EXHIBIT 10.33
RESTRICTED SECURITIES AGREEMENT
THIS AGREEMENT is made as of July 31, 1997, between AnswerThink
Consulting Group, Inc., a Florida corporation (the "Company") and the individual
listed on the signature page hereof under the heading "Executive."
Executive has, pursuant to an Executive Agreement of even date
herewith, purchased 280,000 shares of the Common Stock, par value $0.001, of the
Company (the "Common Stock") and Executive and the Company desire to enter into
an agreement pursuant to which, subject to the terms and conditions contained
herein, the Executive will resell to the Company up to 40,000 shares of the
Common Stock. Certain definitions are set forth in Section 4 of this Agreement.
The parties hereto, intending to be legally bound, hereby agree as
follows:
1. VESTING OF RESTRICTED SHARES. Restricted Shares will become vested
upon a Sale of the Company or following a Public Offering in accordance with
this Section 1.
(a) If a Sale of the Company occurs on or prior to the sixth
anniversary of the date of this Agreement, then a number of Restricted Shares
will become vested immediately prior to such Sale of the Company in accordance
with the following schedule based on (i) the date of such Sale of the Company
and (ii) the Target Multiple after giving effect to such Sale of the Company:
DATE OF A SALE TARGET MULTIPLE VESTED UNVESTED
OF THE COMPANY ACHIEVED SHARES SHARES
- ---------------------------------- ------------------------- ---------- ------------
On or prior to the Second 10 or greater 40,000 0
Anniversary of this Agreement 6 2/3 but less than 10 26,666 13,334
3 1/3 but less than 6 2/3 13,334 26,666
less than 3 1/3 0 40,000
Between the Second and Fourth 10 or greater 40,000 0
Anniversary of this Agreement 6 2/3 but less than 10 26,666 13,334
less than 6 2/3 0 40,000
Between the Fourth and Fifth 10 or greater 40,000 0
Anniversary of this Agreement less than 10 0 40,000
(b) Following a Public Offering, all of the Restricted Shares
will vest on the first date (the "Vesting Date") that the average of the Trading
Prices of a share of the Common Stock on each of the 30 consecutive trading days
immediately preceding such date exceeds the Target Price.
(c) Restricted Shares which have become vested pursuant to
subsection (a) or (b) above on or prior to the earlier of (i) immediately prior
to a Sale of the Company or (ii) the sixth anniversary of the date of this
Agreement (such earlier date being hereinafter referred to as the "Determination
Date") are referred to herein as "Vested Shares," and all other Restricted
Shares are referred to herein as "Unvested Shares."
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2. TRANSFER OF RESTRICTED SHARES.
On the earlier of (i) the date that Executive ceases to be
employed by any of the Company and its Subsidiaries for any reason (the
"Termination") or (ii) the Determination Date, Executive shall be deemed to have
transferred to the Company for no consideration all Restricted Shares that are
then Unvested Shares and the Company shall be deemed to have accepted such
transfer.
3. RESTRICTIONS. Executive may not Transfer any interest in any
Restricted Shares except in accordance with the Executive Agreement.
4. DEFINITIONS.
"AFFILIATE" of any Investor means any direct or indirect general or
limited partner of such Investor, or any employee or owner thereof, or any other
person, entity or investment fund controlling, controlled by or under common
control with such Investor, and will include, without limitation, with respect
to Golder, Thoma, Cressey, Rauner Fund V, L.P., Golder, Thoma, Cressey, Rauner,
Inc. and its owners and employees.
"CASH INFLOWS" means, on any date, the sum of all cash, cash
equivalents, promissory obligations and the fair market value of other property
made by the Investors from and after the date of this Agreement with respect to
or in exchange for Investor Stock on or prior to such date.
"CASH OUTFLOWS" means, on any date, the sum of all cash payments and
the fair market value of all other distributions made by the Company from and
after the date of this Agreement with respect to or in exchange for Investor
Stock on or prior to such date, and, including, in the case of a Sale of the
Company expected to occur within five business days after such date, all cash
payments to be received by the Investors with respect to or in exchange for
Investor Stock after giving effect to the consummation of a Sale of the Company;
provided that in the event that property is distributed subject to contingencies
or restrictions that might affect its fair market value (e.g., non-publicly
traded stock, publicly traded stock subject to restrictions or limitations or a
right to receive future consideration pursuant to an earn out), such
distribution shall not be considered a "Cash Outflow" (and the fair market value
of such distribution shall pot be determined) until such distributed property is
first sold by an Investor (i) in an underwritten public offering of securities
or (ii) to any person (other than the Company) who is not an Affiliate of any
Investor or the Company. Notwithstanding the foregoing, the following shall not
be considered a distribution: (a) any redemption or repurchase by the Company of
any securities pursuant to an employment agreement, (b) any recapitalization or
exchange of securities of the Company and (c) any subdivision (by stock split or
otherwise) or any combination (by reverse stock split or otherwise) of any
outstanding stock.
"EXECUTIVE AGREEMENT" means the Executive Agreement dated as of the
date hereof between the Executive and the Company, as amended from time to time.
"INVESTORS" mean Golder, Thoma, Cressey, Rauner Fund V, L.P., Gator
Associates, Ltd., a Florida limited partnership, MG Capital Partners II, L.P., a
Delaware limited partnership, Tara Ventures, Ltd., a British Virgin Islands
corporation and each of their successors, and to the extent permitted to be a
subsequent holder of Convertible Preferred pursuant to the Purchase Agreement,
assigns.
"INVESTOR STOCK" shall have the meaning set forth in the Purchase
Agreement.
"OTHER RESTRICTED SHARES" means any shares of Common Stock (as
appropriately adjusted to reflect stock splits, stock dividends, combinations of
shares and other recapitalizations) subject to a Restricted Securities Agreement
substantially similar to this Agreement.
"PUBLIC OFFERING" means the sale in an underwritten public offering
registered under the Securities Act of shares of the Company's Common Stock
approved by the board of directors of the Company.
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"PURCHASE AGREEMENT" means that certain Purchase Agreement, dated as of
April 23, 1997, among the Company and the Investors.
"RESTRICTED SHARES" means 40,000 of the 280,000 shares of Common Stock
acquired by Executive under the Executive Agreement, as appropriately adjusted
to reflect stock splits, stock dividends, combinations of shares and other
recapitalizations.
"SALE OF THE COMPANY" means any transaction or series of transactions
pursuant to which any person(s) or entity(ies) other than an Investor and its
Affiliates in the aggregate acquire(s): (i) capital stock of the Company
possessing the voting power (other than voting rights accruing only in the event
of a default, breach or event of noncompliance) to elect a majority of the
Company's board of directors (whether by merger, consolidation, reorganization,
combination, sale or transfer of the Company's capital stock, shareholder or
voting agreement, proxy, power of attorney or otherwise) or (ii) all or
substantially all of the Company's assets determined on a consolidated basis;
provided that the term "Sale of the Company" shall not include any sale of
equity or debt securities by the Company in a private or public offering to
other investors selected by GTCR V. "Securities Act" means the Securities Act of
1933, as amended from time to time.
"SUBSIDIARY" means any corporation of which the Company owns securities
having a majority of the ordinary voting power in electing the board of
directors directly or through one or more subsidiaries.
"TARGET MULTIPLE" means Cash Outflows divided by Cash Inflows.
"TARGET PRICE" means $7.50 per share of Common Stock (as
proportionately adjusted for all subsequent stock splits, stock dividends and
other recapitalizations).
"TRADING PRICE" of a share of Common Stock means, on any trading day,
the closing sale price on the principal securities exchange on which shares of
Common Stock are then listed, or, if there have been no sales on such exchange
on such day, the average of the highest bid and lowest asked prices on such
exchange at the end of such day, or, if on any such day Common Stock is not so
listed, the average of the representative bid and asked prices listed in the
NASDAQ System as of 4:00 P.M., New York time.
"TRANSFER" means to sell, transfer, assign, pledge or otherwise dispose
of (whether with or without consideration and whether voluntarily or
involuntarily or by operation of law).
"UNDERLYING COMMON STOCK" means, at any time, the sum of: (i) the
number of shares Common Stock of the Company outstanding as of such time plus
(ii) the number of shares of Common Stock of the Company issuable upon the
exercise or conversion of the Convertible Preferred (as defined in the Purchase
Agreement) at such time.
5. LEGEND. The certificates representing the Restricted Shares will
bear a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND CERTAIN OTHER AGREEMENTS SET FORTH IN A
RESTRICTED SECURITIES AGREEMENT BETWEEN THE COMPANY AND AN EXECUTIVE OF
THE COMPANY DATED AS OF JULY 31, 1997. A COPY OF SUCH AGREEMENT MAY BE
OBTAINED BY THE HOLDER HEREOF AT THE COMPANY'S PRINCIPAL PLACE OF
BUSINESS WITHOUT CHARGE."
The Company will remove such legend from any Restricted Shares that are no
longer subject to Transfer or contribution pursuant to Section 2.
6. FURTHER ASSURANCES. The parties to this Agreement shall execute and
deliver such further instruments of conveyance and transfer, and take such
additional action, as the parties may at any
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time reasonably request in order to effectuate, consummate, confirm or evidence
the provisions of this Agreement.
7. STOCK POWER. In order to secure Executive's obligations hereunder,
on the date hereof, Executive shall execute and deliver to the Company a stock
power, endorsed in blank, relating to the certificates evidencing shares of
Restricted Shares. All such certificates and related stock powers shall be held
by the Company in trust, and the Company shall deliver them to the parties as
contemplated by the provisions contained in this Agreement.
8. NOTICES. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to the Executive at the address set forth below his
signature and to the Company at the address of its corporate headquarters or to
such other address or to the attention of such other person as the recipient
party has specified by prior written notice to the sending party.
9. GENERAL PROVISIONS.
(a) TRANSFERS IN VIOLATION OF AGREEMENT. Any Transfer or
attempted Transfer of any Restricted Shares in violation of any provision of
this Agreement shall be void, and the Company shall not record such Transfer on
its books or treat any purported transferee of such Restricted Shares as the
owner of such stock for any purpose.
(b) SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(c) COMPLETE AGREEMENT. This Agreement, those documents
expressly referred to herein and other documents of even date herewith embody
the complete agreement and understanding among the parties and supersede and
preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
(d) COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(e) SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, this Agreement shall bind and inure to the benefit of and be enforceable
by Executive, the Company and their respective successors and permitted assigns;
provided that the rights and obligations of Executive under this Agreement shall
not be assignable.
(f) CHOICE OF LAW. The corporate law of the State of Florida
will govern all questions concerning the construction, validity and
interpretation of this Agreement hereto, without giving effect to any choice of
law or conflict of law provision or rule that would cause the application of the
laws of any jurisdiction other than the State of Florida.
(g) REMEDIES. Each of the parties to this Agreement will be
entitled to enforce its rights under this Agreement specifically, to recover
damages and costs (including attorney's fees) caused by any breach of any
provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and that any
party may in its sole discretion apply to any court
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of law or equity of competent jurisdiction (without posting any bond or deposit)
for specific performance and/or other injunctive relief in order to enforce or
prevent any violations of any of the provisions of this Agreement.
(h) AMENDMENT AND WAIVER. The provisions of this Agreement may
be amended and waived only with the prior written consent of each of the Company
and the Executive.
(i) ADJUSTMENTS OF NUMBERS. All numbers set forth herein which
refer to share prices or number of shares will be appropriately adjusted to
reflect stock splits, stock dividends, combinations of shares and other
recapitalizations affecting the subject class of stock.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
ANSWERTHINK CONSULTING GROUP, INC.
By /s/ Ted A. Fernandez
---------------------------------
Ted A. Fernandez, President
EXECUTIVE
/s/ John Brennan
-----------------------------------
John Brennan
Address:
500 Palermo Avenue
Coral Gables, Florida 33134
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