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EXHIBIT 10.2
EXECUTION COPY
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STOCK PURCHASE AND REDEMPTION AGREEMENT
BY AND AMONG
CONVERGENT GROUP CORPORATION,
CERTAIN SHAREHOLDERS OF CONVERGENT GROUP CORPORATION,
XXXXX X. XXXXXX, AS THE SHAREHOLDERS' REPRESENTATIVE,
AND
THE INVESTORS NAMED HEREIN
AUGUST 13, 1999
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TABLE OF CONTENTS
ARTICLE I.....................................................................1
I.1 Sale and Purchase of Purchased Shares..................................1
I.2 Redemption of Redeemed Shares..........................................2
I.3 Consideration..........................................................2
I.4 Delivery of Purchased Shares...........................................2
I.5 Delivery of Redeemed Shares............................................2
I.6 No Other Transaction: Release..........................................2
ARTICLE II RELATED MATTERS....................................................3
II.1 Stamp and Other Taxes................................................3
ARTICLE III CLOSING...........................................................3
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY......................3
IV.1 Authority; Noncontravention; Consents.................................3
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS..................4
V.1 Title to Shares........................................................4
V.2 Authority..............................................................4
V.3 Noncontravention.......................................................4
V.4 Consents...............................................................5
V.5 Brokers................................................................5
V.6 Information Statement, Sufficient Information..........................5
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE INVESTORS....................5
VI.1 Authority; Noncontravention; Consents.................................5
VI.2 Brokers...............................................................6
ARTICLE VII CONDUCT AND TRANSACTIONS PRIOR TO THE CLOSING; ADDITIONAL
AGREEMENTS........................................................6
VII.1 Affirmative Covenants of the Shareholders............................6
VII.2 Consents.............................................................8
VII.3 Public Announcements.................................................8
VII.4 Shareholders' Representative.........................................8
VII.5 Release by Shareholders.............................................10
ARTICLE VIII MISCELLANEOUS PROVISIONS........................................11
VIII.1 Survival of Representations and Warranties.........................11
VIII.2 Indemnification....................................................11
VIII.3 Amendment..........................................................11
VIII.4 Entire Agreement...................................................11
VIII.5 Severability.......................................................12
VIII.6 No Third-Party Beneficiaries; Successors and Assigns...............12
VIII.7 Headings...........................................................12
VIII.8 Notices............................................................12
VIII.9 Counterparts.......................................................13
VIII.10 Governing Law.....................................................13
VIII.11 Incorporation of Exhibits and Schedules...........................14
VIII.12 Construction......................................................14
VIII.13 Non-Merger of Representations and Warranties......................14
VIII.14 Remedies; Specific Performance....................................14
VIII.15 Jurisdiction, Etc.................................................14
VIII.16 Waiver of Jury Trial..............................................15
VIII.17 Independence of Covenants and Representations and Warranties......15
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STOCK PURCHASE AND REDEMPTION AGREEMENT
(as amended, modified or supplemented, this
"Agreement"), dated as of August 13, 1999, by
and among CONVERGENT GROUP CORPORATION, a
Delaware corporation (the "Company"), certain
shareholders of the Company listed on the
signature pages hereto (the "Shareholders"),
Xxxxx X. Xxxxxx, solely in his capacity as the
Shareholders' Representative and the Investors
listed on Schedule I hereto (the "Investors").
RECITALS
Simultaneously with the execution and delivery of this Agreement, the
Company, the Investors and the other parties thereto are consummating the
transactions contemplated by that certain Recapitalization Agreement dated of
even date (the "Recapitalization Agreement"). As a condition to the Investors'
obligations to consummate the transactions contemplated by the Recapitalization
Agreement, the Investors desire that the parties hereto execute and deliver this
Agreement.
Prior to the date hereof, the Shareholders have authorized and approved
the Company's filing of the Restated Charter.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements set forth herein, the parties hereto hereby
agree as follows:
ARTICLE I
I.1 SALE AND PURCHASE OF PURCHASED SHARES.
(a) Immediately following the effectiveness of the Restated Charter, the
Shareholders identified on Schedule II shall exchange certain shares of New
Common Stock held by them for an equivalent number of shares of New Series A
Preferred Stock, and upon the terms and subject to the conditions set forth
herein, at the Closing the Shareholders identified on Schedule II hereto shall,
severally but not jointly, sell, transfer, convey and assign to the Investors,
that number of shares of New Series A Preferred Stock (the "Purchase") set forth
opposite such Shareholder's name on Schedule II (the "Purchased Shares").
(b) Subject to the terms and conditions hereof, each Investor shall
purchase from the Shareholders identified on Schedule II, severally but not
jointly, that number of Purchased Shares specified opposite such Investor's name
on Schedule I hereto, for an aggregate purchase price for all Investors of
$1,552,301 (the "Purchased Shares Consideration").
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I.2 REDEMPTION OF REDEEMED SHARES.
(a) The Company will have authorized before the Closing the redemption
of 1,389,024 shares of New Common Stock.
(b) Upon the terms and subject to the conditions set forth herein, at
the Closing the Shareholders identified on Schedule II hereto shall, severally
but not jointly sell, transfer, convey and assign to the Company, and the
Company shall redeem and purchase from such Shareholders (the "Redemption"),
that number of shares of New Common Stock (the "Redeemed Shares") set forth
opposite such Shareholder's name on Schedule II hereto. As payment for the
Redeemed Shares, the Company shall pay to the Shareholders by wire transfer or
check the amount set forth opposite each such Shareholder's name on Schedule II
hereto ($1,512,394 in the aggregate) (the "Redeemed Shares Consideration").
I.3 CONSIDERATION.
(a) The consideration to be paid to the Shareholders by the Investors
or the Company, as the case may be, shall be deemed to be good and sufficient
consideration for the Purchased Shares, the Redeemed Shares and the covenants
contained in Section 7.1(c) herein.
I.4 DELIVERY OF PURCHASED SHARES.
At the Closing, in consideration of the Investor's delivery of the
Purchased Shares Consideration, each Shareholder shall deliver to the Investors
a certificate or certificates representing the Purchased Shares owned by such
Shareholder as set forth on Schedule II, duly endorsed in blank for transfer or
accompanied by stock powers duly executed in blank, sufficient in form and
substance to convey to the Investors, good and marketable title to the Purchased
Shares free and clear of all Encumbrances.
I.5 DELIVERY OF REDEEMED SHARES.
At the Closing, in consideration of the Company's delivery of the
Redeemed Shares Consideration, each Shareholder shall deliver to the Company a
certificate or certificates representing the number of Redeemed Shares being
redeemed and purchased from each Shareholder, set forth on Schedule II, duly
endorsed in blank for transfer or accompanied by stock powers duly executed in
blank, sufficient in form and substance to convey to the Company, good and
marketable title to the Redeemed Shares free and clear of all Encumbrances.
I.6 NO OTHER TRANSACTIONS; RELEASE.
Each of the Shareholders party hereto agrees and acknowledges that as a
result of the Transactions, certain payments, consideration and benefits are
being provided to certain stockholders of the Company but not all stockholders
of the Company and that certain stockholders of the Company are receiving
different consideration, taken as a whole, for the sale of their shares of
capital stock of the Company than other Shareholders are receiving for the sale
of their shares of capital stock of the Company. The Shareholders party hereto
hereby release the Company, its Subsidiaries and the Investors, their
Affiliates, members, partners (including limited
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partners), officers, directors, employees, independent advisors and agents from
any claims, Losses, damages or costs arising from the Transactions, including
claims, Losses, damages or costs in connection with the fact that certain
Shareholders may be, taken as a whole, receiving disparate treatment in
connection with the Transactions.
ARTICLE II
RELATED MATTERS
II.1 STAMP AND OTHER TAXES.
The Company shall pay all stamp, filing and similar Taxes and fees
payable with respect to the transactions contemplated by this Agreement.
ARTICLE III
CLOSING
The closing of the Purchase, the Redemption and the other transactions
contemplated hereby (the "Closing") shall take place (a) at the offices of
X'Xxxxxxxx Graev & Karabell, LLP, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, as promptly as practicable after satisfaction or waiver of the conditions
set forth in Article IX in accordance with this Agreement or (b) at such other
place, time and date as the Investors and the Company may agree in writing. The
date and time of such Closing are referred to herein as the "Closing Date".
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Shareholders as
follows:
IV.1 AUTHORITY; NONCONTRAVENTION; CONSENTS.
(a) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary action on the part of the Company; and this
Agreement has been duly and validly executed and delivered by it, and this
Agreement is the valid and binding obligation of the Company, enforceable
against it in accordance with its terms, except as enforceability thereof may be
limited by any applicable bankruptcy, reorganization, insolvency or other Laws
affecting creditors rights generally or by general principles of equity.
(b) Neither the execution, delivery and performance of this Agreement
nor the consummation by the Company of the transactions contemplated hereby will
(i) conflict with, or result in any violation of, or cause a default (with or
without notice or lapse of time, or both) under, or give rise to a right of
termination, amendment, cancellation or acceleration of any obligation contained
in or the loss of any benefit under, or result in the creation of any
Encumbrance upon any of the properties or assets of the Company under any term,
condition or
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provision of (x) the Company's certificate or articles of incorporation or
bylaws or (y) any Contract to which the Company is a party or by which its
properties or assets are bound, (ii) result in any investigatory, remedial or
reporting obligation under any environmental and safety requirement or (iii)
violate any Laws applicable to the Company or any of its properties.
(c) Except as is expressly contemplated by this Agreement, no consent,
approval, Order or authorization of, registration, declaration or filing with,
or notification to any Governmental Entity or any other third party is required
in connection with the execution, delivery and performance by the Company of
this Agreement or the consummation by the Company of the transactions
contemplated hereby.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF THE SHAREHOLDERS
Each of the Shareholders represents and warrants severally (as to
himself or herself and not as to any other Shareholder) to the Investors and the
Company as follows:
V.1 TITLE TO SHARES.
Such Shareholder is the lawful owner, of record and beneficially, of the
shares of Common Stock being sold, transferred, conveyed and assigned by it, him
or her hereunder pursuant to each of the Purchase and the Redemption and has
good and marketable title to such shares, free and clear of any Encumbrances
whatsoever and with no restrictions on the voting rights and other incidents of
record and beneficial ownership pertaining thereto. There are no agreements
between such Shareholder and any other Person with respect to voting of, or any
other matters pertaining to, the capital stock of the Company.
V.2 AUTHORITY.
Such Shareholder has full and absolute legal right, capacity, power and
authority to enter into this Agreement and the Related Documents to which such
Shareholder is a party, and this Agreement is, and the Related Documents to
which such Shareholder is a party, when executed and delivered by such
Shareholder as contemplated hereby, will be, the valid and binding obligation of
such Shareholder, enforceable against such Shareholder in accordance with their
respective terms, except as enforceability thereof may be limited by any
applicable bankruptcy, reorganization, insolvency or other Laws affecting
creditors rights generally or by general principles of equity.
V.3 NONCONTRAVENTION.
Neither the execution, delivery and performance of this Agreement and
the Related Documents to which it, he or she is a party nor the consummation of
the transactions contemplated hereby or thereby nor compliance by such
Shareholder with any of the provisions hereof or thereof will (i) conflict with,
or result in any violations of, or cause a default (with or
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without notice or lapse of time, or both) under, or give rise to a right of
termination, amendment, cancellation or acceleration of any obligations
contained in or the loss of any benefit under any term, condition or provision
of: (x) such Shareholder's organizational or constating documents or (y) any
Contract to which such Shareholder is a party, or by which such Shareholder or
any of its, his or her properties may be bound or (ii) violate any Law
applicable to such Shareholder or any of its, his or her properties, which in
the case of either clause (i) or (ii) could prevent the consummation of the
transactions contemplated by this Agreement.
V.4 CONSENTS.
Except as specified in this Agreement, no Permit, Order, authorization,
consent or approval of or by, or any notification of or filing with, any Person
(governmental or private) is required in connection with the execution, delivery
and performance by such Shareholder of this Agreement and the Related Documents
to which he or she is a party or the consummation by such Shareholder of the
transactions contemplated hereby or thereby.
V.5 BROKERS.
Such Shareholder has not employed any broker or finder or incurred any
Liability for any brokerage fees, commissions or finders' fees in connection
with the transactions contemplated by this Agreement or the Related Documents.
V.6 INFORMATION STATEMENT; SUFFICIENT INFORMATION.
Such Shareholder has received and read the Information Statement (the
"Information Statement") and has asked such additional questions and received
such additional information from the Company relating to the Transactions and
other relevant matters (including, without limitation, additional information to
verify the accuracy of the information set forth in the Information Statement)
as such Shareholder deems necessary in connection with his or her consummation
of the transactions contemplated therein and in this Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
Each Investor represents and warrants to the Shareholders severally (as
to itself and not as to any other Investor) as follows:
VI.1 AUTHORITY; NONCONTRAVENTION; CONSENTS.
(a) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby has been duly and validly
authorized by all necessary action on the part of such Investor; and this
Agreement has been duly and validly executed and delivered by such Investor and
this Agreement is, the valid and binding obligations of such Investor,
enforceable against such Investor in accordance with its terms, except as
enforceability thereof may be limited by any applicable bankruptcy,
reorganization, insolvency or other Laws affecting creditors rights generally or
by general principles of equity.
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(b) Neither the execution, delivery and performance of this Agreement,
nor the consummation by such Investor of the transactions contemplated hereby
will (i) conflict with, or result in any violation of, or cause a default (with
or without notice or lapse of time, or both) under, or give rise to a right of
termination, amendment, cancellation or acceleration of any obligation contained
in or the loss of any benefit under, or result in the creation of any
Encumbrance upon any of the properties or assets of such Investor under any
term, condition or provision of (x) such Investor's constating or governing
documents or (y) any Contract to which such Investor is a party or by which its
properties or assets are bound or (ii) violate any Laws applicable to such
Investor.
(c) No consent, approval, Order or authorization of, registration,
declaration or filing with, or notification to any Governmental Entity or any
other third party is required in connection with the execution, delivery and
performance by such Investor of this Agreement or the consummation of the
transactions contemplated hereby.
VI.2 BROKERS.
Except as set forth on Schedule 6.2 such Investor has not employed any
broker or finder or incurred any Liability for any brokerage fees, commissions
or finders' fees in connection with the transactions contemplated by this
Agreement.
ARTICLE VII
CONDUCT AND TRANSACTIONS PRIOR TO THE CLOSING;
ADDITIONAL AGREEMENTS
VII.1 AFFIRMATIVE COVENANTS OF THE SHAREHOLDERS.
From and after the Closing Date, each Shareholder:
(a) shall not disclose or use at any time, either during his or her
employment period or thereafter, any Confidential Information of which such
Shareholder is or becomes aware, whether or not such information is developed by
him or her, except to the extent that such disclosure or use is directly related
to and required by such Shareholder's performance of duties assigned to the him
or her by the Company or any Subsidiary;
(b) agrees that all Work Product belongs to the Company or any
Subsidiary. Such Shareholder will promptly disclose such Work Product to the
Company and perform all actions reasonably requested by the Company (whether
during or after the employment period) to establish and confirm such ownership
(including, without limitation, the execution and delivery of assignments,
consents, powers of attorney and other instruments) and to provide reasonable
assistance to the Company or any Subsidiary in connection with the prosecution
of any applications for patents, trademarks, trade names, service marks or
reissues thereof or in the prosecution or defense of interferences relating to
any Work Product;
(c) acknowledges and agrees with the Company that during the course of
such Shareholder's employment with the Company or any Subsidiary, such
Shareholder has had and
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will continue to have the opportunity to develop relationships with existing
employees, customers and other business associates of the Company and its
Subsidiaries which relationships constitute goodwill of the Company and its
Subsidiaries, and the Company and its Subsidiaries would be irreparably damaged
if such Shareholder were to take actions that would damage or misappropriate
such goodwill and accordingly agrees as follows:
(i) Such Shareholder acknowledges that the Company and its
Subsidiaries currently conduct the Subject Business throughout the world
(the "Territory"). Accordingly, during the Non-Compete Period, such
Shareholder shall not, directly or indirectly, enter into, engage in,
assist, give or lend funds to or otherwise finance, be employed by or
consult with, or have a financial or other interest in, any business
which engages in the Subject Business in the Territory, whether for or
by himself or herself or as an independent contractor, agent,
stockholder, partner or joint venturor for any other Person. As used in
this Agreement, "Non-Compete Period" means the period beginning on the
Closing Date and ending: upon the termination of such shareholder's
employment with the Company for any reason. To the extent that the
covenant provided for in this Section 7.1(c)(i) may later be deemed by
a court to be too broad to be enforced with respect to its duration or
with respect to any particular activity or geographic area, the court
making such determination shall have the power to reduce the duration or
scope of this Section 7.1(c)(i), and to add or delete specific words or
phrases. This Section 7.1(c)(i) as modified shall then be enforced.
(ii) Notwithstanding Section 7(c)(i), the aggregate ownership by
a Shareholder of no more than two percent (on a fully-diluted basis) of
the outstanding equity securities of any Person, which securities are
traded on a national or foreign securities exchange, quoted on the
NASDAQ Stock Market or other automated quotation system, and which
Person competes with the Company (or any part thereof) within the
Territory, shall not be deemed to be a violation of Section 7(c)(i). In
the event that any Person in which a Shareholder has any financial or
other interest directly or indirectly enters into a line of business
during the Non-Compete Period that competes with the Company within the
Territory, such Shareholder shall divest all of his or her interest
(other than as permitted to be held pursuant to the first sentence of
this Section 7.1(c)(ii)) in such Person within 15 days after such
Person enters into such line of business that competes with the Company
within the Territory.
(iii) Such Shareholder covenants and agrees that during the
Non-Compete Period, such Shareholder will not, directly or indirectly,
either for himself or herself or for any other Person (A) solicit any
employee of the Company or any of its Subsidiaries to terminate his or
her employment with the Company or any of its Subsidiaries or employ any
such individual during his or her employment with the Company or any of
its Subsidiaries and for a period of one year after such individual
terminates his or her employment with the Company or any of its
Subsidiaries, (B) solicit any customer of the Company or any of its
Subsidiaries to purchase products or services of or on behalf of such
Shareholder or such other Person that are competitive with the products
or services provided by the Company or any of its Subsidiaries, or (c)
take any action that may cause injury to the relationships between the
Company or any of its Subsidiaries or any of their
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employees and any lessor, lessee, vendor, supplier, customer,
distributor, employee, consultant or other business associate of the
Company or any of its Subsidiaries as such relationship relates to the
Company's or any of its Subsidiaries' conduct of their business.
(d) Such Shareholder understands that the foregoing restrictions may
limit his or her ability to earn a livelihood in a business similar to the
business of the Company and any of its Subsidiaries, but he or she nevertheless
believes that he or she has received and will receive sufficient consideration
and other benefits as an employee of the Company and as otherwise provided
hereunder to clearly justify such restrictions which, in any event (given his or
her education, skills and ability), he or she does not believe would prevent him
or her from otherwise earning a living.
(e) Such Shareholder shall deliver to the Company at the termination
of his or her employment period or at any time the Company may request all
memoranda, notes, plans, records, reports, computer tapes and software and other
documents and data (and copies thereof) relating to the Confidential
Information, Work Product or the Subject Business which he or she may then
possess or have under his or her control regardless of the location or form of
such material and, if requested by the Company, will provide the Company with
written confirmation that all such materials have been delivered to the Company.
VII.2 CONSENTS.
Each party shall use its best efforts, and the other parties shall
cooperate with such efforts, to obtain any consents and approvals of, or effect
the notification of or filing with, each Person or authority, whether private or
governmental, whose consent or approval is required in order to permit the
consummation of the transactions contemplated hereby.
VII.3 PUBLIC ANNOUNCEMENTS.
Each party agrees that, except (i) as otherwise required by Law
(including under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976) and
(ii) for disclosure to its respective directors, officers, employees, financial
advisors, potential financing sources, legal counsel, independent certified
public accountants or other agents, advisors or representatives on a
need-to-know basis and with whom such party has a confidential relationship, it
will not issue any reports, statements or releases, in each case pertaining to
this Agreement, the Related Documents or the transactions contemplated hereby or
thereby, without the prior written consent of the Company, the Shareholders'
Representative or the Investors, as the case may be, which consent shall not
unreasonably be withheld or delayed.
VII.4 SHAREHOLDERS' REPRESENTATIVE.
The Shareholders agree among themselves (without prejudice to or
affecting in any way the rights provided in this Agreement or otherwise to the
Company or any Investor) as follows:
(a) Appointment. The Shareholders, for themselves and their personal
representatives and other successors, hereby constitute and appoint Xxxxx X.
Xxxxxx, as their agent (the "Shareholders' Representative"), with full power and
authority, except as otherwise
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expressly provided in this Agreement, in the name of and for and on behalf of
the Shareholders, to take all action required or permitted under this Agreement
or any of the Related Documents (including, without limitation, the giving and
receiving of all accountings, reports, notices, waivers and consents). In the
event of the death, physical or mental incapacity or resignation of Xxxxx X.
Xxxxxx or any successor Shareholders' Representative, the Shareholders
Representative as appointed pursuant to the Recapitalization Agreement shall be
appointed as the substitute Shareholders' Representative hereunder. The
authority conferred under this Section 7.5(a) is an agency coupled with an
interest and all authority conferred hereby is irrevocable and not subject to
termination by the Shareholders or by the Shareholders' Representative or by
operation of Law, whether by the death or incapacity of any Shareholder, the
termination of any trust or estate or the occurrence of any other event. If any
Shareholder should die or become incapacitated, if any trust or estate should
terminate or if any other such event should occur, any action taken by the
Shareholders' Representative pursuant to this Section 7.5(a) shall be as valid
as if such death or incapacity, termination or other event had not occurred,
regardless of whether or not any Person shall have received notice of such
death, incapacity, termination or other event.
(b) Reliance by Shareholders' Representative. The Shareholders'
Representative shall be entitled to rely, and shall be fully protected in
relying, upon any statements furnished to him by any Person or any other
evidence deemed by the Shareholders' Representative to be reasonably reliable,
and the Shareholders' Representative shall be entitled to act on the advice of
counsel selected by him. The Shareholders' Representative shall be fully
justified in failing or refusing to take any action under this Agreement unless
he shall have received such advice or concurrence of the Shareholders as he
deems appropriate or he shall have been expressly indemnified to his
satisfaction by the Shareholders severally according to their respective
Shareholder Percentages against any and all Liability and expense that the
Shareholders' Representative may incur by reason of taking or continuing to take
any such action. The Shareholders' Representative shall in all cases be fully
protected in acting, or refraining from acting, under this Agreement in
accordance with a request of Shareholders whose aggregate Shareholder
Percentages equal or exceed 50%, and such request, and any action taken or
failure to act pursuant thereto, shall be binding upon all of the Shareholders.
(c) Expenses of Shareholders' Representative. The Shareholders'
Representative shall be entitled to retain counsel and to incur such expenses
(including litigation expenses) as the Shareholders' Representative deems to be
necessary or appropriate in connection with his performance of his obligations
under this Agreement. All such fees and expenses (including reasonable
attorneys' fees) incurred by the Shareholders' Representative prior to the
Closing shall be borne by the Company, and all such fees and expenses (including
reasonable attorneys' fees) incurred by the Shareholders' Representative after
the Closing shall be borne by the Shareholders severally according to their
respective Shareholder Percentages.
(d) Indemnification. The Shareholders hereby agree severally to
indemnify the Shareholders' Representative (in his capacity as such) ratably
according to their respective Shareholder Percentages against, and to hold the
Shareholders' Representative (in his capacity as such) harmless from, any and
all Liabilities, Losses, penalties, actions, judgments, suits, costs, expenses
or disbursements of whatever kind which may at any time be imposed upon,
incurred by or asserted against the Shareholders' Representative in such
capacity in any way relating to or
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arising out of his action or failure to take action pursuant to this Agreement
or in connection herewith or therewith in such capacity; provided, however, that
no Shareholder shall be liable for the payment of any portion of such
Liabilities, Losses, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the gross negligence or willful misconduct
of the Shareholders' Representative as determined by a final decision of a court
of competent jurisdiction no longer subject to appeal. The agreements in this
paragraph shall survive the termination of this Agreement.
(e) No Personal Liability. Except for liability to the Shareholders
resulting solely from his gross negligence or willful misconduct as determined
by a final decision of a court of competent jurisdiction no longer subject to
appeal, the Shareholders' Representative shall have no liability to any Person
as a result of his status as the Shareholders' Representative.
VII.5 RELEASE BY SHAREHOLDERS.
(a) Anything contained herein to the contrary notwithstanding, upon
receipt by each Shareholder of the consideration to be received by such
Shareholder pursuant to Section 1., each such Shareholder hereby agrees, solely
in his or her capacity as a shareholder of the Company, and not as an employee
or in any other capacity, that (without any further action on the part of such
Shareholder) the Company (for the benefit of the Company, the Investors and
their respective parents, subsidiaries, Affiliates, divisions and predecessors
and their past and present directors, officers, employees and agents, and each
of their respective successors, heirs, assigns, executors and administrators
(collectively, the "Released Persons")) shall be irrevocably released and
forever discharged of and from all manner of action and actions, cause and
causes of action, suits, rights, debts, dues, sums of money, accounts, bonds,
bills, covenants, Contracts, controversies, omissions, promises, variances,
trespasses, damages, liabilities, judgments, executions, claims and demands
whatsoever, in law or in equity which against the Released Persons such
Shareholder ever had, now has or which he or it hereafter can, shall or may
have, whether known or unknown, suspected or unsuspected, matured or unmatured,
fixed or contingent, for, upon or by reason of any matter or cause relating to
such Shareholder's interest as a shareholder in the Company and arising at any
time on or prior to the Closing, including the consummation of the Transactions.
(b) Each Shareholder specifically represents and warrants to the
Released Persons that he or it has not assigned any such claim set forth in
paragraph (a) above, and agrees to indemnify and hold harmless the Released
Persons from and against any and all Losses arising from or in any way related
to (i) any such assignment, and (ii) any action by any third party arising from
or in any way related to the relationship among such Shareholders and the
Released Persons, which is the subject of this Section 7.6.
(c) Covenant Not to Xxx. Each Party hereto hereby covenants, that
after execution of this Agreement and the consummation of the Transactions, he,
she or it shall not commence any action, lawsuit or other Proceeding in law or
in equity, or otherwise, based upon any claim, demand, Loss, cause of action or
Liability, which is released herein. However, nothing contained herein shall
prevents any Party from commencing any action to enforce any breach of any
obligation assumed by another Party hereto under this Agreement or the Related
Documents
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Should any Party, at any time after the Parties execute this Agreement, commence
any action, lawsuit or other Proceeding, in law or in equity or otherwise, in
breach of the covenant not to xxx contained in this Section 7.6(c), such Party
shall indemnify and hold harmless the other Parties to such action, lawsuit or
other Proceeding from and against any Liability, Loss, cost, expense or
judgement arising out of or occasioned by such action, including, but not
limited to, the amount or any judgement or settlement entered into in resolution
of said action and attorney's fees.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
VIII.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties contained in this Agreement shall
survive the Closing of the transactions contemplated by this Agreement
indefinitely.
VIII.2 INDEMNIFICATION.
(a) Each Shareholder who is receiving any portion of the Redeemed
Shares Consideration shall, severally and not jointly, indemnify and hold the
Company harmless against all liability, loss or damage, together with all
reasonable costs and expenses related thereto (including reasonable legal fees
and expenses), relating to or arising from the untruth, inaccuracy or breach of
any of the representations, warranties, covenants, or agreements of such
Shareholder contained in this Agreement.
(b) Each Shareholder who is receiving any portion of the Purchased
Shares Consideration shall, severally and not jointly, indemnify and hold the
Investors harmless against all liability, loss or damage, together with all
reasonable costs and expenses related thereto (including reasonable legal fees
and expenses), relating to or arising from the untruth, inaccuracy or breach of
any of the representations, warranties, covenants, or agreements of such
Shareholder contained in this Agreement.
VIII.3 AMENDMENT.
This Agreement may not be amended except by an instrument in writing
signed by the Investors' Representative, the Shareholders' Representative and
the Company.
VIII.4 ENTIRE AGREEMENT.
This Agreement and the other agreements and documents referenced herein
(including, but not limited to, the Schedules and the Exhibits (in their
executed form) attached hereto) contain all of the agreements among the parties
hereto with respect to the transactions contemplated hereby and supersede all
prior agreements or understandings among the parties with respect thereto
(including, but not limited to, the letter of intent dated as of June 23, 1999,
as amended, among the Investors' Representative and the Company).
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14
VIII.5 SEVERABILITY.
It is the desire and intent of the parties that the provisions of this
Agreement be enforced to the fullest extent permissible under the Law and public
policies applied in each jurisdiction in which enforcement is sought.
Accordingly, in the event that any provision of this Agreement would be held in
any jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
VIII.6 NO THIRD-PARTY BENEFICIARIES; SUCCESSORS AND ASSIGNS.
Except as expressly provided herein, this Agreement shall not confer any
rights or remedies upon any Person other than the parties hereto and their
respective successors and permitted assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, representatives, heirs and estates, as the
case may be. This Agreement shall not be assignable by the Company or the
Shareholders without the consent of the Investors' Representative.
VIII.7 HEADINGS.
Descriptive headings are for convenience only and shall not control or
affect in any way the meaning or construction of any provision of this
Agreement.
VIII.8 NOTICES.
All notices or other communications pursuant to this Agreement shall be
in writing and shall be deemed to be sufficient if delivered personally,
telecopied, sent by nationally-recognized, overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to the Company or any Shareholder, to:
Convergent Group Corporation
0000 Xxxxx Xxxxxxxx Xxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
with a copy to:
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15
Holland & Xxxx, LLP
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
if to the Shareholders' Representative:
Xxxxx X. Xxxxxx
00000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
(b) if to any Investor:
InSight Capital Partners, III, L.P.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Nissan, Esq.
All such notices and other communications shall be deemed to have been given and
received (d) in the case of personal delivery, on the date of such delivery, (e)
in the case of delivery by telecopy, on the date of such delivery, (f) in the
case of delivery by nationally-recognized, overnight courier, on the Business
Day following dispatch, and (g) in the case of mailing, on the third Business
Day following such mailing.
VIII.9 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute one agreement.
VIII.10 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
Laws of the State of New York without giving effect to any choice or conflict of
law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the Laws of any jurisdiction
other than the State of New York.
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16
VIII.11 INCORPORATION OF EXHIBITS AND SCHEDULES.
The Exhibits and Schedules identified in this Agreement are incorporated
herein by reference and made a part hereof. Any disclosure made in any Schedule
to this Agreement which should, based on the substance or such disclosure, be
applicable to another Schedule to this Agreement shall be deemed to be made with
respect to such other Schedule regardless of whether or not a specific reference
is made thereto; provided, that the description of such item on a Schedule is
such that the Investors can reasonably ascertain that such disclosure relates to
such other provision of this Agreement.
VIII.12 CONSTRUCTION.
Where specific language is used to clarify by example a general
statement contained herein, such specific language shall not be deemed to
modify, limit or restrict in any manner the construction of the general
statement to which it relates. The language used in this Agreement shall be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict constitution shall be applied against any party.
VIII.13 NON-MERGER OF REPRESENTATIONS AND WARRANTIES.
Except as otherwise expressly provided in this Agreement, the covenants,
representations and warranties shall not merge on and shall survive the Closing
in accordance with the express terms of this Agreement, notwithstanding the
Closing or any investigation made by or on behalf of any party, and shall
continue in full force and effect. The Closing shall not prejudice any right of
one party against any other party in respect of anything done or omitted under
this Agreement or in respect of any right to damages or other remedies.
VIII.14 REMEDIES; SPECIFIC PERFORMANCE.
The parties hereto agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy to which they
are entitled at law or in equity.
VIII.15 JURISDICTION, ETC.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United States
of America sitting in the State of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or any Related Document or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in any such New York State court or, to the extent permitted by
law, in such federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by
-14-
17
suit on the judgment or in any other manner provided by Law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any Related
Document in any New York State or federal court. Each of the parties hereto
irrevocably waives, to the fullest extent permitted by Law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
VIII.16 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT.
VIII.17 INDEPENDENCE OF COVENANTS AND REPRESENTATIONS AND WARRANTIES.
All covenants hereunder shall be given independent effect so that if a
certain action or condition constitutes a default under a certain covenant, the
fact that such action or condition is permitted by another covenant shall not
affect the occurrence of such default, unless expressly permitted under an
exception to such initial covenant. In addition, all representations and
warranties hereunder shall be given independent effect so that if a particular
representation or warranty proves to be incorrect or is breached, the fact that
another representation or warranty concerning the same or similar subject matter
is correct or is not breached will not affect the incorrectness of or a breach
of a representation and warranty hereunder. The Exhibits and Schedules attached
hereto are hereby made part of this Agreement in all respects.
* * *
-15-
18
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement as of the date first written above.
CONVERGENT GROUP CORPORATION
By: /s/ XXXXX X. XXXXXXXXXX, XX.
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxx, Xx.
Title: Chief Executive Officer
SHAREHOLDERS' REPRESENTATIVE
By: /s/ XXXXX X. XXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxx
INVESTORS' REPRESENTATIVE
INSIGHT CAPITAL PARTNERS III, L.P.
(Solely in respect of its obligations
as the Investors' Representative)
By: InSight Venture Associates III, L.L.C.
its General Partner
By: /s/ XXXXX XXXXXXX
--------------------------------------
Name:
Title:
19
INVESTORS:
INSIGHT CAPITAL PARTNERS III, L.P.
By: InSight Venture Associates III, L.L.C.
its General Partner
By: /s/ XXXXX XXXXXXX
------------------------------------
Name:
Title:
INSIGHT CAPITAL PARTNERS III
(CAYMAN), L.P.
By: InSight Venture Associates III, L.L.C.
its General Partner
By: /s/ XXXXX XXXXXXX
------------------------------------
Name:
Title:
20
INSIGHT CAPITAL PARTNERS III (CO-
INVESTORS), L.P.
By: InSight Venture Associates III,
L.L.C., its General Partner
By: /s/ XXXXX XXXXXXX
--------------------------------
Name:
Title:
UBS CAPITAL II LLC
By: /s/ [ILLEGIBLE]
--------------------------------
Name:
Title:
By: /s/ [ILLEGIBLE]
--------------------------------
Name:
Title:
WI SOFTWARE INVESTORS LLC
By: Wexford Management LLC, its
investment manager
By: /s/ XXXXXX XXXXX
--------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
IMPRIMIS SB LP
By: Imprimis GP LLC, its General
Partner
By: /s/ XXXXXX XXXXX
--------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
21
GS PRIVATE EQUITY PARTNERS II, L.P.
By: GS PEP II Advisors, L.L.C., General Partner
By: GSAM Gen-Par, L.L.C., Managing Member
By: /s/ XXXXX X. XXXX
---------------------------
Name: Xxxxx X. Xxxx
Title: Director
GS PRIVATE EQUITY PARTNERS II
OFFSHORE, L.P.
By: GS PEP II Offshore Advisors, Inc., General
Partner
By: /s/ XXXXX X. XXXX
--------------------------
Name: Xxxxx X. Xxxx
Title: Director
GS PRIVATE EQUITY PARTNERS III, L.P.
By: GS PEP III Advisors, L.L.C., General Partner
By: GSAM Gen-Par, L.L.C., Managing Member
By: /s/ XXXXX X. XXXX
--------------------------
Name: Xxxxx X. Xxxx
Title: Director
GS PRIVATE EQUITY PARTNERS III
OFFSHORE, L.P.
By: GS PEP III Offshore Advisors, Inc., General
Partner
By: /s/ XXXXX X. XXXX
--------------------------
Name: Xxxxx X. Xxxx
Title: Director
22
NBK/GS PRIVATE EQUITY PARTNERS, L.P.
By: GS PEP Offshore Advisors (NBK), Inc.,
General Partner
By: /s/ XXXXX X. XXXX
--------------------------
Name: Xxxxx X. Xxxx
Title: Director
--------------------------
Xxxxxxx Xxxxxxxx
--------------------------
Xxxxxxx X. Xxxxx
23
NBK/GS PRIVATE EQUITY PARTNERS, L.P.
By: GS PEP Offshore Advisors (NBK), Inc.,
General Partner
By:
---------------------------------
Name:
Title:
/s/ XXXXXXX XXXXXXXX
------------------------------------
Xxxxxxx Xxxxxxxx
[SIGNATURE PAGE TO THE STOCK PURCHASE AND REDEMPTION AGREEMENT]
24
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxx X. Xxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxx X. Xxxxxx
-------------------------
Date
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SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxx X. Xxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxx X. Xxxxxx
-------------------------
Date
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SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxx Xxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxx Xxxxxx
-------------------------
Date
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25
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxx Xxxxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxx Xxxxxxxxx
-------------------------
Date
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SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxxx Xxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxxx Xxxxxx
-------------------------
Date
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SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxxx Xxxxxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxxx Xxxxxxxxxx
-------------------------
Date
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26
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxx Xxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxx Xxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxx Xxxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxx Xxxxxxxx
-------------------------
Date
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SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxxx X. Xxxxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Date
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27
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxx Xxxxxxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxx Xxxxxxxxxxx
-------------------------
Date
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SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxx X. XxxXxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxx X. XxxXxxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxxx Xxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxxx Xxxxxx
-------------------------
Date
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28
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxx Xxxxxx
------------------------------
Signature of Shareholder /s/ Xxxx Xxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxxx X. Xxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxxx X. Xxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxx Xxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxx Xxxxxxx
-------------------------
Date
----------------------------------------------
29
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxx X. Xxx
------------------------------
Signature of Shareholder /s/ Xxxxxx X. Xxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxx Xxxxxxxxxx
------------------------------
Signature of Shareholder /s/ Xxx Xxxxxxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxx Xxxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxx Xxxxxxxx
-------------------------
Date
----------------------------------------------
30
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxx X. Xxxxx
------------------------------
Signature of Shareholder /s/ Xxxxx X. Xxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxx X. Xxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxx X. Xxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxx X. Xxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxx X. Xxxxxx
-------------------------
Date
----------------------------------------------
31
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxx Xxxxx
------------------------------
Signature of Shareholder /s/ Xxxxx Xxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxx Xxxxx
------------------------------
Signature of Shareholder /s/ Xxx Xxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxx Xxxx
------------------------------
Signature of Shareholder /s/ Xxxxxx Xxxx
-------------------------
Date
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32
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxx Xxxxx
------------------------------
Signature of Shareholder /s/ Xxxxx Xxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxxxx X. Xxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxxxx X. Xxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxxxx Xxxxxxxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxxxx Xxxxxxxxxxxx
-------------------------
Date
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33
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxx Xxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxx Xxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxx Xxxxx
------------------------------
Signature of Shareholder /s/ Xxxxx Xxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxx X. Xxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxx X. Xxxxxx
-------------------------
Date
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34
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxx Xxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxx Xxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxx XxXxxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxx XxXxxxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxx Merrymah
------------------------------
Signature of Shareholder /s/ Xxxx Merrymah
-------------------------
Date
----------------------------------------------
35
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxx Xxxxxx
------------------------------
Signature of Shareholder /s/ Xxxx Xxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxxx Xxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxxx Xxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxx Xxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxx Xxxxx
-------------------------
Date
----------------------------------------------
36
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxx X. Xxxx
------------------------------
Signature of Shareholder /s/ Xxxxxx X. Xxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxx Xxxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxx Xxxxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxx Xxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxx Xxxxxx
-------------------------
Date
----------------------------------------------
37
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxx Post
------------------------------
Signature of Shareholder /s/ Xxxx Post
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxx Xxxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxx Xxxxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxx X. Xxxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxx X. Xxxxxxxx
-------------------------
Date
----------------------------------------------
38
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxx Xxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxx Xxxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxx Xxxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxx Xxxxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxxx Xxx
------------------------------
Signature of Shareholder /s/ Xxxxxxx Xxx
-------------------------
Date
----------------------------------------------
39
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxxx X. Xxxx
------------------------------
Signature of Shareholder /s/ Xxxxxxx X. Xxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxx Xxxx
------------------------------
Signature of Shareholder /s/ Xxxx Xxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxx Xxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxx Xxxxx
-------------------------
Date
----------------------------------------------
40
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxx Xxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxx Xxxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxx X. Xxxxx
------------------------------
Signature of Shareholder /s/ Xxxx X. Xxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxx X. Xxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxx X. Xxxxxx
-------------------------
Date
----------------------------------------------
41
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxxx X. Xxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxxx X. Xxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxx Xxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxx Xxxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxx X. XxxXxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxx X. XxxXxxxxxx
-------------------------
Date
----------------------------------------------
42
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxx X. Xxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxx X. Xxxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxx X. Xxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxx X. Xxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxx X. Xxxxxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------
Date
----------------------------------------------
43
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxx X. Zastava
------------------------------
Signature of Shareholder /s/ A. Zastava
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxx X. Xxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxx X. Xxxxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxxx Xxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxxx Xxxxxx
-------------------------
Date
----------------------------------------------
44
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxxx X. Xxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxxx X. Xxxxx
-------------------------
Date
----------------------------------------------
SHAREHOLDERS:
Stock Purchase Redemption Agreement
Name of Shareholder Xxxxxx X. XxxXxxxxxx
------------------------------
Signature of Shareholder /s/ Xxxxxx X. XxxXxxxxxx
-------------------------
Date
----------------------------------------------
45
ANNEX I
DEFINITIONS
The following terms used in this Agreement shall have the following
respective meanings:
"Affiliate" means, with respect to any Person, (i) a director, officer
or stockholder of such Person, (ii) a spouse, parent, sibling or descendant of
such Person (or spouse, parent, sibling or descendant of any director or
executive officer of such Person), or (iii) any other Person that, directly or
indirectly through one or more intermediaries, controls, or is Controlled by, or
is under common Control with, such Person.
"Agreement" has the meaning set forth in the caption.
"Business Day" means any day that is not a Saturday, Sunday or a day on
which banking institutions in New York, New York are not required to be open.
"Closing Date" has the meaning set forth in Article III.
"Closing" has the meaning set forth in Article III.
"Common Stock" means the common stock of the Company, $0.01 par value
per share.
"Company" has the meaning set forth in the caption.
"Confidential Information" means information that is not generally known
to the public and that is used, developed or obtained by the Company or any of
its Subsidiaries in connection with the Subject Business, including, but not
limited to, (i) information, observations, procedures and data obtained by any
Shareholder while employed by the Company or any Subsidiary (including those
obtained prior to the date of this Agreement) concerning the business or affairs
of the Company or any Subsidiaries, (ii) products or services, (iii) costs and
pricing structures, (iv) analyses, (v) drawings, photographs and reports, (vi)
computer software, including operating systems, applications and program
listings, (vii) flow charts, manuals and documentation, (viii) data bases, (ix)
accounting and business methods, (x) inventions, devices, new developments,
methods and processes, whether patentable or unpatentable and whether or not
reduced to practice, (xi) customers and customer lists, (xii) other
copyrightable works, (xiii) all production methods, processes, technology and
trade secrets, and (xiv) all similar and related information in whatever form.
Confidential information will not include any information that has ever been
published in a form generally available to the public prior to date any
Shareholder proposes to disclose or use such information. Confidential
information will not be deemed to have been published merely because individual
portions of the information have been published, but only if all material
features comprising such information have been published in combination.
"Contract" means any loan or credit agreement, note, bond, mortgage,
indenture, lease, sublease, purchase order or other agreement, instrument,
permit, concession, franchise or license.
"Control" means, with respect to any Person, the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Encumbrances" means and includes security interests, mortgages, liens,
pledges, charges, easements, reservations, restrictions, clouds, equities,
rights of way, options, rights of first refusal and all other encumbrances,
whether or not relating to the extension of credit or the borrowing of money.
A-1
46
"Governmental Entity" means any court, administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, federal, state, provincial or local.
"Imprimis" means Imprimis SB LP, a Delaware limited partnership.
"InSight" means InSight Capital Partners III, L.P., a Delaware limited
partnership.
"InSight Cayman" means InSight Capital Partners III (Cayman), L.P., a
company of limited liability under the law of the Cayman Islands.
"InSight Co-Investor" means InSight Capital Partners III (Co-Investor),
L.P., a Delaware limited partnership.
"Investors" has the meaning set forth in the caption.
"Investors' Representative" means Insight.
"Law" means all international, European Union, national, federal, state
or local laws (both common and statute law and civil and criminal law) and all
subordinated legislation and regulatory codes of practice (including without
limitation, statutory instruments, guidance notes, circulars, directives,
decisions, rules, regulations, treaties and conventions) or Order of any
Governmental Entity.
"Liability" means any liability or obligation, whether known or unknown,
asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated
or unliquidated and whether due or to become due, regardless of when asserted.
"Losses" means any and all losses, claims, shortages, damages,
liabilities, expenses (including reasonable attorneys' and accountants' and
other professionals' fees), assessments, Tax deficiencies and Taxes (including
interest or penalties thereon) arising from or in connection with any such
matter that is the subject of indemnification under Article VIII.
"New Common Stock" means the Company's common stock, $0.001 par value,
created in the Restated Charter.
"New Series A Preferred Stock" means the Company's Series A Convertible
Participating Preferred Stock, $0.001 par value per share, having the rights,
privileges and preferences set forth in the Restated Charter.
"Non-Compete Period" has the meaning set forth in Section 7.l(c)(i).
"Orders" means judgments, writs, decrees, compliance agreements,
injunctions or orders of any Governmental Entity or arbitrator.
"Party" means any party to this Agreement now, or by amendment.
"Permits" means all permits, licenses, authorizations, registrations,
franchises, approvals, certificates, variances and similar rights obtained, or
required to be obtained, from Governmental Entities.
"Person" shall be construed broadly and shall include an individual, a
partnership, a corporation, a limited liability company, an association, a joint
stock company, a trust, a joint venture, an unincorporated organization or a
Governmental Entity (or any department, agency or political subdivision
thereof).
"Potential Transaction" has the meaning set forth in Section 7.4.
A-2
47
"Purchase" has the meaning set forth in Section 1.1(a).
"Purchased Shares" has the meaning set forth in Section 1.1(a).
"Purchased Shares Consideration" has the meaning set forth in Section
1.1(b).
"Redeemed Shares Consideration" has the meaning set forth in Section
1.2(b).
"Redeemed Shares" has the meaning set forth in Section 1.2(b).
"Redemption" has the meaning set forth in Section 1.2(b).
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of the Closing Date among the Company, the Investors and the other
parties thereto.
"Related Documents" means the Shareholders' Agreement, the Employment
Agreements, the Registration Rights Agreement and the Restated Charter.
"Released Persons" has the meaning set forth in Section 7.6.
"Restated Charter" means the Company's Restated Certificate of
Incorporation.
"Shareholders" has the meaning set forth in the caption.
"Shareholders' Agreement" means the Shareholders' Agreement dated as of
the Closing Date among the Company, the Investors and the other parties thereto.
"Shareholders' Percentages" means such shareholder's pro rata portion of
the Common Stock.
"Shareholders' Representative" has the meaning set forth in Section
7.5(a).
"Subject Business" means consulting and software integration services to
the utility industry, state and local governments and other Persons or
entities.
"Subsidiary" means, with respect to any Person, any other Person of
which the securities having a majority of the ordinary voting power in electing
the board of directors (or other governing body), at the time as of which any
determination is being made, are owned by such first Person either directly or
through one or more of its Subsidiaries.
"Taxes" means, with respect to any Person, (i) all income taxes
(including any tax on or based upon net income, gross income, income as
specially defined, earnings, profits or selected items of income, earnings or
profits) and all gross receipts, sales, use, ad valorem, capital and transfer,
transfer, franchise, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property or windfall profits taxes,
alternative or add-on minimum taxes, customs duties and other taxes, fees,
assessments or charges of any kind whatsoever, together with all interest and
penalties, additions to tax, surtaxes and other additional amounts imposed by
any taxing authority (domestic or foreign) on such entity (if any) and (ii) any
liability for the payment of any amount of the type described in the immediately
preceding clause (A) as a result of being a "transferee" (within the meaning of
Section 6901 of the Code or any other applicable Law) of another entity or a
member of an affiliated or combined group.
"Territory" has the meaning set forth in Section 7.1(c)(i).
"Transactions" means the transactions relating to the recapitalization
of the Company, as the same are described in the Information Statement.
A-3
48
"UBS" means UBS Capital II LLC, a Delaware limited liability company.
"WISI" means WI Software Investors LLC, a Delaware limited liability
company.
"Work Product" shall mean all inventions, innovations, improvements,
technical information, systems, software developments, methods, designs,
analyses, drawings, reports, service marks, trademarks, tradenames, logos and
all similar or related information (whether patentable or unpatentable) which
relates to the Company's or any of its Subsidiaries' actual or anticipated
business, research and development or existing or future products or services
and which are conceived, developed or made by the Shareholder (whether or not
during usual business hours and whether or not alone or in conjunction with any
other Person) while employed by the Company (including those conceived,
developed or made prior to the date of this Agreement) together with all patent
application, letters patent, trademark, tradename and service xxxx application
or registrations, copyrights and reissues thereof that may be granted for or
upon any of the foregoing.
A-4
49
SCHEDULE 6.2
------------
INVESTORS' BROKERS
None.
A-5
50
SCHEDULE I
--------------------------------------------------------------------------------
LIST OF INVESTORS
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SHARES PURCHASED SHARES
PURCHASED FROM CONSIDERATION
INVESTOR SHAREHOLDERS PAID
-------------- --------------------- -----------------
InSight 1,003,727 $ 1,089,010
--------- -------------
InSight Cayman 427,009 $ 463,291
--------- -------------
Total 1,430,736 $1,552,301.00
--------- -------------
51
Common New Preferred
Shares Shares Purchase Redeemed Redemption
Shareholder Exchanged Received(1) Price Shares Price
----------- --------- ------------- -------- --------- ----------
EAS Trust 196,319 196,319 $213,000
RBS Trust 196,319 196,319 $213,000
Xxxxx X. Xxxxxx 211,342 211,342 $229,299
Xxxxxxx X. Xxxxx 56,100 56,100 $ 60,867
Xxxxx X. Xxxxxx 102,974 102,974 $111,723
Xxxx X. Xxxxxxx 98,360 98,360 $106,717
Xxxxxx X. XxxXxxxxxx 73,632 73,632 $ 79,888
Xxxxxx X. Xxxxxxxxxx 48,718 48,718 $ 52,858
Xxxx X. Zastava 48,718 48,718 $ 52,858
Xxxx X. Xxxxxxx 376,383 376,383 $408,364
Xxxxxxxx X. Xxxxx 19,142 19,142 $ 20,768
Xxxxxxx X. Xxxxxx 766 766 $ 831
Xxxx X. Xxxxxxxx 1,963 1,963 $ 2,130
Xxx Xxxxxx 54,775 $59,640
Xxxxxx Xxxxxx 18,831 $20,503
Xxxx Xxxxxxxxx 1,901 $ 2,070
Xxxxxxx X. Xxxxxx 5,869 $ 6,390
Xxxx Xxxxxxxxxx 978 $ 1,065
Xxxxx Xxxxxx 19,562 $21,300
Xxxxx Xxxxxxxx 1,901 $ 2,070
Xxxxx Xxxxxxxxx 3,912 $ 4,260
Xxxxx Xxxxxxxxxxx 1,588 $ 1,730
Xxxxxxx X. Xxxxx 9,441 $10,279
Xxxx X. Xxxxxx 49,521 $53,919
Xxxx Xxxxxx 66,512 $72,420
Xxxx Xxxxxxx 22,008 $23,963
------------------------
(1) All new Preferred Shares received upon exchange for Common Shares are
being sold to the Investors for the Purchase Price set forth in the adjacent
column.
52
COMMON NEW PREFERRED
SHARES SHARES PURCHASE REDEEMED REDEMPTION
SHAREHOLDER EXCHANGED RECEIVED(1) PRICE SHARES PRICE
----------- --------- ------------- -------- -------- ----------
Xxxxxx X. Xxx 42,302 $46,059
Xxx Xxxxxxxxxx 978 $1,065
Xxxxx Xxxxxxxx 1,588 $1,730
Xxxxx X. Xxxxx 12,594 $13,713
Xxx Xxxxxxx 16,507 $17,973
Xxxxxx X. Xxxxxx 23,596 $25,692
Xxxxx Xxxxxx 19,562 $21,300
Xxxxx Xxxxx 1,565 $1,704
Xxxxx X. Xxxxx 2,543 $2,769
Xxx Xxxxx 978 $1,065
Xxxxxx X. Xxxx 35,212 $38,340
Xxxxx Xxxxx 39,125 $42,600
Xxxxx X. Xxxxxx 39,371 $42,868
Xxxxxx X. Xxxxxxxxxx 32,278 $35,145
Xxxxxxxx X. Xxxxx 5,501 $5,990
Xxxxx Xxxxx 3,912 $4,260
Xxxxxxxx Xxxxxxxxxxxx 13,083 $14,245
Xxxxx Xxxxx 9,781 $10,650
Xxxxxx X. Xxxxxx 20,419 $22,233
Xxxxx Xxxxxx 11,737 $12,780
Xxxxx XxXxxxxxxx 5,869 $6,390
Xxxx Xxxxxxxx 1,956 $2,130
Xxxx Xxxxxx 9,781 $10,650
Xxxxxxx X. Xxxxxx 14,429 $15,711
Xxxxxx X. Xxxxx 9,586 $10,437
Xxxxxxx X. Xxxx 18,831 $20,503
Xxx Xxxxx 65,534 $71,355
Xxxx Xxxxxxxx 978 $1,065
Xxxx Post 5,869 $6,390
Xxxxx Xxxxxx 1,956 $2,130
Xxx Xxxxx 1,956 $2,130
53
Common New Preferred
Shares Shares Purchase Redeemed Redemption
Shareholder Exchanged Received(1) Price Shares Price
----------- --------- ------------- -------- -------- ----------
Xxxxx X. Xxxxxxxx 1,588 $1,730
Xxxxxxx X. Xxxxx 11,006 $11,983
Xxxxxx Xxxxxxx 1,956 $2,130
Xxxx Xxxxxxxx 7,848 $8,546
Xxxxxxx Xxx 31,300 $34,080
Xxxxxxx X. Xxxx 47,196 $51,388
Xxxx Xxxx 13,694 $14,910
Xxxxxx X. XxxXxxxxxx 145,533 $158,459
Xxxxxx Xxxxx 50,620 $55,116
Xxxx Xxxxxxxx 11,370 $12,380
Xxxxx Xxxxxxx 1,588 $1,730
Xxxx X. Xxxxx 27,387 $29,820
Xxxxx X. Xxxxxx 275,636 $300,117
Xxxx X. Zastava 19,684 $21,432
Xxxxxxx Xxxx 782 $852
Xxxx Xxxxxx 0 $0
Xxx Xxxxxxx 1,956 $2,130
Xxxxx Xxxxx 3,912 $4,260
Xxxx Xxxxxx 1,956 $2,130
Xxxxxxx Xxxxxx 1,956 $2,130
Xxxx Xxxxxxxx 1,956 $2,130
Xxxxx Xxxxxx 1,956 $2,130
Xxxxx Xxxxxxxxxxx 1,956 $2,310
TOTALS 1,430,736 1,430,736 $1,552,301 1,389,024 $1,512,394
54
INDEX OF ATTACHMENTS
--------------------
Exhibit A Information Statement
Annex I Definitions
Schedule I Investors
Schedule II Shareholders
