Exhibit 10.28
SECOND AMENDMENT TO
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CERTAIN SENIOR MANAGEMENT AGREEMENTS
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This SECOND AMENDMENT TO CERTAIN SENIOR MANAGEMENT AGREEMENTS (this
"SECOND AMENDMENT") is entered into as of _____________ __, 1998, by and among
those executives whose signatures appear on the signature page hereto (the
"EXECUTIVES") of AnswerThink Consulting Group, Inc. (the "COMPANY"), the Company
and those members of the Company's Board of Directors whose signatures appear on
the Consent of Directors attached hereto (the "DIRECTORS").
RECITALS
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A. Executives Xxxxxxxxx, Xxxxx and Xxxxxx have entered into Senior
Management Agreements with the Company dated as of April 23, 1997, as amended
effective March 27, 1998, and Executive Xxxxxx entered into a Senior Management
Agreement with the Company dated as of July 11, 1997, as amended effective March
27, 1998 (the "SENIOR MANAGEMENT AGREEMENTS").
B. The Directors and each of the Executives desire to revise the
respective Senior Management Agreements in certain respects, all pursuant to the
terms and provisions of this Second Amendment.
C. Capitalized terms used but not defined herein have the meanings
assigned to such terms in the Senior Management Agreements.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing premises, and good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties agree as follows:
1. AMENDMENTS TO THE SENIOR MANAGEMENT AGREEMENTS. Effective upon the
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completion of the initial public offering of the Company's Common Stock (the
"OFFERING DATE"):
(A) AMENDMENT TO SECTION 3. Section 3 of each of the Senior
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Management Agreements shall be amended to read as follows:
3. Repurchase Option.
(a) In the event that Executive ceases to be employed by any of
the Company and its Subsidiaries for any reason (the "Termination"), the
Unvested Shares (whether held by Executive or one or more of Executive's
transferees) will be subject to repurchase by the Company, the Investors
and the Other Executives pursuant to the terms and conditions set forth in
this Section 3 (the "Repurchase Option"). Any shares subject to repurchase
pursuant to the Repurchase Option under this Agreement are referred to
herein as "Subject Shares."
(b) In the event of Termination, the purchase price for each
Unvested Share of Common Stock will be Executive's Original Cost for such
share.
(c) The Board may elect to purchase all or any portion of any
class of the Subject Shares by delivering written notice (the "Repurchase
Notice") to the holder or holders of the Executive Stock within 90 days
after the Termination. The Repurchase Notice will set forth the number of
Subject Shares of each class to be acquired from each holder, the aggregate
consideration to be paid for such shares and the proposed time and place
for the closing of the transaction. The number of shares to be repurchased
by the Company shall first be satisfied to the extent possible from the
shares held by Executive at the time of delivery of the Repurchase Notice.
If the number of shares of any class then held by Executive is less than
the total number of shares of such class which the Company elects and is
entitled to purchase pursuant to the Repurchase Option, the Company shall
purchase the remaining shares of such class elected to be purchased from
the other holder(s), pro rata according to the number of shares of such
class held by such other holder(s) at the time of delivery of such
Repurchase Notice (determined as nearly as practicable to the nearest
share).
(d) If for any reason the Company does not elect to purchase all
of the Subject Shares pursuant to the Repurchase Option, each of the
Investors and the Other Executives shall be entitled to exercise the
Repurchase Option for the Subject Shares the Company has not elected to
purchase (the "Available Shares"). As soon as practicable after the
Company has determined that there will be Available Shares, but in any
event within 120 days after the Termination, the Company shall give written
notice (the "Option Notice") to the Investors and the Other Executives
setting forth the number of Available Shares and the purchase price for the
Available Shares. Each Investor and each Other Executive may elect to
purchase any or all of the Available Shares by giving written notice to the
Company within one month after the Option Notice has been given by the
Company. As soon as practicable, and in any event within ten days after
the expiration of the one-month period set forth above, the Company shall
notify each holder of Subject Shares as to the number of shares being
purchased from such holder by the Investors and the Other Executives (the
"Supplemental Repurchase Notice"). At the time the Company delivers the
Supplemental Repurchase Notice to such holder(s), the Company shall also
deliver written notice to the Investors and the Other Executives setting
forth the number of shares each such Person is entitled to purchase, the
aggregate purchase price and the time and place of the closing of the
transaction. If the Investors and Other Executives elect to purchase an
aggregate number of any class of Subject Shares greater than the number of
such class of Subject Shares which such Persons are entitled to purchase
pursuant to the Repurchase Option, such class shall be allocated among the
Investors and Other Executives pro rata based upon the number of shares of
Underlying Common Stock owned by each such Person (but in no event shall
the pro rata share of any such Person result in such Person acquiring a
number of Subject Shares of any class in excess of the number of such class
requested to be purchased by such Person). If the number of shares of any
class then held by Executive is less than the total number of
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shares of such class which the Investors and the Other Executives have
elected and are entitled to purchase pursuant to the Repurchase Option,
such Persons shall purchase the remaining shares elected to be purchased
from the other holder(s) of Non-Restricted Executive Stock under this
Agreement, pro rata according to the number of shares of Non-Restricted
Executive Stock of such class held by such other holder(s) at the time of
delivery of such Repurchase Notice (determined as nearly as practicable to
the nearest share).
(e) The closing of the purchase of Subject Shares pursuant to the
Repurchase Option shall take place on the date designated by the Company in
the Repurchase Notice or Supplemental Repurchase Notice, which date shall
not be more than one month nor less than five days after the delivery of
the last such notice. The Company will pay for the Subject Shares to be
purchased by it pursuant to the Repurchase Option by first offsetting
amounts outstanding under any bona fide debts owed by Executive to the
Company; upon full repayment of such bona fide debts, the Company will make
payment by, subject to Subsection (f) below, a check or wire transfer of
funds. Each Investor and Other Executive will pay for Subject Shares to be
purchased pursuant to the Repurchase Option by check or wire transfer of
funds. Each purchaser of Subject Shares pursuant to the Repurchase Option
will be entitled to receive customary representations and warranties from
the sellers regarding such sale and to require all sellers' signatures be
guaranteed.
(f) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Subject Shares by the Company shall be
subject to applicable restrictions contained in the Florida Business
Corporation Act and in the Company's and its Subsidiaries' debt and equity
financing agreements. If any such restrictions prohibit the repurchase of
Subject Shares hereunder which the Company is otherwise entitled or
required to make, the Company may make such repurchases as soon as it is
permitted to do so under such restrictions.
(g) The Executive and the Company may agree at any time to
exchange any number of Restricted Shares held by the Executive to the
Company for an equal number of shares of the Company's Common Stock (the
"Exchange Shares"). The Exchange Shares received by the Executive shall
not be deemed to be Restricted Shares for purposes of this Agreement or
the Restricted Securities Agreement. Any Exchange Shares so received shall
vest immediately upon receipt by the Executive, and shall not be subject to
the Repurchase Option contained in this Section 3.
(B) AMENDMENT TO SECTION 4. Section 4 of each of the Management
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Agreements is hereby amended by deleting the previous text in its entirety.
(C) AMENDMENT TO SECTION 6. Section 6 of each of the Management
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Agreements is hereby amended by deleting the previous text in its entirety.
2. EFFECTIVE DATE. This Second Amendment shall be effective as of the Offering
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Date.
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3. COUNTERPARTS; FACSIMILE TRANSMISSION. This Second Amendment may be executed
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in any number of separate counterparts and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A party's
signature appearing on this Second Amendment sent by facsimile transmission
shall be binding as evidence of that party's acceptance and agreement to the
terms hereof.
IN WITNESS WHEREOF, the parties have caused this Second Amendment to
Certain Senior Management Agreements to be executed as of the date first written
above.
THE EXECUTIVES: ANSWERTHINK CONSULTING GROUP, INC.
By:
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Xxx X. Xxxxxxxxx, President
Xxxxx Xxxxxx
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Xxx X. Xxxxxxxxx
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Xxxxx X. Xxxxx
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Xxxxxxx X. Xxxxxx, III
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