EXECUTION COPY
EXHIBIT 10.5
SECOND AMENDED AND RESTATED
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REGISTRATION RIGHTS AGREEMENT
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(FORMER RTI SHAREHOLDERS)
THIS SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Amended and Restated Registration Rights Agreement") is made as of May 5, 1998,
by and among AnswerThink Consulting Group, Inc., a Florida corporation (the
"COMPANY"), AnswerThink Consulting Group, Inc., a Delaware corporation and a
wholly owned subsidiary of the Company("ACG-DELAWARE"), and each of the
shareholders listed on SCHEDULE 1 hereto (the "SHAREHOLDERS").
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WHEREAS, the Company and the Shareholders entered into that certain
Registration Agreement dated as of August 1, 1997 (the "PRIOR AGREEMENT")
whereby the Shareholders had certain registration rights with respect to shares
of the Company's common stock, par value $.001 per share (the "COMMON STOCK"),
owned or acquired by the Shareholders;
WHEREAS, the Company, ACG-Delaware and the Shareholders entered into that
certain Amended and Restated Registration Rights Agreement dated as of April 13,
1998 (the "AMENDMENT"), which amended and restated the Prior Agreement;
WHEREAS, the Shareholders who are executing this Amended and Restated
Registration Rights Agreement (the "REQUIRED SHAREHOLDERS") hold at least 70% of
the "Registrable Securities," as such term is defined in the Prior Agreement;
and
WHEREAS, the Company, ACG-Delaware and the Required Shareholders desire to
amend and restate the Amendment upon the terms and conditions set forth herein.
NOW, THEREFORE, the Company, ACG-Delaware and the Required Shareholders
hereby agree as follows:
1. EFFECTIVE TIME; TERMINATION OF PRIOR AGREEMENT.
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(a) EFFECTIVE TIME. This Amended and Restated Registration Rights
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Agreement shall be effective upon the signing of the underwriting agreement
relating to the Company's initial public offering (the "EFFECTIVE TIME").
(b) TERMINATION OF PRIOR AGREEMENT. The Prior Agreement shall be
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terminated at the Effective Time.
2. PIGGYBACK REGISTRATIONS.
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(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register any of
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its securities under the Securities Act of 1933, as amended (the "SECURITIES
ACT") (other than pursuant to a registration of securities on Form S-8 under the
Securities Act (or a successor form to either of such Forms) or pursuant to a
"Demand Registration," as such term is defined in that certain Registration
Agreement dated as of April 23, 1997 by and among the Company and certain
investors in and executives of the Company (as such Registration Agreement may
be amended or amended and restated from time to time, the "INVESTORS AND
EXECUTIVES REGISTRATION RIGHTS AGREEMENT")), and the registration form to be
used may be used for the registration of Registrable Securities (as defined
below) (a "PIGGYBACK REGISTRATION"), the Company shall give prompt written
notice to all holders of Registrable Securities of its intention to effect such
a registration and shall include in such registration all Registrable Securities
with respect to which the Company has received written requests for inclusion
therein within 20 days after the receipt of the Company's notice. "REGISTRABLE
SECURITIES" means the shares of Common Stock held by the Shareholders at the
Effective Time, together with any other shares of Common Stock issued or
issuable with respect to said shares by way of a stock dividend or stock split
or conversion or in connection with an exchange or combination of shares,
recapitalization, merger, consolidation or other reorganization, and any other
shares of Common Stock held by the Shareholders at any time. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when they have been registered under the Securities Act or sold to
the public through a broker, dealer or market maker in compliance with Rule 144
under the Securities Act (or any similar rule then in force) ("RULE 144"). For
purposes of this Amended and Restated Registration Rights Agreement, a person
shall be deemed to be a holder of Registrable Securities whenever such person
has the right to acquire such Registrable Securities (upon conversion or
exercise in connection with a transfer of securities or otherwise), whether or
not such acquisition has actually been effected; provided, however, that such
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acquisition must actually have been effected prior to the effective date of any
registration statement which includes any Registrable Securities to be so
acquired.
(b) PIGGYBACK EXPENSES. The Registration Expenses (as hereinafter
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defined) of the holders of Registrable Securities shall be paid by the Company
in all Piggyback Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is an
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underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in an orderly manner in such offering within a price range
acceptable to the Company without adversely affecting the marketability of
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the offering, the Company shall include in such registration (i) first, the
securities the Company proposes to sell, (ii) second, the Registrable Securities
requested to be included in such registration (which shall include "Registrable
Securities" requested to be included in such registration under the Investors
and Executives Registration Rights Agreement), pro rata among the holders of
such Registrable Securities on the basis of the number of shares owned by each
such holder, and (iii) third, other securities requested to be included in such
registration.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration is an
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underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the holders of a majority of the
"Registrable Securities" under the Investors and Executives Registration Rights
Agreement and the holders of a majority of the Registrable Securities under this
Amended and Restated Registration Rights Agreement without adversely affecting
the marketability of the offering, the Company shall include in such
registration (i) first, the securities requested to be included therein by the
holders on whose behalf such registration is being effected, (ii) second, the
Registrable Securities requested to be included in such registration (which
shall include "Registrable Securities" requested to be included in such
registration under the Investors and Executives Registration Rights Agreement),
pro rata among the holders of such Registrable Securities on the basis of the
number of shares owned by each such holder, and (iii) third, other securities
requested to be included in such registration.
3. REGISTRATION PROCEDURES. Whenever the holders of Registrable Securities
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have requested that any Registrable Securities be registered pursuant to this
Amended and Restated Registration Rights Agreement, the Company shall use its
best efforts to effect the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition thereof, and
pursuant thereto the Company shall as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission (the
"SEC") a registration statement with respect to such Registrable Securities and
use its best efforts to cause such registration statement to become effective
(provided that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company shall furnish to the counsel
selected by the holders of a majority of the Registrable Securities covered by
such registration statement copies of all such documents proposed to be filed,
which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of the effectiveness of
each registration statement filed hereunder and prepare and file with the SEC
such amendments and supplements to such registration statement
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and the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than 180 days and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of copies
of such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as such seller may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company shall not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such seller, the Company shall prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are then listed and,
if not so listed, to be listed on the "NASDAQ SYSTEM" (as defined in Rule 11Aa3-
1 of the SEC under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT")) and, if listed on the NASDAQ System, use its best efforts to
secure designation of all such Registrable Securities covered by such
registration statement as a "national market system security" within the meaning
of Rule 11Aa2-1 of the SEC under the Exchange Act or, failing that, to secure
NASDAQ authorization for such Registrable Securities and, without limiting the
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generality of the foregoing, to arrange for at least two market makers to
register as such with respect to such Registrable Securities with the NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting agreements
in customary form) and take all such other actions as the holders of a majority
of the Registrable Securities being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities (including effecting a stock split or a combination of shares);
(i) make available for inspection by any seller of Registrable Securities,
any underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors, employees and independent accounts to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at least
twelve months beginning with the first day of the Company's first full calendar
quarter after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in its sole
and exclusive judgment, might be deemed to be an underwriter or a controlling
person of the Company, to participate in the preparation of such registration or
comparable statement and to require the insertion therein of material, furnished
to the Company in writing, which in the reasonable judgment of such holder and
its counsel should be included;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(m) subject to the provision in SECTION 3(D) above, use its best efforts to
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cause such Registrable Securities covered by such registration
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statement to be registered with or approved by such other governmental agencies
or authorities as may be necessary to enable the sellers thereof to consummate
the disposition of such Registrable Securities; and
(n) obtain a cold comfort letter from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by cold comfort letters as the holders of a majority of the
Registrable Securities being sold reasonably request (provided that such
Registrable Securities constitute a least 10% of the securities covered by such
registration statement).
4. REGISTRATION EXPENSES.
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(a) All expenses incident to the Company's performance of or compliance with
this Amended and Restated Registration Rights Agreement, including without
limitation all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, fees and disbursements of custodians, and fees and disbursements of
counsel for the Company and all independent certified public accountants,
underwriters (excluding discounts and commissions) and other persons retained by
the Company (all such expenses being herein called "REGISTRATION EXPENSES"),
shall be borne by the Company.
(b) In connection with each Piggyback Registration, the Company shall
reimburse the holders of Registrable Securities included in such registration
for the reasonable fees and disbursements of one counsel chosen by the holders
of a majority of the Registrable Securities and for the reasonable fees and
disbursements of each additional counsel retained by any holder of Registrable
Securities for the purpose of rendering a legal opinion on behalf of such holder
in connection with any underwritten Piggyback Registration.
5. INDEMNIFICATION.
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(a) The Company agrees to indemnify, to the extent permitted by law, each
holder of Registrable Securities, its officers and directors and each person who
controls such holder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses caused by any untrue or
alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for use
therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the
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Company shall indemnify such underwriters, their officers and directors and each
person who controls such underwriters (within the meaning of the Securities Act)
to the same extent as provided above with respect to the indemnification of the
holders of Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the Company, its
directors and officers and each person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such holder; provided that the obligation to indemnify
shall be individual, not joint and several, for each holder and shall be limited
to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) Any person entitled to indemnification hereunder shall (i) give prompt
written notice to the indemnifying part of any claim with respect to which it
seeks indemnification (provided that the failure to give prompt notice shall not
impair any person's right to indemnification hereunder to the extent such
failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Amended and Restated
Registration Rights Agreement shall remain in full force and effect regardless
of any investigation made by or on behalf of the indemnified party or any
officer, director or controlling person of such indemnified party and shall
survive
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the transfer of securities. The Company also agrees to make such provisions, as
are reasonably requested by any indemnified party, for contribution to such
party in the event the Company's indemnification is unavailable for any reason.
6. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No person may participate in
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any registration hereunder which is underwritten unless such person (i) agrees
to sell such person's securities on the basis provided in any underwriting
arrangements approved by the person or persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements; provided that no holder of
Registrable Securities included in any underwritten registration shall be
required to make any representations or warranties to the Company or the
underwriters (other than representations and warranties regarding such holder
and such holder's intended method of distribution) or to undertake any
indemnification obligations to the Company or the underwriters with respect
thereto, except as otherwise provided in SECTION 5 hereof.
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7. MISCELLANEOUS.
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(a) NO INCONSISTENT AGREEMENTS. The Company shall not enter into any
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agreement with respect to its securities which is inconsistent with or violates
the rights granted to the holders of Registrable Securities in this Amended and
Restated Registration Rights Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company shall not
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take any action, or permit any change to occur, with respect to its securities
which would adversely affect the ability of the holders of Registrable
Securities to include such Registrable Securities in a registration undertaken
pursuant to this Amended and Restated Registration Rights Agreement or which
would adversely effect the marketability of such Registrable Securities in any
such registration (including, without limitation, effecting a stock split or a
combination of shares).
(c) REMEDIES. Any person having rights under any provisions of this Amended
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and Restated Registration Rights Agreement shall be entitled to enforce such
rights specifically to recover damages caused by reason of any breach of any
provision of this Amended and Restated Registration Rights Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Amended and Restated Registration Rights 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 other security) for
specific performance and for other injunctive relief in order to enforce or
prevent
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violation of the provisions of this Amended and Restated Registration Rights
Agreement.
(d) AMENDMENT AND WAIVERS. Except as otherwise provided herein, the
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provisions of this Amended and Restated Registration Rights Agreement may be
amended or waived only upon the prior written consent of the Company and holders
of at least 70% of the Registrable Securities.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements in this Amended
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and Restated Registration Rights Agreement by or on behalf of any 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. In addition, whether
or not any express assignment has been made, the provisions of this Amended and
Restated Registration Rights Agreement which are for the benefit of purchasers
or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(f) SEVERABILITY. Whenever possible, each provision of this Amended and
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Restated Registration Rights Agreement shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this
Amended and Restated Registration Rights Agreement is held to be prohibited by
or invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Amended and Restated Registration Rights Agreement.
(g) COUNTERPARTS. This Amended and Restated Registration Rights Agreement
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may be executed simultaneously in two or more counterparts, any one of which
need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same Amended and
Restated Registration Rights Agreement.
(h) DESCRIPTIVE HEADINGS. The descriptive headings of this Amended and
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Restated Registration Rights Agreement are inserted for convenience only and do
not constitute a part of this Amended and Restated Registration Rights
Agreement.
(i) GOVERNING LAW. THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT,
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THE RIGHTS AND DUTIES OF THE PARTIES HERETO, AND ANY CLAIMS OR DISPUTES RELATING
THERETO, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF FLORIDA (BUT NOT INCLUDING THE CHOICE OF LAW RULES THEREOF).
(j) NOTICES. All notices, demands or other communications to be given or
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delivered under or by reason of the provisions of this Amended and Restated
Registration Rights Agreement shall be in writing and shall be deemed to
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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 at the addresses set forth: (i) in the case of a Shareholder, on
the books and records of the Company (or such other address as to which such
Shareholder has notified the Company); or (ii) in the case of the Company,
below:
AnswerThink Consulting Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President, Chief Executive Officer and Chairman.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Second Amended and
Restated Registration Rights Agreement as of the date first written above.
THE COMPANY:
ANSWERTHINK CONSULTING GROUP, INC.,
a Florida corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President, Chief Executive Officer and
Chairman
ACG-DELAWARE:
ANSWERTHINK CONSULTING GROUP, INC.,
a Delaware corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President, Chief Executive Officer and
Chairman
REQUIRED SHAREHOLDERS:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇▇▇▇
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SCHEDULE 1
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SHAREHOLDERS
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