for stock splits, stock dividends and combinations
and similar events) or (y) 100% of the Registrable Shares then issued (or
issuable), the Holding Company shall use its commercially reasonable best
efforts to effect the registration, qualification, and compliance of all
of the Registrable Shares of the holder or holders making such request and
shall use its commercially reasonable best efforts to continue the
effectiveness of the related registration statement for at least 180 days,
provided that the Holding Company shall be obligated to effect a
registration, qualification, and compliance requested pursuant to this
section 12.3(a) only if the Holding Company is then eligible to file the
related registration statement on Form S-3 (or any successor form) under
the Securities Act. The Holding Company shall pay all Registration
Expenses related to each registration, qualification, and compliance
requested pursuant to this section 12.3(a).
(b) If and to the extent that any holder or holders of any
Registrable Shares shall have, at the time of delivery of the written
request referred to in section 12.2, no present intention of selling or
distributing such Registrable Shares, the Holding Company shall be
obligated to effect the registration, qualification, and compliance of
such Registrable Shares of such holder or holders only if and to the
extent, in each case, that such registration, qualification, and
compliance are at the time permitted by the applicable statutes or rules
and regulations thereunder or the practices of the governmental authority
concerned.
(c) Section 13.6 of each of the Securities Purchase Agreements is hereby
amended by deleting section 13.6 in its entirely and substituting the following
therefor:
(a) EBITDA to Interest Charges Ratio. The Issuers, on a consolidated
basis, shall initially maintain a ratio of EBITDA to Interest Charges of
not less than 1.0 to 1.0 at all times, as measured on March 31, 1999, for
the period beginning on February 1, 1999, through March 31, 1999.
Thereafter, the Issuers, on a consolidated basis, shall maintain at all
times the minimum ratio of EBITDA to Interest Charges set forth below, as
measured at the end of each month commencing April 30, 1999, for the
period beginning on February 1, 1999, through the date of measurement set
forth below.
Measurement Date Applicable Ratio
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April 30, 1999 1.0 to 1.0
May 31, 1999 1.1 to 1.0
June 30, 1999 1.2 to 1.0
July 31, 1999 1.3 to 1.0
August 31, 1999 1.3 to 1.0
September 30, 1999 1.4 to 1.0
and the last day of
each month thereafter
For purposes of the aforesaid covenant, (a) "EBITDA" shall mean, for any
period, net income for such period after restoring thereto amounts
(without duplication) deducted for (i) Interest Charges, (ii) taxes in
respect of income, and (iii) depreciation and amortization, in each case
determined in accordance with GAAP; and (b) "Interest Charges" shall not
include any deferred interest on the Notes.
(b) Net Worth. The Issuers shall maintain at all times, as measured
at the end of each month, commencing March 31, 1999, Consolidated Net
Worth of not less than $15,400,000.
(d) The term "Registrable Shares" in section 14 of each of the Securities
Purchase Agreements is deleted in its entirely and the following is substituted
therefor:
"Registrable Shares" shall mean any Purchased Common Shares and any
Warrant Shares, except that, as to any particular Registrable Shares, such
securities, once issued, will cease to be Registrable Shares when (a) a
registration statement covering such securities has been declared
effective and such securities have been disposed of pursuant to an
effective registration statement or (b) such securities are sold to the
public in accordance with Rule 144 (or any similar provision then in
force) under the Securities Act. A Person shall be deemed a "holder" of
Registrable Shares for purposes of section 12 if such Person is the holder
of any Warrants or any Warrant Shares issued upon exercise of any Warrant.
(e) The term "Warrants" as used in each of the Securities Purchase
Agreements shall mean and include the Warrants for 800,000 Shares of Common
Stock, no par value, of the Holding Company referred to in section 3(a)(iv) of
this Second Amendment together with any warrants issued in exchange therefor or
replacement thereof.
2. Consents and Waivers. Each of you hereby agrees that (a) the Issuers may
defer the payment of the April 17, 1999, interest payment on the Notes until
July 17, 1999, at which date such April 17, 1999, payment and the July 17, 1999,
payment shall both be due and payable in full; and (b) notwithstanding anything
to the contrary in the Securities Purchase Agreements, the Issuers' failure to
comply with section 13.6 of the Securities Purchase Agreements prior to the date
of this Second Amendment in respect of the period ending December 31, 1998,
shall not constitute an Event of Default and the holders hereby waive any such
Event of Default which existed for such period prior to the date of this Second
Amendment, provided that such section 13.6 of the Securities Purchase Agreements
as amended hereby shall only remain in effect in respect of periods ending
subsequent to December 31, 1998, and prior to January 1, 2000. As of January 1,
2000, such section 13.6, as in effect prior to the date of the First Amendment,
shall be deemed reinstated.
3. Conditions to Effectiveness of Second Amendment. This Second Amendment shall
be effective upon the first date upon which the following conditions shall have
been satisfied to your reasonable satisfaction:
(a) The Issuers shall have delivered to you executed copies of each of the
following documents in form and substance satisfactory to you:
(i) a fully executed counterpart of this Second Amendment;
(ii) certified copies of (A) the resolutions of the Board of
Directors of each of the Issuers approving this Second Amendment and the
matters contemplated hereby and (B) all documents evidencing other
necessary corporate actions and governmental approvals, if any, with
respect to this Second Amendment and the other documents to be delivered
hereunder;
(iii) a certificate of the Secretary or an Assistant Secretary of
each of the Issuers certifying the names and true signatures of the
officers of each Issuer authorized to sign this
Second Amendment and the other documents to be delivered hereunder;
(iv) new, immediately exercisable, Warrants, dated the date hereof,
representing the right to purchase at an Exercise Price of $2.03125 per
share 800,000 shares of Common Stock, without par value, of the Holding
Company substantially in the form of Exhibit 3(a)(iv) attached hereto in
exchange for your surrender of the outstanding Warrants;
(v) an opinion, dated the date hereof, from Messrs. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇▇▇, counsel for the Issuers, substantially in the form of Exhibit
3(a)(v) attached hereto; and
(vi) an executed counterpart of an amendment to the Fleet Bank
Agreement, substantially in the form of Exhibit 3(a)(vi) attached hereto.
(b) The Issuers shall have paid in full all fees, expenses and
disbursements incurred by you in connection with this Second Amendment,
including, without limitation, the fees, expenses and disbursements of your
special counsel.
4. No Default, Representations and Warranties, Etc.
(a) The Issuers represent and warrant that the representations and
warranties contained in the Securities Purchase Agreements and the other
Operative Documents are in all material respects correct on and as of the date
hereof (after giving effect hereto) as if made on such date (except as a result
of transactions permitted under the Securities Purchase Agreements), that no
Default or Event of Default exists (other than those which have been
specifically waived pursuant to section 2 hereof) and that no condition exists
which has resulted in, or could reasonably be expected to result in, a Material
Adverse Change. The Common Stock issuable upon exercise of the Warrants,
including the new Warrants referred to in section 3(a)(iv) of this Second
Amendment, is the only class of Voting Stock of the Holding Company. Since April
17, 1998, there has been no adjustment to the Exercise Price (as defined in the
Warrants), and since such date no event has occurred which has required such
adjustment.
(b) Each of the Issuers ratifies and confirms the Securities Purchase
Agreements and each of the other Operative Documents to which it is a party and
agrees that, after giving effect to the amendments, modifications and
supplements effected hereby, each such agreement, document and instrument is in
full force and effect, that its obligations thereunder and under this Second
Amendment are its legal, valid and binding obligations enforceable against it in
accordance with the terms thereof and hereof and that it has no defense, whether
legal or equitable, setoff or counterclaim to the payment and performance of
such obligations.
(c) The Issuers agree that (i) if any default shall be made in the
performance or observation of any covenant, agreement or condition contained
herein or (ii) if any representation or warranty made by any Issuer herein or
therein shall prove to have been false or incorrect on the date as of which
made, the same shall constitute an Event of Default under the Securities
Purchase Agreements and the other Operative Documents and, in such event, you
and each other holder of any of the Securities shall have all rights and
remedies provided by law and/or provided or referred to in the Securities
Purchase Agreements and the other Operative Documents. The Issuers further agree
that this Second Amendment is an Operative Document and all references thereto
in the Securities Purchase Agreements and in any other of the Operative
Documents shall include this Second Amendment.
5. Payment of Transaction Costs. Without limiting the generality of the
provisions of the Operative Documents, the Issuers jointly and severally shall
pay all reasonable fees and disbursements incurred by you in connection
herewith, including, without limitation, the reasonable fees, expenses and
disbursements of your special counsel.
6. Governing Law. This Second Amendment, including the validity hereof and the
rights and obligations of the parties hereunder, shall be construed in
accordance with and governed by the domestic substantive laws of The
Commonwealth of Massachusetts without giving effect to any choice of law or
conflicts of law provision or rule that would cause the application of the
domestic substantive laws of any other jurisdiction.
7. Miscellaneous. The headings in this Second Amendment are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. This
Second Amendment embodies the entire agreement and understanding among the
parties hereto and supersedes all prior agreements and understandings relating
to the subject matter hereof. In case any provision in this Second Amendment
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby. This Second Amendment may be executed in any number of
counterparts and by the parties hereto on separate counterparts but all such
counterparts shall together constitute but one and the same instrument. Except
as specifically amended or modified pursuant to this Second Amendment, the
Securities Purchase Agreements shall remain in full force and effect, and the
execution and delivery of this Second Amendment shall not, except as expressly
provided herein, operate as a waiver of any of your rights, powers, or remedies
under the Securities Purchase Agreements or the documents and instruments
delivered in connection therewith.
[The remainder of this page is left blank intentionally.]
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart hereof, whereupon this Second
Amendment shall become a binding agreement under seal among the parties hereto.
Please then return one of such counterparts to the Issuers.
Very truly yours,
TRIDEX CORPORATION
By
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(Title)
PROGRESSIVE SOFTWARE, INC.
By
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(Title)
ULTIMATE TECHNOLOGY CORPORATION
By
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(Title)
The foregoing is hereby accepted and agreed to.
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By
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(Title)
MASSMUTUAL CORPORATE INVESTORS
By
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(Title)
The foregoing is executed on behalf of MassMutual
Corporate Investors, organized under a Declaration
of Trust, dated September 13, 1985, as amended
from time to time. The obligations of such Trust
are not personally binding upon, nor shall
resort be had
to the property of, any of the Trustees, shareholders,
officers, employees, or agents of such Trust, but the
Trust's property only shall be bound.
MASSMUTUAL PARTICIPATION INVESTORS
By
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(Title)
The foregoing is executed on behalf of MassMutual
Participation Investors, organized under a Declaration
of Trust, dated April 7, 1988, as amended from
time to time. The obligations of such Trust are not
personally binding upon, nor shall resort be had to the
property of, any of the Trustees, shareholders, officers,
employees, or agents of such Trust, but the Trust's
property only shall be bound.
MASSMUTUAL CORPORATE VALUE PARTNERS LIMITED
By Massachusetts Mutual Life Insurance Company, as Investment Manager
By
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(Title)