EXHIBIT 10.4
SECOND AMENDED AND RESTATED
---------------------------
REGISTRATION RIGHTS AGREEMENT
-----------------------------
(INVESTORS AND EXECUTIVES)
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
wholly-owned subsidiary of the Company ("ACG-DELAWARE") and each of the
shareholders listed on SCHEDULE 1 hereto (the "SHAREHOLDERS").
----------
WHEREAS, the Company and the Shareholders entered into that certain
Registration Agreement dated as of April 23, 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 "GTCR GROUP" consists of the Shareholders identified as such
on SCHEDULE 1, and Registrable Securities (as hereinafter defined) held by the
----------
GTCR Group are referred to herein as "GTCR GROUP REGISTRABLE SECURITIES";
WHEREAS, the "XXXXXX GROUP" consists of the Shareholders identified as such
on SCHEDULE 1, and Registrable Securities held by the Xxxxxx Group are referred
----------
to herein as "XXXXXX GROUP REGISTRABLE SECURITIES" (GTCR Group Registrable
Securities and Xxxxxx Group Registrable Securities are referred to herein
collectively as "INVESTOR REGISTRABLE SECURITIES");
WHEREAS, Registrable Securities held by Shareholders who are identified as
"Executives" on SCHEDULE 1 are referred to herein as "EXECUTIVE REGISTRABLE
----------
SECURITIES";
WHEREAS, prior to the Effective Time, all shares of preferred stock of the
Company will be converted into shares of Common Stock;
WHEREAS, the Shareholders who are executing this Amended and Restated
Registration Rights Agreement (the "REQUIRED SHAREHOLDERS") hold, collectively:
(i) at least 70% of the "Registrable Securities," as such term is defined
in the Prior Agreement; (ii) a majority of the GTCR Investor Registrable
Securities; and (iii) a majority of the Xxxxxx Registrable Securities;
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.
----------------------------------------------
(A) EFFECTIVE TIME. This Amended and Restated Registration Rights
--------------
Agreementshall 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 Amendment shall be
------------------------------
terminated at the Effective Time.
2. DEMAND REGISTRATIONS.
--------------------
(A) REQUESTS FOR REGISTRATION. At any time after the Effective Time
-------------------------
and subject to SECTION 2(B), SECTION 2(C) and SECTION 2(E) below, the holders
------------ ------------ ------------
of a majority of the GTCR Group Registrable Securities and the holders of a
majority of the Xxxxxx Group Registrable Securities may each request
registration under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), of (x) all or any portion of their Registrable Securities on Form S-1 or
any similar long-form registration ("LONG-FORM REGISTRATIONS") and (y) all or
any portion of their Registrable Securities on Form S-2 or S-3 (including
pursuant to Rule 415 under the Securities Act) or any similar short-form
registration ("SHORT-FORM REGISTRATIONS") if available. All registrations
requested pursuant to this SECTION 2(A) are referred to herein as "DEMAND
------------
REGISTRATIONS." Each request for a Demand Registration shall specify the
approximate number of Registrable Securities requested to be registered and the
anticipated per share price range for such offering. Within ten days after
receipt of any such request, the Company shall give written notice of such
requested registration to all other holders of Registrable Securities and,
subject to SECTION 2(D) below, shall include in
------------
such registration all Registrable Securities with respect to which the Company
has received written requests for inclusion therein within 15 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
-2-
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
-----------------
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) LONG-FORM REGISTRATIONS. The holders of a majority of
-----------------------
the GTCR Group Registrable Securities and the holders of a majority of the
Xxxxxx Group Registrable Securities shall each be entitled to request (i) two
(2) Long-Form Registrations in which the Company shall pay all Registration
Expenses (as hereinafter defined) ("COMPANY-PAID LONG-FORM REGISTRATIONS") and
(ii) an unlimited number of Long-Form Registrations in which the holders of
Registrable Securities shall pay their share of the Registration Expenses as set
forth in SECTION 5 hereof. A registration shall not count as one of the
---------
permitted Long-Form Registrations until it has become effective and no Company-
paid Long-Form Registration shall count as one of the permitted Long-Form
Registrations unless the holders of Registrable Securities are able to register
and sell at least 90% of the Registrable Securities requested to be included in
such registration; provided that in any event the Company shall pay all
Registration Expenses in connection with any registration initiated as a
Company-paid Long-Form Registration whether or not it has become effective and
whether or not such registration has counted as one of the permitted Company-
paid Long-Form Registrations.
(C) SHORT-FORM REGISTRATIONS. In addition to the Long-Form
-----------------------
Registrations provided pursuant to SECTION 2(B), the holders of a majority
------------
of the GTCR Group Registrable Securities and the holders of a majority of the
Xxxxxx Group Registrable Securities shall each be entitled to request an
unlimited number of Short-Form Registrations in which the Company shall pay all
Registration Expenses. Demand Registrations shall be Short-Form Registrations
whenever the Company is permitted to use any applicable short form. After the
Company has become subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), the Company shall use its
best efforts to make Short-Form Registrations on Form S-3 available for the sale
of Registrable Securities.
(D) PRIORITY ON DEMAND REGISTRATIONS. The Company shall not
--------------------------------
include in any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the holders of a majority of
both the GTCR Group Registrable Securities and the Xxxxxx Group Registrable
-3-
Securities. If a Demand Registration is an underwritten offering and the
managing underwriters advise the Company in writing that in their opinion the
number of Registrable Securities and, if permitted hereunder, other securities
requested to be included in such offering exceeds the number of Registrable
Securities and other securities, if any, 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 initially requesting any Demand Registration pursuant
to the first sentence of SECTION 2(A), without adversely affecting the
------------
marketability of the offering, the Company shall include in such registration
prior to the inclusion of any securities which are not Registrable Securities
the number of Registrable Securities requested to be included which in the
opinion of such underwriters can be sold in an orderly manner within the price
range of such offering, pro rata among the respective holders thereof on the
basis of the amount of Registrable Securities owned by each such holder. Unless
(i) the Company, (ii) the holders of a majority of the GTCR Group Registrable
Securities and (iii) the holders of a majority of the Xxxxxx Group Registrable
Securities otherwise agree in writing, any persons other than holders of
Registrable Securities who participate in Demand Registrations which are not at
the Company's expense must pay their share of the Registration Expenses as
provided in SECTION 5 hereof.
---------
(E) RESTRICTIONS ON LONG-FORM REGISTRATIONS. The Company shall not be
---------------------------------------
obligated to effect any Long-Form Registration within 180 days after the
effective date of a previous Long-Form Registration or a previous registration
in which the holders of Registrable Securities were given piggyback rights
pursuant to SECTION 3 and in which there was no reduction in the number
---------
of Registrable Securities requested to be included. The Company may postpone for
up to 180 days the filing or the effectiveness of a registration statement for a
Demand Registration if the Company, the holders of a majority of the GTCR Group
Registrable Securities and the holders of a majority of the Xxxxxx Group
Registrable Securities agree that such Demand Registration would reasonably be
expected to have a material adverse effect on any proposal or plan by the
Company or any of its Subsidiaries to engage in any acquisition of assets (other
than in the ordinary course of business) or any merger, consolidation, tender
offer, reorganization or similar transaction; provided that in such event, the
holders of a majority of the Investor Registrable Securities initially
requesting such Demand Registration shall be entitled to withdraw such request
and, if such request is withdrawn, such Demand Registration shall not count as
one of the permitted Demand Registrations hereunder and the Company shall pay
all Registration Expenses in connection with such registration. The Company may
delay a Demand Registration hereunder only once in any twelve-month period.
(F) SELECTION OF UNDERWRITERS. The holders of a majority of the
-------------------------
Investor Registrable Securities initially requesting any Demand Registration
pursuant to the first sentence of SECTION 2(A) shall have the right to select
------------
the investment banker(s) and managers(s) to administer the offering.
-4-
(G) OTHER REGISTRATION RIGHTS. Except pursuant to that certain
-------------------------
Registration Agreement dated as of August 1, 1997 by and among the Company and
certain of its shareholders (as such Registration Agreement may be amended or
amended and restated from time to time, the "RTI SHAREHOLDERS REGISTRATION
RIGHTS AGREEMENT") or as otherwise provided in this Agreement, the Company shall
not grant to any persons the right to request the Company to register any equity
securities of the Company, or any securities convertible or exchangeable into or
exercisable for such securities, without the prior written consent of the
holders of a majority of the Investor Registrable Securities.
3. PIGGYBACK REGISTRATIONS.
-----------------------
(A) RIGHT TO PIGGYBACK. Whenever the Company proposes to register
------------------
any of its securities under the Securities Act (other than pursuant to a
registration of securities on Form S-4 or Form S-8 under the Securities Act (or
a successor form to either of such Forms) or pursuant to a Demand Registration),
and the registration form to be used may be used for the registration of
Registrable Securities (a "PIGGYBACK REGISTRATION"), the Company shall give
prompt written notice (in any event within three business days after its receipt
of notice of any exercise of demand registration rights other than under this
Agreement) 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.
(B) PIGGYBACK EXPENSES. The Registration Expenses 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 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
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 RTI
Shareholders 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 underwritten secondary registration on behalf of holders of
-5-
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 GTCR Group Registrable Securities, the holders of a majority of the Xxxxxx
Group Registrable Securities and the holders of a majority of the "Registrable
Securities" under the RTI Shareholders 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 RTI Shareholders 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.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
-----------------------
Securities 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 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
-6-
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 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 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);
-7-
(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 doc uments 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 4(D) above, use its best
------------
efforts to cause such Registrable Securities covered by such registration
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).
-8-
5. REGISTRATION EXPENSES.
---------------------
(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 as provided in this Amended and Restated Registration Rights
Agreement, except that the Company shall, in any event, pay its internal
expenses (including, without limitation, all salaries and expenses to its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance and
the expenses and fees for listing the securities to be registered on each
securities exchange on which similar securities issued by the Company are then
listed or on the NASDAQ System.
(B) In connection with each Demand Registration and 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 GTCR Group Registrable
Securities and one counsel chosen by the holders of a majority of the Xxxxxx
Group 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 Demand Registration or Piggyback Registration.
(C) To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
6. INDEMNIFICATION.
---------------
(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
-9-
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 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
-10-
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 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.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No person may
-------------------------------------------
participate in 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.
---------
8. MISCELLANEOUS.
-------------
(A) NO INCONSISTENT AGREEMENTS. The Company shall not enter into
--------------------------
any 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 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 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
-11-
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 violation of the provisions of this Amended and Restated Registration
Rights Agreement.
(D) AMENDMENT AND WAIVERS. Except as otherwise provided herein,
---------------------
the provisions of this Amended and Restated Registration Rights Agreement may be
amended or waived only upon the prior written consent of the Company, the
holders of at least 70% of the Registrable Securities, the holders of a majority
of the GTCR Group Registrable Securities and the holders of a majority of the
Xxxxxx Group Registrable Securities.
(E) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
----------------------
Amended 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 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 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 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, THE RIGHTS AND DUTIES OF THE PARTIES HERETO, AND ANY CLAIMS OR
DISPUTES RELATING THERETO,
-12-
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 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 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.
0000 Xxxxxxxx Xxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxx X. Xxxxxxxxx
President, Chief Executive Officer and
Chairman.
* * * * *
-13-
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Registration Rights Agreement as of the date first written above.
THE COMPANY: ACG-DELAWARE:
ANSWERTHINK CONSULTING GROUP, INC., ANSWERTHINK CONSULTING GROUP, INC.,
a Florida corporation a Delaware corporation
By: /s/ Xxx X. Xxxxxxxxx By: /s/ Xxx X. Xxxxxxxxx
-------------------- --------------------
Xxx X. Xxxxxxxxx Xxx X. Xxxxxxxxx
President, Chief Executive President, Chief Executive
Officer and Chairman Officer and Chairman
REQUIRED SHAREHOLDERS:
[Signature appears here] /s/ Xxxxxxx X. Xxxxxx
------------------------ ---------------------
Xxxxx X. and Xxxxxx Xxxxx Xxxxxxx X. Xxxxxx, III
/s/ Xxxxxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxxx
-------------------- --------------------
Xxxxxxxxx Xxxxxx Xxxxxx X. Xxxxxx
/s/ Xxxx Xxxxxxxxx /s/ Xxxxxx X. Xxxxxx
------------------ --------------------
Xxxx Xxxxxxxxx Xxxxxx X. Xxxxxx
/s/ Xxx X. Xxxxxxxxx [Signatures appear here]
-------------------- ------------------------
Xxx X. Xxxxxxxxx Xxxx and Mercedes San Xxxxxx
/s/ Xxxxx X. Xxxxx [Signature appears here]
------------------ ------------------------
Xxxxx X. Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
---------------------- ---------------------
Xxxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx, Trustee for
Xxxxxxxxx Xxxxxxx Xxxxxxx, Xxxxxxxxx
Xxxxxxx Xxxxxxx and
Xxxxxx X. Xxxxxxx
-14-
Xxxxxx, Xxxxx Xxxxxxx, Xxxxxx Rock Creek Partners, L.P.
Fund V, L.P.
By: /s/ Xxxxx Xxxxxx By: [Signature appears here]
---------------- ------------------------
GTCR Associates V Southeast Investments
International, Ltd.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------- --------------------
Xxxxxx Capital Management, Inc. Southeast Investments, L.P.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------- --------------------
FSC Corp.
By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxx Xxxxx
----------------------- Lighthouse Partners USA, L.P.
Xxxxxx X. Xxxxxxxxx by its General Partner
Archery Capital
/s/ Xxxxx Xxxxx
---------------------------- --------------------
Name: Name: Xxxxx Xxxxx
[Signature appears here]
---------------------------- ------------------------
Name: Name: Pharos Fund Limited
-15-
SCHEDULE 1
----------
SHAREHOLDERS
------------
Executives GTCR Group
---------- ----------
Xxxxx X.X. Xxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxx
Xxxxxxxxx X. Xxxxxxxxx Fund V, L.P.
Xxx X. Xxxxxxxxx GTCR Associates V
Xxxxx X. Xxxxx MG Capital Partners II, L.P.
FSC Corp.
Xxxxxxx X. Xxxxxx, III
Xxxxxx Capital Management, Inc.
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxx X. Xxxxxxx
-16-
Xxxxxx Group
------------
AB Hannells Industrier Xxxxxxxxx Xxxxxxx Xxxxxxx
Xx. Xxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx
Xxx. Xxxxxx Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx X. Xxxxx, cust. for Xxxxxx Xxxxxx Xxxxxxx, Xx.
Xxxxxx X. Xxxxx, UALUGTMA Xxxxx Xxxxxx Xxxxxx
Xxxxxx X. Xxxxx Xxxxx Xxxxxx, cust. for
Atlantic Balanced Fund Xxxxx Xxxx Xxxxxx, UGTMA/FL
Xxx Xxxxx Xxxxx Xxxxxx, cust. for
Bank Xxxxxx Xxxxxxx XX Xxxxx Xxx Xxxxxx, UGTMA/FL
BFC Holdings, Inc. Xxxxxxxxx Corporation
Xxxxxxxx X. Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxx Xxxxxxxxx and Lighthouse Partners USA, L.P.
Xxxxx X. Xxxxxxxxx Family Trust of Xxxxxx X. Low, dated
Xxxxxxxxx Xxxxxx 4/12/96, N. Low, Trustee
Xxxx Xxxxxx Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxx Xxxxxx X. Xxxxxx
Pippa X. Xxxxx Xxxxxxxx Xxxxxxx and
Xxxx Xxxxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxxxx and Alain Oihayon
Xxxxx X. Xxxxxxxxx Erinch X. Xxxxx
Xxxxxxx Xxxxx Xxxx Xxxx and Xxxxxxx Xxxx
Xxxxxx X. Xxxxx X. Xxxxxxx Xxxxxx and
Xxxx Xxxx Xxxxxx Xxxxx X. Xxxxxx
Duff Xxxxxx, cust. for Xxxxx Xxxxxxxx
Xxxxx Xxxx Xxxxxx, UGTMA/FL Pharos Fund Limited
Duff Xxxxxx, cust. for Delaware Charter Guarantee & Trust
Xxxxx Behia Xxxxxx, UGTMA/FL Co., TTEE, FBO S. Xxxxxx Xxxxx
Duff Xxxxxx, cust. for Xxxxxx X. Xxxxxxx, Xx.
Xxxx Xxxxxx, UGTMA/FL Rock Creek Partners, L.P.
Xxxxx Xxxxxx Xxxx San Xxxxxx and
Mila Xxx Xxxxxx Mercedes San Xxxxxx
Xxxx Xxxxxx-Xxxxxxx, cust. for Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx-Xxxxxxx, Southeast Investments
UGTMA/CA International, Ltd.
Xxxxxxxx Xxxxxx Rev. Trust, Southeast Investments, L.P.
T. Xxxxxx and Southampton Ltd.
X. Xxxxxx, TTEES, UDA 8/5/93
-17-
