EXHIBIT 10.35
EXECUTIVE AGREEMENT
THIS EXECUTIVE AGREEMENT is made as of July 31, 1997, between
AnswerThink Consulting Group, Inc., a Florida corporation (the "Company"), and
John Brennan ("Executive").
The Company and Executive desire to enter into an agreement pursuant to
which Executive will purchase, and the Company will sell, 280,000 shares of the
Company's Common Stock, par value $.001 per share (the "Common Stock"). All of
such shares of Common Stock and all shares of Common Stock hereafter acquired by
Executive are referred to herein as "Executive Stock." Certain definitions are
set forth in Section 10 of this Agreement.
The parties hereto agree as follows:
PROVISIONS RELATING TO EXECUTIVE STOCK
1. Purchase and Sale of Executive Stock.
(a) Upon execution of this Agreement, Executive will purchase,
and the Company will sell, 280,000 shares of Common Stock at a price of $0.0025
per share. The Company will deliver to Executive the certificates representing
such Executive Stock, and Executive will deliver to the Company a cashier's or
certified check or wire transfer of funds in the aggregate amount of $700.
(b) Within 30 days after Executive purchases Common Stock
pursuant to Section 1 (a) from the Company, Executive will make an effective
election with the Internal Revenue Service under Section 83(b) of the Internal
Revenue Code and the regulations promulgated thereunder in the form of Annex A
attached hereto.
(c) In connection with the purchase and sale of the Executive
Stock hereunder, Executive represents and warrants to the Company that:
(i) The Executive Stock to be acquired by Executive
pursuant to this Agreement will be acquired for Executive's own account
and not with a view to, or intention of, distribution thereof in
violation of the Securities Act, or any applicable state securities
laws, and the Executive Stock will not be disposed of in contravention
of the Securities Act or any applicable state securities laws.
(ii) Executive is an "accredited investor" and a
sophisticated investor for purposes of applicable foreign and U.S.
federal and state securities laws and regulations and is able to
evaluate the risks and benefits of the investment in the Executive
Stock.
(iii) Executive is able to bear the economic risk of
his investment in the Executive Stock for an indefinite period of time
because the Executive Stock has not been registered under the
Securities Act and, therefore, cannot be sold unless subsequently
registered under the Securities Act or an exemption from such
registration is available.
(iv) Executive has had an opportunity to ask
questions and receive answers concerning the terms and conditions of
the offering of Executive Stock and has had full access to such other
information concerning the Company as he has requested.
(v) This Agreement and each of the other agreements
contemplated hereby constitutes the legal, valid and binding obligation
of Executive, enforceable in accordance with its terms and Executive's
employment by the Company, and the execution, delivery and performance
of this Agreement and such other agreements by Executive does not and,
to the knowledge of Executive, will not conflict with, violate or cause
a breach of any agreement, contract or instrument to which Executive is
a party (including, but not limited to, any agreement referred to in
clause (vi) below) or any judgment, order or decree to which Executive
is subject and Executive further represents and warrants that Executive
believes that Executive is not now in breach of any such agreement,
contract or instrument to which Executive is a party.
(vi) Executive is not a party to or bound by any
other employment agreement, noncompete agreement or confidentiality
agreement.
(vii) Executive is a resident of the State of
Florida.
(d) As an inducement to the Company to issue the Executive
Stock to Executive, and as a condition thereto, Executive acknowledges and
agrees that (i) neither the issuance of the Executive Stock to Executive nor any
provision contained herein shall entitle Executive to remain in the employment
of the Company and its Subsidiaries or affect the right of the Company to
terminate Executive's employment as contemplated by this Agreement at any time
for any reason and (ii) he will take (or omit to take) all such actions as are
necessary so that the representation and warranty made by Executive and
contained in Section 1(d)(v) remains true and correct at all times as if such
representation and warranty were remade by Executive on each date following the
date of this Agreement.
2. Vesting of Certain Executive Stock.
(a) Except as otherwise provided in Section 2(b) below,
240,000 shares of Common Stock purchased under Section 1(a) (the "Time Vesting
Common Stock") will become vested in accordance with the following schedule, if
as of each such date Executive is still employed by the Company or any of its
Subsidiaries:
CUMULATIVE PERCENTAGE OF
TIME VESTING COMMON
DATE STOCK TO BE VESTED
- --------------------------------------------- -------------------------
2nd Anniversary of the date of this Agreement 50%
3rd Anniversary of the date of this Agreement 75%
4th Anniversary of the date of this Agreement 100%
(b) If (but only if) Executive's employment is terminated by
the Company without Cause, the aggregate number of shares of Time Vesting Common
Stock that shall be deemed vested shall equal (i) the number of shares which
have vested pursuant to Section 2(a) as of the date of such termination, which
shall in no event be less than 140,000, plus (ii) 50% of the excess of (x)
280,000 over (y) the number of shares included in clause (i) above. Immediately
prior to the occurrence of a Sale of the Company, if as of such time Executive
is still employed by the Company or any of its Subsidiaries, all shares of Time
Vesting Common Stock which have not yet become vested shall become vested at the
time of such event.
(c) Shares of Non Restricted Executive Stock which have become
vested pursuant subsections (a) or (b) above are referred to herein as "Vested
Shares," and all other shares of Non Restricted Executive Stock are referred to
herein as "Unvested Shares." In addition, Restricted Shares which have become
vested pursuant to the Restricted Securities Agreement are referred to herein as
"Vested Restricted Shares."
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3. Repurchase Option.
(a) In the event that Executive ceases to be employed by any
of the Company and its Subsidiaries for any reason (the "Termination"), the Non
Restricted Executive Stock (whether held by Executive or one or more of
Executive's transferees) and the Vested Restricted Shares will be subject to
repurchase by the Company, the Investors and the Other Executives pursuant to
the terms and conditions set forth in this Section 3 (the "Repurchase Option").
Any shares subject to repurchase pursuant to the Repurchase Option under this
Agreement are referred to herein as "Subject Shares."
(b) In the event of Termination: (i) The purchase price for
each Unvested Share of Common Stock will be Executive's Original Cost for such
share, (ii) the purchase price for each Vested Share of Common Stock and for
each Vested Restricted Share will be the Fair Market Value for such share and
(iii) the purchase price for each share of Common Stock will be the Liquidation
Value of such share (as defined in the Company's Articles of Incorporation).
(c) The Board may elect to purchase all or any portion of any
class of the Subject Shares (including all or any portion of the Unvested Shares
and Vested Shares of such class) by delivering written notice (the "Repurchase
Notice") to the holder or holders of the Executive Stock within 90 days after
the Termination. The Repurchase Notice will set forth the number of Subject
Shares (including Unvested Shares and Vested Shares) of each class to be
acquired from each holder, the aggregate consideration to be paid for such
shares and the proposed time and place for the closing of the transaction. The
number of shares to be repurchased by the Company shall first be satisfied to
the extent possible from the shares held by Executive at the time of delivery of
the Repurchase Notice. If the number of shares of any class then held by
Executive is less than the total number of shares of such class which the
Company elects and is entitled to purchase pursuant to the Repurchase Option,
the Company shall purchase the remaining shares of such class elected to be
purchased from the other holder(s), pro rata according to the number of shares
of such class held by such other holder(s) at the time of delivery of such
Repurchase Notice (determined as nearly as practicable to the nearest share).
The number of Unvested Shares and Vested Shares of each class to be repurchased
hereunder will be allocated among Executive and the other holders of
Non-Restricted Executive Stock (if any) pro rata according to the number of
shares of Non Restricted Executive Stock to be purchased from such person.
(d) If for any reason the Company does not elect to purchase
all of the Subject Shares pursuant to the Repurchase Option, each of the
Investors and the Other Executives shall be entitled to exercise the Repurchase
Option for the Subject Shares the Company has not elected to purchase (the
"Available Shares"). As soon as practicable after the Company has determined
that there will be Available Shares, but in any event within 120 days after the
Termination, the Company shall give written notice (the "Option Notice") to the
Investors and the Other Executives setting forth the number of Available Shares
and the purchase price for the Available Shares. Each Investor and each Other
Executive may elect to purchase any or all of the Available Shares by giving
written notice to the Company within one month after the Option Notice has been
given by the Company. As soon as practicable, and in any event within ten days
after the expiration of the one month period set forth above, the Company shall
notify each holder of Subject Shares as to the number of shares being purchased
from such holder by the Investors and the Other Executives (the "Supplemental
Repurchase Notice"). At the time the Company delivers the Supplemental
Repurchase Notice to such holder(s), the Company shall also deliver written
notice to the Investors and the Other Executives setting forth the number of
shares each such Person is entitled to purchase, the aggregate purchase price
and the time and place of the closing of the transaction. If the Investors and
Other Executives elect to purchase an aggregate number of any class or type
(i.e., vested or unvested) of Subject Shares greater than the number of such
class or type of Subject Shares which such Persons are entitled to purchase
pursuant to the Repurchase Option, such class or type shall be allocated among
the Investors and Other Executives pro rata based upon the number of shares of
Underlying Common Stock owned by each such Person (but in no event shall the pro
rata share of any such Person result in such Person acquiring a number of
Subject Shares of any class or type in excess of the number of such class or
type requested to be purchased by such Person). If the number of
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shares of any class then held by Executive is less than the total number of
shares of such class which the Investors and the Other Executives have elected
and are entitled to purchase pursuant to the Repurchase Option, such Persons
shall purchase the remaining shares elected to be purchased from the other
holder(s) of Non Restricted Executive Stock under this Agreement, pro rata
according to the number of shares of Non Restricted Executive Stock of such
class held by such other holder(s) at the time of delivery of such Repurchase
Notice (determined as nearly as practicable to the nearest share).
(e) The closing of the purchase of Subject Shares pursuant to
the Repurchase Option shall take place on the date designated by the Company in
the Repurchase Notice or Supplemental Repurchase Notice, which date shall not be
more than one month nor less than five days after the delivery of the last such
notice. The Company will pay for the Subject Shares to be purchased by it
pursuant to the Repurchase Option by first offsetting amounts outstanding under
any bona fide debts owed by Executive to the Company; upon full repayment of
such bona fide debts, the Company will make payment by, subject to Subsection
(f) below, a check or wire transfer of funds. Each Investor and Other Executive
will pay for Subject Shares to be purchased pursuant to the Repurchase Option by
check or wire transfer of funds. Each purchaser of Subject Shares pursuant to
the Repurchase Option will be entitled to receive customary representations and
warranties from the sellers regarding such sale and to require all sellers'
signatures be guaranteed.
(f) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Subject Shares by the Company shall be subject to
applicable restrictions contained in the Florida Business Corporation Act and in
the Company's and its Subsidiaries' debt and equity financing agreements. If any
such restrictions prohibit the repurchase of Subject Shares hereunder which the
Company is otherwise entitled or required to make, the Company may make such
repurchases as soon as it is permitted to do so under such restrictions.
4. Restrictions on Transfer of Executive Stock.
(a) RETENTION OF NONRESTRICTED EXECUTIVE STOCK. Until the
fourth anniversary of the date of this Agreement, Executive shall not sell,
transfer, assign, pledge or otherwise dispose of any interest in any shares of
Executive Stock, except for Exempt Transfers (as defined in Section 4(b) below).
(b) TRANSFER OF EXECUTIVE STOCK. Subject to Section 4(a)
above, Executive shall not Transfer any interest in any shares of Executive
Stock, except pursuant to: (i) the provisions of Section 3 hereof, a Public
Sale, a Sale of the Company or the provisions of the Restricted Securities
Agreement ("Exempt Transfers") or (ii) the provisions of this Section 4;
provided that in no event shall any Transfer of Executive Stock pursuant to this
clause (ii) be made for any consideration other than cash payable upon
consummation of such Transfer; and provided further that Unvested Shares may
only be Transferred pursuant to the provisions of Section 3 hereof; and provided
further that Restricted Shares that remain unvested under the Restricted
Securities Agreement may only be Transferred pursuant to the Restricted
Securities Agreement. Executive will not consummate any Transfer permitted by
clause (ii) of the preceding sentence until 60 days after the Sale Notice has
been given to the Company, the Investors and the Other Executives, unless the
parties to the Transfer have been finally determined pursuant to this Section 4
prior to the expiration of such 60 day period. (The date of the first to occur
of such events is referred to herein as the "Authorization Date").
(c) FIRST REFUSAL RIGHTS. The Company may elect to purchase
all (but not less than all) of the shares of Executive Stock to be transferred
upon the same terms and conditions as those set forth in the Sale Notice by
delivering a written notice of such election to Executive, the Investors and
Other Executives within 20 days after the Sale Notice has been given to the
Company. If the Company has not elected to purchase all of the Executive Stock
to be transferred, each Investor and each Other Executive may elect to purchase
all or any portion of the Executive Stock to be transferred upon the same terms
and conditions as those set forth in the Sale Notice by giving written notice of
such election to Executive within 40 days after the Sale Notice has been given
to the Investors and each Other Executive. If the Investors
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and the Other Executives elect to purchase an aggregate number of any class of
Executive Stock greater than the number of such class of Executive Stock
specified in the Sale Notice, such number of shares of Executive Stock shall be
allocated among the Investors pro rata based upon the number of shares of
Underlying Common Stock owned by each such Investor and Other Executive (but in
no event shall the pro rata share of any Investor or Other Executive result in
such Investor or Other Executive acquiring a number of any class of Executive
Stock in excess of the number of such class of Executive Stock requested by such
Investor or Other Executive). If neither the Company nor, in the aggregate, the
Investors and the Other Executives elect to purchase all of the shares of
Executive Stock specified in the Sale Notice, Executive may transfer the shares
of Executive Stock specified in the Sale Notice, subject to the provisions of
Section 4(d) below, at a price and on terms no more favorable to the
transferee(s) thereof than specified in the Sale Notice during the 60 day period
immediately following the Authorization Date. Any shares of Executive Stock not
transferred within such 60 day period will be subject to the provisions of this
Section 4(c) upon subsequent transfer. The Company may pay the purchase price
for such shares by offsetting amounts outstanding under any bona fide debts owed
by Executive to the Company with the balance, if any, subject to Section 3(f)
(except "Subject Shares" shall be deemed to refer to "Executive Shares") by
check or wire transfer of funds.
(d) PARTICIPATION RIGHTS. If neither the Company nor, in the
aggregate, the Investors and Other Executives have elected to purchase all of
the Executive Stock specified in the Sale Notice pursuant to Section 4(c) above,
each Investor and Other Executive may elect to participate in the contemplated
Transfer by delivering written notice to Executive and the Company within 50
days after receipt by such Investor or Other Executive of the Sale Notice. If
any Investor or Other Executive has elected to participate in such sale,
Executive and such Investor or Other Executive will be entitled to sell in the
contemplated sale, at the same price and on the same terms, a number of shares
of the Company's Common Stock equal to the product of: (i) the quotient
determined by dividing the percentage of the Company's Underlying Common Stock
held by such Person, by the aggregate percentage of the Company's Underlying
Common Stock owned by Executive (including both Vested and Unvested Shares) and
the Investors and the Other Executives participating in such sale and (ii) the
number of shares of Common Stock to be sold in the contemplated sale. Any
purchaser in a sale subject to this Section 4(d) will be required to purchase
from each Investor and Other Executive electing to participate, at such Person's
election, a portion of the Convertible Preferred held by such Person equal to
the greater of the percentage of (x) such Person's Convertible Preferred being
sold in such transaction and (y) Executive's Common Stock being sold in such
transaction.
For example, IF:
(i) the Sale Notice contemplated a sale of 100 shares
of Common Stock;
(ii) Executive was at such time the owner of 200
shares of Underlying Common Stock (which was equal to 20% of the total
Underlying Common Stock); and
(iii) one Investor elected to participate and that
Investor owned 600 shares of Underlying Common Stock (which was equal
to 60% of the total Underlying Common Stock) and 250 shares of
Convertible Preferred;
THEN
(A) Executive would be entitled to sell 25 shares of
Common Stock (20% 80% x 100 shares); and
(B) that Investor would be entitled to sell 75 shares
of Common Stock (60% /divided by/ 80% x 100 shares) and 31.25 shares of
Convertible Preferred (the same percentage of that
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Investor's Convertible Preferred as the percentage of that Investor's
Common Stock being sold, i.e., 12.5%).
Executive will use his best efforts to obtain the agreement of the prospective
transferee(s) to the participation of each Investor and Other Executive desiring
to participate in the contemplated Transfer and will not transfer any Executive
Stock to the prospective transferee(s) if such trans feree(s) refuses to allow
the participation of such Investor and Other Executive.
(e) CERTAIN PERMITTED TRANSFERS. The restrictions contained in
this Section 4 will not apply with respect to: (i) transfers of shares of
Executive Stock pursuant to applicable laws of descent and distribution or (ii)
transfer of shares of Executive Stock among Executive's Family Group; provided
that such restrictions will continue to be applicable to the Executive Stock
after any such transfer and the transferees of such Executive Stock have agreed
in writing to be bound by the provisions of this Agreement. In addition,
following the completion of an underwritten Public Offering, Executive, in his
sole discretion, may pledge any of his Executive Stock (other than Unvested
Shares or Restricted Shares that have not vested under the Restricted Securities
Agreement) as collateral for a loan so long as the pledgee of such stock and the
Executive enter in a pledge agreement in form and substance reasonably
satisfactory to the Board, pursuant to which pledgee, among other things, agrees
that pledgee may only sell such Executive Stock in a Public Sale.
(f) NO TRANSFERS OF RESTRICTED SHARES. Notwithstanding
anything contained herein to the contrary (including, without limitation, the
other provisions of this Section 4), Executive may not transfer, assign, pledge
or otherwise dispose of any interest in any Unvested Shares (except pursuant to
Section 3 hereof) or any Restricted Shares that remain unvested under the
Restricted Securities Agreement (except pursuant to the Restricted Securities
Agreement).
(g) TERMINATION OF RESTRICTIONS. The restrictions on the
Transfer of shares of Executive Stock set forth in this Section 4 will continue
with respect to each such share of Executive Stock until the date on which such
Executive Stock has been transferred in a transaction permitted by this Section
4 (except in a transaction contemplated by Section 4(e)); provided that in any
event such restrictions will terminate on a Sale of the Company.
5. ADDITIONAL RESTRICTIONS ON TRANSFER OF EXECUTIVE STOCK.
(a) LEGEND. The certificates representing the Executive Stock
will bear a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
AS OF JULY 31, 1997, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN
EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER, CERTAIN REPURCHASE OPTIONS AND CERTAIN OTHER AGREEMENTS SET
FORTH IN AN EXECUTIVE 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."
(b) OPINION OF COUNSEL. No holder of Executive Stock may sell,
transfer or dispose of any Executive Stock (except pursuant to an effective
registration statement under the Securities Act) without first delivering to the
Company an opinion of counsel (reasonably acceptable in form and
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substance to the Company) that neither registration nor qualification under the
Securities Act and applicable state securities laws is required in connection
with such transfer.
PROVISIONS RELATING TO EMPLOYMENT
6. EMPLOYMENT. The Company agrees to employ Executive and Executive
accepts such employment for the period beginning as of the date hereof and
ending upon the earlier of three years from the date hereof (or such later date
as agreed by Executive and the Company) and termination pursuant to Section 7(b)
hereof (the "Employment Period").
(a) SALARY, BONUS AND BENEFITS. During the Employment Period,
the Company will pay Executive a base salary (the "Annual Base Salary") as the
Board may designate from time to time, at the rate of not less than $200,000 per
annum. Executive will also be eligible to earn a bonus pursuant to a bonus plan
adopted by the Board for each fiscal year. Executive's Annual Base Salary for
any partial year will be prorated based upon the number of days elapsed in such
year. In addition, during the Employment Period, Executive will be entitled to
such other benefits approved by the Board and made available to the Company's
senior management.
(b) TERMINATION. The Employment Period will continue until
Executive's resignation, disability (as determined by the Board in its good
faith judgment) or death or until the Board determines in its good faith
judgment that termination of Executive's employment is in the best interests of
the Company. If Executive's employment is terminated by the Company without
Cause, during the one year period commencing on the date of termination (the
"Initial Period"), the Company shall pay Executive an aggregate amount equal to
Executive's Annual Base Salary, payable in equal installments on the Company's
regular salary payment dates (the "Severance Payments"). In addition, the
Company shall have the option, by delivering written notice to Executive within
90 days after the date of termination, to extend the severance period up to the
second anniversary of the date of termination (the "Extended Period"). During
the Extended Period, the Company will continue to make Severance Payments at
same annual rate to Executive. Notwithstanding the foregoing and without in any
way modifying the provisions of Section 9 hereof, from and after the first date
that Executive becomes employed with another Person, the Company, at its option,
may eliminate or otherwise reduce the amount of Severance Payments otherwise
required to be made pursuant to this Section 7(b).
7. CONFIDENTIAL INFORMATION.
(a) Executive acknowledges that the information, observations
and data obtained by him concerning the business and affairs of the Company and
its affiliates and its and their predecessors during the course of his
performance of services for, or employment with, any of the foregoing persons
(whether or not compensated for such services) are the property of the Company
and its affiliates, including information concerning acquisition opportunities
in or reasonably related to the Company's business or industry of which
Executive becomes aware during such period, and any Initial Period or Extended
Period. Therefore, Executive agrees that he will not at any time (whether during
or after the Employment Period) disclose to any unauthorized person or, directly
or indirectly, use for his own account, any of such information, observations or
data without the Board's consent, unless and to the extent that the
aforementioned matters become generally known to and available for use by the
public other than as a direct or indirect result of Executive's acts or
omissions to act or the acts or omissions to act of other senior or junior
management employees of the Company; or any of its Subsidiaries. Executive
agrees to deliver to the Company at the termination of his employment, or at any
other time the Company may request in writing (whether during or after the
Employment Period), all memoranda, notes, plans, records, reports and other
documents, regardless of the format or media (and copies thereof), relating to
the business of the Company and its affiliates and its and their predecessors
(including, without limitation, all acquisition prospects, lists and contact
information) which he may then possess or have under his control.
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(b) INVENTIONS AND PATENTS. Executive acknowledges that all
inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether or not
patentable) that relate to the Company's or any of its Subsidiaries' actual or
anticipated business, research and development or existing or future products or
services and that are conceived, developed, made or reduced to practice by
Executive while employed by the Company and its Subsidiaries or any of its and
their predecessors ("Work Product") belong to the Company or such Subsidiary and
Executive hereby assigns, and agrees to assign, all of the above to the Company
or such Subsidiary. Any copyrightable work prepared in whole or in part by
Executive in the course of his work for any of the foregoing entities shall be
deemed a "work made for hire" under the copyright laws, and the Company or such
Subsidiary shall own all rights therein. To the extent that any such
copyrightable work is not a "work made for hire," Executive hereby assigns and
agrees to assign to Company or such Subsidiary all right, title and interest,
including without limitation, copyright in and to such copyrightable work.
Executive shall promptly disclose such Work Product and copyrightable work to
the Board and perform all actions reasonably requested by the Board (whether
during or after the Employment Period) to establish and confirm the Company's or
its Subsidiary's ownership (including, without limitation, assignments,
consents, powers of attorney and other instruments).
8. NONCOMPETITION AND NONSOLICITATION
(a) NONCOMPETITION. Executive acknowledges that in the course
of his employment with predecessors of the Company and its affiliates, he has
become familiar with, and during the course of his employment with the Company
and its Subsidiaries he will become familiar with, the Company's and its
affiliates' trade secrets and with other confidential information concerning the
Company and its affiliates and that Executive's services will be of special,
unique and extraordinary value to the Company and its Subsidiaries and that the
Company's ability to accomplish its purposes and to successfully pursue its
business plan and compete in the marketplace depend substantially on the skills
and expertise of Executive. Therefore, and in further consideration of the
compensation being paid to Executive hereunder, and the Vesting Common Stock
being issued to Executive hereunder, Executive agrees that, during the
Employment Period and any Initial Period or Extended Period, so long as
Severance Payments are being made unless Severance Payments are not required to
be made pursuant to the last sentence of Section 7(b) (the "Noncompete Period"),
he shall not directly or indirectly own, manage, control, participate in,
consult with, render services for, or in any manner engage in any business
competing with the businesses of the Company, its Subsidiaries, or any business
in which the Company or its Subsidiaries has commenced negotiations or has
requested and received information relating to the acquisition of such business
within eighteen months prior to the termination of the Executive's employment
with the Company, in any country where the Company, its Subsidiaries, or other
aforementioned business conducts business.
(b) NONSOLICITATION. During the two years following
Termination, Executive shall not directly or indirectly through another entity:
(i) induce or attempt to induce any employee of the Company or any Subsidiary to
leave the employ of the Company or such Subsidiary, or in any way willfully
interfere with the relationship between the Company or any Subsidiary and any
employee thereof (ii) induce or attempt to induce any customer, supplier,
licensee or other business relation of the Company or any Subsidiary to cease
doing business with the Company or such Subsidiary, or in any way interfere with
the relationship between any such customer, supplier, licensee or business
relation and the Company or any Subsidiary or (iii) initiate or engage in any
discussions regarding an acquisition of, or Executive's employment (whether as
an employee, an independent contractor or otherwise) by, any businesses in which
the Company or any of its Subsidiaries has entertained discussions or has
requested and received information relating to the acquisition of such business
by the Company or its Subsidiaries upon or within the 18 month period prior to
the termination of the Executive's employment with the Company.
(c) ENFORCEMENT. If, at the time of enforcement of Section 8
or 9 of this Agreement, a court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree that
the maximum duration, scope or geographical area reasonable under such
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circumstances shall be substituted for the stated period, scope or area and that
the court shall be allowed to revise the restrictions contained herein to cover
the maximum duration, scope and area permitted by law. Because Executive's
services are unique and because Executive has access to confidential
information, the parties hereto agree that money damages would be an inadequate
remedy for any breach of this Agreement. Therefore, in the event a breach or
threatened breach of this Agreement, the Company or its successors or assigns
may, in addition to other rights and remedies existing in their favor, apply to
any court of competent jurisdiction for specific performance and/or injunctive
or other relief in order to enforce, or prevent any violations of, the
provisions hereof (without posting a bond or other security).
GENERAL PROVISIONS
9. 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.
"CAUSE" means: (i) the commission of a felony or a crime
involving moral turpitude or the commission of any other act or omission
involving dishonesty or fraud with respect to the Company or any of its
Subsidiaries or any of their customers or suppliers, (ii) conduct tending to
bring the Company or any of its Subsidiaries into substantial public disgrace or
disrepute, (iii) substantial and repeated failure to perform duties of the
office held by Executive as reasonably directed by the Board, and such failure
is not cured within 30 days after Executive receives notice thereof from the
Board, (iv) gross negligence or willful misconduct with respect to the Company
or any of its Subsidiaries or (v) any breach of Section 8 or 9 of this
Agreement.
"CONVERTIBLE PREFERRED" means the Company's Class A
Convertible Preferred Stock, par value $0.001 per share.
"EXECUTIVE'S FAMILY GROUP" means Executive's spouse and
descendants (whether natural or adopted), any trust solely for the benefit of
Executive and/or Executive's spouse and/or descendants and any retirement plan
for the Executive.
"EXECUTIVE STOCK" will continue to be Executive Stock in the
hands of any holder other than Executive (except for the Company, an Investor,
an Other Executive and transferees in a Public Sale), and except as otherwise
provided herein, each such other holder of Executive Stock will succeed to all
rights and obligations attributable to Executive as a holder of Executive Stock
hereunder. Executive Stock will also include shares of the Company's capital
stock issued with respect to Executive Stock by way of a stock split, stock
dividend or other recapitalization.
"FAIR MARKET VALUE" of each share of Executive Stock means the
average of the closing prices of the sales of the Common Stock on all securities
exchanges on which such Common Stock may at the time be listed, or, if there
have been no sales on any such exchange on any day, the average of the highest
bid and lowest asked prices on all such exchanges at the end of such day, or, if
on any day such 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,
or, if on any day such Common Stock is not quoted in the NASDAQ System, of the
average of the highest bid and lowest asked prices on such day in the domestic
over counter market as reported by the National Quotation Bureau Incorporated,
or any similar successor organization, in each such case averaged over a period
of 21 days consisting of the day as of which the Fair Market Value is being
determined and the 20 consecutive business days prior to such day. If at any
time such Common Stock is not listed on any securities exchange or quoted in the
NASDAQ
9
System or the over counter market, the Fair Market Value will be the fair value
of such Common Stock determined in good faith by the Board. If the Executive
reasonably disagrees with such determination, the Board and the Executive will
negotiate in good faith to agree on such Fair Market Value. If such agreement is
not reached within 30 days after the delivery of the Repurchase Notice or the
Supplemental Repurchase Notice, Fair Market Value shall be determined by an
appraiser jointly selected by the Board and the Executive, which appraiser shall
submit to the Board and the Executive a report within 30 days of its engagement
setting forth such determination. If the parties are unable to agree on an
appraiser within 45 days after delivery of the Repurchase Notice or the
Supplemental Repurchase Notice, within seven days, each party shall submit the
names of four nationally recognized investment banking firms, and each party
shall be entitled to strike two names from the other party's list of firms, and
the appraiser shall be selected by lot from the remaining four investment
banking firms. The expenses of such appraiser shall be borne by the Executive
unless the appraiser's valuation is not less than 10% greater than the amount
determined by the Board, in which case, the costs of the appraiser shall be
borne by the Company. The determination of such appraiser shall be final and
binding upon all parties. If the Repurchase Option is exercised within 90 days
after a Termination, then Fair Market Value shall be determined as of the date
of such Termination; thereafter, Fair Market Value shall be determined as of the
date the Repurchase Option is exercised.
"INVESTORS" mean Golder, Thoma, Cressey, Rauner Fund V, L.P.
("GTCRV"), MG Capital Partners, II, L.P., Gator Associates, Ltd. and Tara
Ventures, Ltd. and each of their successors, and to the extent permitted to be a
subsequent holder of Common Stock pursuant to the Purchase Agreement, assigns.
"ORIGINAL COST" means with respect to each share of Common
Stock purchased hereunder, $0.01 (as proportionately adjusted for all subsequent
stock splits, stock dividends and other recapitalizations).
"OTHER EXECUTIVES" means each person who is subject to a
Senior Management Agreement so long as such person is employed by the Company.
The term "Other Executive" does not include the Executive. In addition, it is
agreed that the Executive is not an Additional Executive as such term is defined
in the Shareholders Agreement.
"NON RESTRICTED EXECUTIVE STOCK" means Executive Stock other
than Restricted Shares.
"PERSON" means an individual, a partnership, a limited
liability company, a corporation, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization and a governmental entity
or any department, agency or political subdivision thereof.
"PUBLIC SALE" means any sale pursuant to a registered public
offering under the Securities Act or any sale to the public pursuant to Rule 144
promulgated under the Securities Act effected through a broker, dealer or market
maker.
"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.
"RESTRICTED SECURITIES AGREEMENT" means the Restricted
Securities Agreement dated as of the date hereof between the Executive and the
Investors, as amended from time to time.
"RESTRICTED SHARES" means 40,000 shares of Common Stock
purchased under Section l(a) hereof, which shares are subject to the Restricted
Securities Agreement.
"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
10
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.
"SHAREHOLDERS AGREEMENT" means the Shareholders Agreement
dated as of the date hereof among the Executive, the Other Executives, the
Investors, certain other individuals, and the Company, 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.
"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 of 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 at such time.
10. 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 Investor and to each Executive at the
addresses indicated on the Schedule of Holders attached to the Shareholders
Agreement 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.
11. GENERAL PROVISIONS.
(a) TRANSFERS IN VIOLATION OF AGREEMENT. Any Transfer or
attempted Transfer of any Executive Stock 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 Executive Stock 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. Executive hereby releases the Company and its affiliates and its and
their predecessors from any
11
obligation or liability the Company or any of its affiliates or its or their
predecessors owes or owed to Executive or any of his affiliates and related
persons prior to the date hereof.
(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, the Investors the Other Executives and their
respective successors and permitted assigns (including subsequent holders of
Executive Stock); provided that the rights and obligations of Executive under
this Agreement shall not be assignable except in connection with a permitted
transfer of Executive Stock hereunder.
(f) CHOICE OF LAW. The corporate law of the State of Florida
will govern all questions concerning the relative rights of the Company and its
shareholders. All other questions concerning the construction, validity and
interpretation of this Agreement and the exhibits hereto will be governed by and
construed in accordance with the internal laws of the State of Florida (in the
case of Sections 7, 8 and 9 hereof) and Illinois (in all other cases), without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of Illinois, the State of Florida or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of Florida (in the case of Sections 7, 8 and 9 hereof) or the State of Illinois
(or the State of Florida, in all other cases).
(g) REMEDIES. Each of the parties to this Agreement (including
the Investors and the Other Executives) 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 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 at least 70% of the
Company's board of directors and the Executive.
(i) BUSINESS DAYS. If any time period for giving notice or
taking action hereunder expires on a day which is a Saturday, Sunday or holiday
in the state in which the Company's chief executive office is located, the time
period shall be automatically extended to the business day immediately following
such Saturday, Sunday or holiday.
(j) INDEMNIFICATION AND REIMBURSEMENT OF PAYMENTS ON BEHALF OF
EXECUTIVE. The Company and its Subsidiaries shall be entitled to deduct or
withhold from any amounts owing from the Company or any of its Subsidiaries to
the Executive any federal, state, local or foreign withholding taxes, excise
taxes, or employment taxes ("Taxes") imposed with respect to the Executive's
compensation or other payments from the Company or any of its Subsidiaries or
the Executive's ownership interest in the Company, including, but not limited
to, wages, bonuses, dividends, the receipt or exercise of stock options and/or
the receipt or vesting of restricted stock.
The Executive shall indemnify the Company and its Subsidiaries for any amounts
paid with respect to any such Taxes, together with any interest, penalties and
related expenses thereto.
(k) TERMINATION. This Agreement (except for the provisions of
Section 7(a)) shall survive the termination of Executive's employment with the
Company and shall remain in full force and effect after such termination.
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(l) ADJUSTMENTS OF NUMBERS. All numbers set forth herein which
refer to share prices or numbers or amounts 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
/s/ JOHN BRENNAN
------------------------------------
John Brennan