Exhibit 10.2
ANSWERTHINK CONSULTING GROUP, INC.
SERIES A PREFERRED STOCK
PURCHASE AGREEMENT
February 24, 1998
SERIES A PREFERRED
STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT is made as of the 24th day of February, 1998,
by and among (i) AnswerThink Consulting Group, Inc., a Florida corporation (the
"Company"), and (ii) Golder, Thoma, Xxxxxxx, Xxxxxx Fund V, L.P., a Delaware
limited partnership, GTCR Associates V, a Delaware general partnership, MG
Capital Partners II, LP, a Delaware limited partnership, and Xxxxxx Capital
Management, Inc., and each investor in Gator Associates, Ltd., a Florida limited
partnership ("Gator") and Xxxx Ventures, Ltd., a British Virgin Islands
corporation ("Xxxx"), who elects to exercise his, her or its preemptive rights
(each of which is herein referred to as an "Investor").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
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1.1 Sale and Issuance of Series A Preferred Stock. Subject to the
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terms and conditions of this Agreement, each Investor agrees, severally, to
purchase at the Closing (as defined below), and the Company agrees to sell and
issue to each Investor at the Closing, the following number of shares of the
Company's Series A Preferred Stock, $.001 par value (the "Investor Stock") for
the purchase price of $3.00 per share (the "Purchase Price"): (i) an aggregate
of 100,000 shares to Golder, Thoma, Xxxxxxx, Xxxxxx Fund V, L.P. ("GTCRV"), GTCR
Associates V and MG Capital Partners II, LP ("MG") and (ii) an aggregate of
100,000 shares to Xxxxxx Capital Management, Inc. and each investor in Gator and
Xxxx who elects to exercise his, her or its preemptive rights.
1.2 Closing. The purchase and sale shall take place at the offices of
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Xxxxxxxxx Traurig Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx, P.A., 0000 Xxxxxxxx Xxxxxx,
Xxxxx, Xxxxxxx 00000 on or before February 24, 1998 (which time and place are
designated as the "Closing"). At the Closing the Company shall deliver to each
Investor certificates representing the Investor Stock that such Investor is
purchasing against payment of the purchase price therefor by check or wire
transfer.
2. Joinder of Shareholders Agreement and Registration Agreement. By
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execution hereof, Xxxxxx Capital Management, Inc. agrees to be bound by the
provisions of the Shareholders Agreement (the "Shareholders Agreement") dated as
of April 23, 1997, by and among the Company and the shareholders of the Company
from time to time a party to thereto, initially including GTCRV, MG, Gator
Associates, Ltd., a Florida limited partnership ("Gator"), and Xxxx Ventures,
Ltd., a British Virgin Islands corporation ("Xxxx") and each of the individuals
listed on the signature page thereto; and the Registration Agreement (the
"Registration Agreement") dated as of April 23, 1997, by and among the Company
and the shareholders of the Company from time to time a party to thereto,
initially including, GTCRV, MG, Gator and Xxxx and each of the individuals
listed on the signature page thereto; and as if Xxxxxx Capital Management, Inc.
was a "Shareholder" and an "Executive", as such terms are defined therein.
3. Covenants. Each Investor shall be deemed a "Purchaser" for purposes of
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Section 3 of the Purchase Agreement (the "Purchase Agreement") dated as of April
23, 1997, by and among the Company and the shareholders of the Company from time
to time a party to thereto, initially including, GTCRV, MG, Gator and Xxxx and
each of the individuals listed on the signature page thereto.
4. Transfer of Investor Stock. Each of the shares of Investor Stock are
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deemed Investor Stock and Restricted Securities and subject to the terms and
conditions of Section 4 of the Purchase Agreement.
5. Representations and Warranties of the Company. As a material
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inducement to each Investor to enter into this Agreement and purchase the
Investor Stock, the Company hereby represents and warrants to such Investor
that:
5.1 Organization and Corporate Power. The Company is a corporation
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duly organized, validly existing and in good standing under the laws of Florida,
and is qualified to do business in every jurisdiction in which the failure to so
qualify might reasonably be expected to have a material adverse effect on the
financial condition, operating results, assets, operations or business prospects
of the Company and its Subsidiaries taken as a whole. The Company has all
requisite corporate power and authority and all material licenses, permits and
authorizations necessary to own and operate its properties, to carry on its
businesses as now conducted and presently proposed to be conducted and to carry
out the transactions contemplated by this Agreement.
5.2 Capital Stock and Related Matters. The authorized capital stock
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of the Company consists of 100,000,000 shares of Common Stock $0.001 per share
and 7,200,000 shares of Preferred Stock, $0.001 par value per share. As of
December 31, 1997, (i) 46,872,179.88 shares of Common Stock were outstanding,
(ii) 3,346,731.97 shares of Preferred Stock were outstanding (3,653,265.87
shares of previously issued preferred stock have been converted into common
stock) and (iii) 1,387,812 options to purchase shares of Common Stock have been
granted pursuant to the Company's 1997 Stock Option Plan. All outstanding shares
of capital stock of the Company and all shares which may be issued pursuant to
this Agreement will be, when issued in accordance with the terms hereof, duly
authorized, validly issued, fully paid and nonassessable.
5.3 Subsidiaries; Investments. The Company does not own or hold any
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shares of stock or any other security or interest in any other Person or any
rights to acquire any such security or interest, except for The Xxxxxxx Group,
Inc., an Ohio corporation and Delphi Partners, Inc., a New Jersey corporation.
5.4 Authorization; No Breach. The execution, delivery and
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performance of this Agreement has been duly authorized by the Company. This
Agreement constitutes a valid and binding obligation of the Company, enforceable
in accordance with its terms. The execution and delivery by the Company of this
Agreement, the offering, sale and issuance of the Investor Stock hereunder, and
the operation by the Company of its business and the fulfillment of and
compliance with the respective terms hereof and thereof by the Company do not
and will not (i) conflict with or result in a breach of the terms, conditions or
provisions of, (ii) constitute a default under, (iii) result in the creation of
any lien, security interest, charge or encumbrance upon the Company's capital
stock or assets pursuant to, (iv) give any third party the right to modify,
terminate or accelerate any obligation under, (v) result in a violation of, or
(vi) require any authorization, consent, approval, exemption or other action by
or notice to any court or administrative or governmental body pursuant to, the
Articles of Incorporation or bylaws of the Company, or any law, statute, rule or
regulation to which the Company is subject, or any agreement, instrument, order,
judgment or decree to which the Company is a party or by which it or any of the
Executives is bound, including, without limitation, to the Company's knowledge,
any agreement, document or instrument with KPMG Peat Marwick.
5.5 Brokerage. There are no claims for brokerage commissions,
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finders fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement binding
upon the Company. The Company shall pay, and hold each Investor harmless
against, any liability, loss or expense (including, without limitation,
attorneys fees and out-of-pocket expenses) arising in connection with any such
claim.
5.6 Governmental Consent, etc. No permit, consent, approval or
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authorization of, or declaration to or filing with, any governmental authority
is required in connection with the execution, delivery and performance by the
Company of this Agreement or the other agreements contemplated hereby, or the
consummation by the Company of any other transactions contemplated hereby or
thereby.
5.7 Compliance with Agreements. Except for (i) certain payments due
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on January 22, 1998 pursuant to the Employment Agreement with Xxxxxxx Xxxxxxx,
dated October 13, 1997, which are currently being renegotiated and (ii) the
provision which requires the Company to purchase key man
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insurance on Xxx X. Xxxxxxxxx, the Company is in compliance, in all material
respects, with the Revolving Credit Agreement with BankBoston, N.A., dated
November 7, 1997 (the "Credit Agreement") and the Purchase Agreement, and no
default or event of default exists with respect to the Credit Agreement.
6. Miscellaneous.
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6.1 Expenses. The Company agrees to pay, and hold each Investor and
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all holders of Investor Stock harmless against liability for the payment of, (i)
the fees and expenses incurred with respect to the negotiation and execution of
this Agreement and the consummation of the transactions contemplated hereby and
any amendments or waivers (whether or not the same become effective) under or in
respect of this Agreement, (ii) stamp and other taxes, which may be payable in
respect of the execution and delivery of this Agreement or the issuance,
delivery or acquisition of any shares of Investor Stock purchased hereunder, and
(iii) the fees and expenses incurred with respect to the interpretation or
enforcement of the rights granted under this Agreement.
6.2 Remedies. Each holder of Investor Stock shall have all rights
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and remedies set forth in this Agreement and all rights and remedies which such
holders have been granted at any time under any other agreement or contract and
all of the rights which such holders have under any other agreement or contract
and all of the rights which such holders have under any law. Any Person having
any rights under any provision of this Agreement shall be entitled to enforce
such rights specifically (without posting a bond or other security), to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law.
6.3 Investor's Investment Representations. By its acquisition
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thereof, each purchaser of Investor Stock hereby represents that (i) the
Investor Stock to be acquired by such purchaser pursuant to this Agreement will
be acquired for such purchaser's own account and not with a view to, or
intention of, distribution thereof in violation of the Securities Act, or any
applicable state securities laws, and the Investor Stock will not be disposed of
in contravention of the Securities Act or any applicable state securities laws;
(ii) such purchaser is an "accredited investor" and a sophisticated investor for
purposes of applicable foreign and U.S. federal and state securities laws and
regulations and is able to evaluate the risks and benefits of the investment in
the Investor Stock; (iii) such purchaser is able to bear the economic risk of
his investment in the Investor Stock for an indefinite period of time because
the Investor Stock has not been registered under the Securities Act and,
therefore, cannot be sold unless subsequently registered under the Securities
Act or an exemption from such registration is available; (iv) such purchaser has
had an opportunity to ask questions and receive answers concerning the terms and
conditions of the offering of Investor Stock and has had full access to such
other information concerning the Company as it requested; and (v) this Agreement
and each of the other agreements contemplated hereby constitutes (or will
constitute) the legal, valid and binding obligation of such purchaser,
enforceable in accordance with its terms, and the execution, delivery and
performance of this Agreement and such other agreements by such purchaser does
not and will not conflict with, violate or cause a breach of any agreement,
contract or instrument to which such purchaser is a party or any judgment, order
or decree to which such purchaser is subject. Notwithstanding the foregoing,
nothing contained herein shall prevent such purchaser and subsequent holders of
Investor Stock from transferring such securities in compliance with the
provisions of Section 4 of the Purchase Agreement. Each certificate for Investor
Stock shall be imprinted with a legend in substantially the following form:
"The securities represented by this certificate were
originally issued on February ___, 1998, and have not been
registered under the Securities Act of 1933, as amended. The
transfer of the securities represented by this certificate
is subject to the conditions specified in the Series A
Preferred Stock Purchaser Agreement, dated as of February
__, 1998, between the issuer (the "Company") and a certain
investor, and the Company reserves the right to refuse the
transfer of such securities until
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such conditions have been fulfilled with respect to such
transfer. A copy of such conditions shall be furnished by
the Company to the holder hereof upon written request and
without charge."
6.4 Consent to Amendments. Except as otherwise expressly provided
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herein, the provisions of this Agreement may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
holders of 70% of the Investor Stock. No other course of dealing between the
Company and the holder of any Stock or any delay in exercising any rights
hereunder or under the Articles of Incorporation shall operate as a waiver of
any rights of any such holders. For purposes of this Agreement, shares of Stock
held by the Company or any Subsidiaries shall not be deemed to be outstanding.
6.5 Survival of Representations and Warranties. All representations
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and warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, regardless of any
investigation made by any Investor or on its behalf.
6.6 Successors and Assigns. Except as otherwise expressly provided
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herein, all covenants and agreements contained in this 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, and whether or not any express assignment has been made, the
provisions of this Agreement which are for any Investor's benefit as a purchaser
or holder of Investor Stock are also for the benefit of, and enforceable by, any
subsequent holder of such Investor Stock. The rights and obligations of GTCR V
under this agreement and the agreements contemplated hereby may be assigned by
GTCR V at any time, in whole or in part, to any investment fund managed by
Golder, Thoma, Cressey, Rauner, Inc., or any successor thereto.
6.7 Severability. Whenever possible, each provision of this
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Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be 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 Agreement.
6.8 Counterparts. This Agreement may be executed simultaneously in
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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 Agreement.
6.9 Descriptive Headings; Interpretation. The descriptive headings
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of this Agreement are inserted for convenience only and do not constitute a
Section of this Agreement. The use of the word "including" in this Agreement
shall be by way of example rather than by limitation.
6.10 Governing Law. This Agreement shall be governed by and
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construed under the laws of the State of Florida.
6.11 Notices. All notices, demands or other communications to be
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given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable overnight courier service
(charges prepaid) or mailed to the recipient by certified or registered mail,
return receipt requested and posted prepaid. Such notices, demands and other
communications shall be sent to each Investor at the address indicated on
Exhibit A and to the Company at the address of its corporate headquarters or to
such other address or to the attention of such other person as the recipient
party has specified by prior written notice to the sending party.
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6.12 Indemnification. In consideration of the execution and delivery
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of this Agreement by the Investor and the purchase of Convertible Preferred
hereunder, the Company will indemnify and hold harmless each Investor and each
of its present and former respective officers, directors, members, employees,
partners and agents and Affiliates of each of the foregoing (collectively, the
"Indemnitees") from and against any and all actions, causes of action, suits,
losses, costs, liabilities, damages, expenses (irrespective of whether such
Indemnitee is a party to the action for which indemnification hereunder is
sought), including attorney fees and disbursements (collectively, the
"Indemnified Liabilities") incurred by any Indemnitee arising out of or relating
to the breach of the representations and warranties contained in Section 5.4
hereof (including, without limitation, economic losses in its capacity as a
shareholder of the Company). If and to the extent that the covenant included in
this Paragraph 6.12 may be unenforceable for any reason, the Company hereby
agrees to make the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under applicable law.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ANSWERTHINK CONSULTING GROUP, INC.
By:/s/ Xxx X. Xxxxxxxxx
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Xxx X. Xxxxxxxxx
Address:
INVESTORS:
GOLDER, THOMA, XXXXXXX, XXXXXX FUND V, L.P.
By: GTCRV, L.P.
Its: General Partner
By: Xxxxxx Xxxxx, Cressey, Rauner, Inc.
Its: General Partner
By:/s/ Xxxxxxx X. Xxxxxxxxx
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a Principal
GTCR ASSOCIATES V
By: Golder, Thoma, Cressey, Rauner, Inc.
Its: Managing General Partner
By:/s/ Xxxxxxx X. Xxxxxxxxx
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a Principal
MG CAPITAL PARTNERS II, LP
By:[Illegible Signature]
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Its:Manager/Principal
XXXXXX CAPITAL MANAGEMENT, INC.
By:/s/ Xxxxxx X. Xxxxxx
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General Partner
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