EXHIBIT 10.13
SENIOR MANAGEMENT AGREEMENT
---------------------------
THIS AGREEMENT is made as of April 23, 1997, between AnswerThink
Consulting Group, Inc., a Florida corporation (the "Company"), and Xxxxxx X.
Xxxxxx ("Executive").
The Company and Executive desire to enter into an agreement pursuant
to which Executive will purchase, and the Company will sell, 300,000 shares of
the Company's Common Stock, par value $.01 per share (the "Common Stock"), and,
if Executive so elects pursuant to the terms of this Agreement. All of such
shares of Common Stock and all shares of Common Stock hereafter acquired by
Executive or one or more of Executive's transferees, other than the Company, an
Investor or a transferee in a Public Sale, are referred to herein as "Executive
Stock." Certain definitions are set forth in Section 6 of this Agreement.
The execution and delivery of this Agreement by the Company and
Executive is a condition to the purchase of shares of Convertible Preferred by
each of Golder, Thoma, Xxxxxxx, Xxxxxx Fund V, L.P., a Delaware limited
partnership ("GTCR V"), MG Capital Partners II, L.P., a Delaware limited
partnership ("MG"), Gator Associates, Ltd., a Florida limited partnership
("Gator"), and Xxxx Ventures, Ltd., a British Virgin Islands Corporation ("Xxxx"
and, collectively with Gator, the "Xxxxxx Group") pursuant to a purchase
agreement between the Company, GTCR V, MG, and the Xxxxxx Group dated as of the
date hereof (as amended from time to time, the "Purchase Agreement"). Certain
provisions of this Agreement are intended for the benefit of, and will be
enforceable by the Investors.
The parties hereto agree as follows:
PROVISIONS RELATING TO EXECUTIVE STOCK
1. Purchase and Sale of Executive Stock.
------------------------------------
(a) Upon execution of this Agreement, Executive will purchase, and the
Company will sell, 300,000 shares of Common Stock at a price of $0.01 per share.
The Company will deliver to Executive the certificates representing such
Executive Stock, and Executive will deliver to the Company a cashier's or
certified check or wire transfer of funds in the aggregate amount of $3,000.
(b) Within 30 days after Executive purchases Common Stock pursuant to
Section 1(a) from the Company, Executive will make an effective election with
the Internal Revenue Service under Section 83(b) of the Internal Revenue Code
and the regulations promulgated thereunder in the form of Annex A attached
hereto.
(c) In connection with the purchase and sale of the Executive Stock
hereunder, Executive represents and warrants to the Company that:
(i) The Executive Stock to be acquired by Executive pursuant to
this Agreement will be acquired for Executive'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
Executive Stock will not be disposed of in contravention of the
Securities Act or any applicable state securities laws.
(ii) Executive 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 Executive Stock.
(iii) Executive is able to bear the economic risk of his
investment in the Executive Stock for an indefinite period of time
because the Executive 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) Executive has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of
Executive Stock and has had full access to such other information
concerning the Company as he has requested.
(v) This Agreement and each of the other agreements
contemplated hereby and by the Purchase Agreement constitutes the
legal, valid and binding obligation of Executive, enforceable in
accordance with its terms and Executive's employment by the Company,
and the execution, delivery and performance of this Agreement and such
other agreements by Executive does not and, to the knowledge of
Executive, will not conflict with, violate or cause a breach of any
agreement, contract or instrument to which Executive is a party
(including, but not limited to, any agreement referred to in clause
(vi) below) or any judgment, order or decree to which Executive is
subject and Executive further represents and warrants that Executive
believes that Executive is not now in breach of any such agreement,
contract or instrument to which Executive is a party.
(vi) Executive is not a party to or bound by any other
employment agreement, noncompete agreement or confidentiality
agreement.
(vii) Executive is a resident of the State of Florida.
(d) As an inducement to the Company to issue the Executive Stock to
Executive, and as a condition thereto, Executive acknowledges and agrees that
(i) neither the issuance of the Executive Stock to Executive nor any provision
contained herein shall entitle Executive to remain in the employment of the
Company and its Subsidiaries or affect the right of the Company to terminate
Executive's employment as contemplated by this Agreement at any time for any
reason and (ii) he will take (or omit to take) all such actions as are necessary
so that the representation and warranty made by Executive and contained in
Section 1(c)(v) remain true and correct at all times as if such representation
and warranty were remade by Executive on each date following the date of this
Agreement.
-2-
2. Restrictions on Transfer of Executive Stock.
-------------------------------------------
(a) Executive Stock is transferable only pursuant to (i) a Public Sale
or (ii) subject to the conditions specified in subparagraph (c) below, Rule 144A
of the Securities and Exchange Commission (or any similar rule then in force) if
such rule is available or any other legally available means of transfer.
(b) In connection with the transfer of any Executive Stock, Executive
shall deliver written notice to the Company describing in reasonable detail the
transfer or proposed transfer, together with an opinion of counsel which (to the
Company's reasonable satisfaction) is knowledgeable in securities law matters to
the effect that such transfer of Executive Stock may be effected without
registration of such Executive Stock under the Securities Act and applicable
state securities laws. In addition, if Executive delivers to the Company an
opinion of counsel that no subsequent transfer of such Executive Stock shall
require registration under the Securities Act, the Company shall promptly upon
such contemplated transfer deliver new certificates for such Executive Stock
which do not bear the Securities Act legend set forth in Section 3. If the
Company is not required to deliver new certificates for such Executive Stock not
bearing such legend, Executive shall not transfer the same until the prospective
transferee has confirmed to the Company in writing its agreement to be bound by
the conditions contained in this paragraph and Section 3.
(c) Upon the request of Executive, the Company shall promptly supply
to Executive or his prospective transferees all information regarding the
Company required to be delivered in connection with a transfer pursuant to Rule
144A of the Securities and Exchange Commission.
(d) If Executive desires to transfer all or a portion of the Executive
Stock (other than in a Public Sale), Executive shall deliver a written notice
(the "Offer Notice") to the Company, the Other Executives and the Investors (the
"Other Holders"). The Offer Notice shall disclose in reasonable detail the
proposed number of shares of Executive Stock to be transferred and the proposed
sale price, terms and conditions of the transfer. Each Other Holder may elect to
purchase all or any portion of the Executive Stock specified in the Offer Notice
at the price and on the terms specified therein by delivering written notice
(the "Reply Notice") of such election to the Company and each Other Holder as
soon as practical but in any event within 20 days after delivery of the Offer
Notice. If the Other Holders elect to purchase an aggregate number of any type
of Executive Stock greater than the number of such type of Executive Stock
specified in the Offer Notice, such type of Executive Stock shall be allocated
among the Other Holders pro rata based upon the number of shares of Underlying
Common Stock owned by each Other Holder desiring to acquire such type of
Executive Stock pursuant to this Section 2(d) (but in no event shall the pro
rata share of any such Other Holder result in such Other Holder acquiring a
number of any type of Executive Stock in excess of the number of such Executive
Stock requested by such Other Holder). If the Other Holders have elected to
purchase all or any portion of the Executive Stock from Executive, the transfer
of such shares shall be consummated as soon as practical after the delivery of
the last Reply Notice, but in any event within 40 days after the delivery of
such notice. To the extent that the other Holders have not elected to purchase
all of the Executive Stock being offered, Executive may, within 90 days after
delivery of the Offer Notice to the Other Holders, transfer such Executive Stock
to one or more third parties at a price no less than the price per share
specified in the Offer Notice and on other terms no more favorable to the
transferees than offered to the Other Holders. The purchase price specified in
any Offer Notice shall be payable solely in cash at the closing of the
transaction or, if mutually agreed upon by the parties, in installments over
time.
-3-
(e) Certain Permitted Transfers. The restrictions contained in this
---------------------------
Section 2 will not apply with respect to (i) transfers of shares of Executive
Stock pursuant to applicable laws of descent and distribution or (ii) transfer
of shares of Executive Stock among Executive's Family Group; provided that such
restrictions will continue to be applicable to the Executive Stock after any
such transfer and the transferees of such Executive Stock have agreed in writing
to be bound by the provisions of this Agreement. In addition, following the
completion of an underwritten Public Offering, Executive, in his sole
discretion, may pledge any of his Executive Stock (other than Restricted Shares
that have not vested under the Restricted Securities Agreement) as collateral
for a loan so long as the pledgee of such stock and the Executive enter in a
pledge agreement in form and substance reasonably satisfactory to the Board,
pursuant to which pledgee, among other things, agrees that pledgee may only sell
such Executive Stock in a Public Sale.
(f) No Transfers of Restricted Shares. Notwithstanding anything
---------------------------------
contained herein to the contrary (including, without limitation, the other
provisions of this Section 2), Executive may not transfer, assign, pledge or
otherwise dispose of any interest in any Unvested Shares (except pursuant to
Section 3 hereof) or any Restricted Shares that remain unvested under the
Restricted Securities Agreement (except pursuant to the Restricted Securities
Agreement).
3. Legend. The certificates representing the Executive Stock will
------
bear a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED AS
OF APRIL 23, 1997, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN
EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER,
CERTAIN REPURCHASE OPTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN A
SENIOR MANAGEMENT AGREEMENT BETWEEN THE COMPANY AND AN EXECUTIVE OF THE
COMPANY DATED AS OF APRIL 23, 1997. A COPY OF SUCH AGREEMENT MAY BE
OBTAINED BY THE HOLDER HEREOF AT THE COMPANY'S PRINCIPAL PLACE OF BUSINESS
WITHOUT CHARGE."
-4-
PROVISIONS RELATING TO EMPLOYMENT
4. Employment. The Company agrees to employ Executive and
----------
Executive accepts such employment for the period beginning as of the date hereof
and ending upon the earlier of one year from the date hereof (or such later date
as agreed by Executive and the Company) and termination pursuant to Section 4(b)
hereof (the "Employment Period").
-5-
(a) Responsibilities. During the Employment Period, Executive will
----------------
perform such services as the Board may reasonably request from time to time for
such compensation as the Board and Executive may agree from time to time.
(b) Termination. The Employment Period will continue until
-----------
Executive's resignation, disability (as determined by the Board in its good
faith judgment) or death or until the Board determines in its good faith
judgment that termination of Executive's employment is in the best interests of
the Company.
5. Confidential Information.
------------------------
(a) Executive acknowledges that the information, observations and date
obtained by him concerning the business and affairs of the Company and its
affiliates and its and their predecessors during the course of his performance
of services for, or employment with, any of the foregoing persons (whether or
not compensated for such services) are the property of the Company and its
affiliates, including information concerning acquisition opportunities in or
reasonably related to the Company's business or industry of which Executive
becomes aware during such period, and any Initial Period or Extended Period.
Therefore, Executive agrees that he will not at any time (whether during or
after the Employment Period) disclose to any unauthorized person or, directly or
indirectly, use for his own account, any of such information, observations or
data without the Board's consent, unless and to the extent that the
aforementioned matters become generally known to and available for use by the
public other than as a direct or indirect result of Executive's acts or
omissions to act or the acts or omissions to act of other senior or junior
management employees of the Company or any of its Subsidiaries. Executive
agrees to deliver to the Company at the termination of his employment, or at any
other time the Company may request in writing (whether during or after the
Employment Period), all memoranda, notes, plans, records, reports and other
documents, regardless of the format or media (and copies thereof), relating to
the business of the Company and its affiliates and its and their predecessors
(including, without limitation, all acquisition prospects, lists and contact
information) which he may then possess or have under his control.
(b) Inventions and Patents. Executive acknowledges that all
----------------------
inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information(whether or not
patentable) that relate to the Company's or any of its Subsidiaries' actual or
anticipated business, research and development or existing or future products or
services and that are conceived, developed, made or reduced to practice by
Executive while employed by the Company and its Subsidiaries or any of its and
their predecessors ("Work Product") belong to the Company or such Subsidiary and
Executive hereby assigns, and agrees to assign, all of
-6-
the above to the Company or such Subsidiary. Any copyrightable work prepared in
whole or in part by Executive in the course of his work for any of the foregoing
entities shall be deemed a "work made for hire" under the copyright laws, and
the Company or such Subsidiary shall own all rights therein. To the extent that
any such copyrightable work is not a "work made for hire," Executive hereby
assigns and agrees to assign to Company or such Subsidiary all right, title and
interest, including without limitation, copyright in and to such copyrightable
work. Executive shall promptly disclose such Work Product and copyrightable work
to the Board and perform all actions reasonably requested by the Board (whether
during or after the Employment Period) to establish and confirm the Company's or
its Subsidiary's ownership (including, without limitation, assignments,
consents, powers of attorney and other instruments).
-7-
GENERAL PROVISIONS
6. Definitions.
-----------
"Executive's Family Group" means Executive's spouse and descendants
------------------------
(whether natural or adopted), any trust solely for the benefit of Executive
and/or Executive's spouse and/or descendants and any retirement plan for the
Executive.
"Executive Stock" will continue to be Executive Stock in the hands of
---------------
any holder other than Executive (except for the Company, an Investor, an Other
Executive and except for transferees in a Public Sale), and except as otherwise
provided herein, each such other holder of Executive Stock will succeed to all
rights and obligations attributable to Executive as a holder of Executive Stock
hereunder. Executive Stock will also include shares of the Company's capital
stock issued with respect to Executive Stock by way of a stock split, stock
dividend or other recapitalization.
-8-
"Investors" means GTCR V, MG, the Xxxxxx Group and each of their
---------
successors, and to the extent permitted to be a subsequent holder of Convertible
Preferred pursuant to the Purchase Agreement, assigns.
"Other Executives" means the Executives, as that term is defined in
----------------
the Purchase Agreement, other than Xxxxxx X. Xxxxxx, each person who is subject
to a Senior Management Agreement substantially similar to this Agreement so long
as such person is employed by the Company.
"Public Offering" means the sale in an underwritten public offering
---------------
registered under the Securities Act of shares of the Company's Common Stock
approved by the board of directors of the Company.
"Public Sale" means any sale pursuant to a registered public offering
-----------
under the Securities Act or any sale to the public pursuant to Rule 144
promulgated under the Securities Act effected through a broker, dealer or market
maker.
"Restricted Securities Agreement" means the Restricted Securities
-------------------------------
Agreement dated as of the date hereof between the Executive and the Investors,
as amended from time to time.
"Restricted Shares" means 150,000 shares of Common Stock purchased
-----------------
under Section 1(a) hereof, which shares are subject to the Restricted Securities
Agreement.
-9-
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time.
"Stockholders Agreement" means the Stockholders Agreement dated as of
----------------------
the date hereof among the Executive, the Other Holders and the Company, as
amended from time to time.
"Subsidiary" means any corporation of which the Company owns
----------
securities having a majority of the ordinary voting power in electing the board
of directors directly or through one or more subsidiaries.
"Transfer" means to sell, transfer, assign, pledge or otherwise
--------
dispose of (whether with or without consideration and whether voluntarily or
involuntarily or by operation of law).
"Underlying Common Stock" means, at any time, the sum of (i) the
-----------------------
number of shares of Common Stock of the Company outstanding as of such time plus
(ii) the number of shares of Common Stock of the Company issuable upon the
exercise or conversion of the Convertible Preferred (as defined in the Purchase
Agreement) at such time.
7. Notices.
-------
All notices, demands or other communications to be 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 postage prepaid. Such notices, demands and other communications
shall be sent to the Executive and each Other Holder at the addresses indicated
on the Schedule of Holders attached to the Shareholders Agreement 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.
8. General Provisions.
------------------
(a) Transfers in Violation of Agreement. Any Transfer or attempted
-----------------------------------
Transfer of any Executive Stock in violation of any provision of this Agreement
shall be void, and the Company shall not record such Transfer on its books or
treat any purported transferee of such Executive Stock as the owner of such
stock for any purpose.
(b) Severability. Whenever possible, each provision of this Agreement
------------
will 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 invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
-10-
(c) Complete Agreement. This Agreement, those documents expressly
------------------
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
Executive hereby releases the Company and its affiliates and its and their
predecessors from any obligation or liability the Company or any of its
affiliates or its or their predecessors owes or owed to Executive or any of his
affiliates and related persons prior to the date hereof.
(d) Counterparts. This Agreement may be executed in separate
------------
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(e) Successors and Assigns. Except as otherwise provided herein, this
----------------------
Agreement shall bind and inure to the benefit of and be enforceable by
Executive, the Company, the Investors, the Other Executives and their respective
successors and permitted assigns (including subsequent holders of Executive
Stock); provided that the rights and obligations of Executive under this
Agreement shall not be assignable except in connection with a permitted transfer
of Executive Stock hereunder.
(f) Choice of Law. The corporate law of the State of Florida will
-------------
govern all questions concerning the relative rights of the Company and its
shareholders. All other questions concerning the construction, validity and
interpretation of this Agreement and the exhibits hereto will-be governed by and
construed in accordance with the internal laws of the State of Florida (in the
case of Sections 4 and 5 hereof) and Illinois (in all other cases), without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of Illinois, the State of Florida or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of Florida (in the case of Sections 4 and 5 hereof) or the State of Illinois
(or the State of Florida, in all other cases).
(g) Remedies. Each of the parties to this Agreement (including the
--------
Investors and the Other Executives) will be entitled to enforce its rights under
this Agreement specifically, to recover damages and costs (including attorney's
fees) caused by any breach of any provision of this Agreement and to exercise
all other rights existing in its favor. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this 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 deposit) for specific performance and/or other injunctive relief in
order to enforce or prevent any violations of any of the provisions of this
Agreement.
(h) Amendment and Waiver. The provisions of this Agreement may be
--------------------
amended and waived only with the prior written consent of at least 70% of the
Company's board of directors and the Executive.
(i) Business Days. If any time period for giving notice or taking
-------------
action hereunder expires on a day which is a Saturday, Sunday or holiday in the
state in which the Company's chief executive office is located, the time period
shall be automatically extended to the business day immediately following such
Saturday, Sunday or holiday.
(j) Indemnification and Reimbursement of Payments on Behalf of
----------------------------------------------------------
Executive. The Company and its Subsidiaries shall be entitled to deduct or
---------
withhold from any amounts owing from the Company or any of its Subsidiaries to
the Executive any federal, state, local or foreign
-11-
withholding taxes, excise taxes, or employment taxes ("Taxes") imposed with
respect to the Executive's compensation or other payments from the Company or
any of its Subsidiaries or the Executive's ownership interest in the Company,
including, but not limited to, wages, bonuses, dividends, the receipt or
exercise of stock options and/or the receipt or vesting of restricted stock. The
Executive shall indemnify the Company and its Subsidiaries for any amounts paid
with respect to any such Taxes, together with any interest, penalties and
related expenses thereto.
(k) Termination. This Agreement (except for the provisions of Section
-----------
7(a)) shall survive the termination of Executive's employment with the Company
and shall remain in full force and effect after such termination.
(l) Adjustments of Numbers. All numbers set forth herein which refer
----------------------
to share prices or numbers or amounts will be appropriately adjusted to reflect
stock splits, stock dividends, combinations of shares and other
recapitalizations affecting the subject class of stock.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
ANSWERTHINK CONSULTING GROUP, INC.
-12-
By: /s/ Xxx X. Xxxxxxxxx
--------------------------------------
Its: CEO
-------------------------------------
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx
-13-
Agreed and Accepted:
GOLDER, THOMA, XXXXXXX, XXXXXX FUND V, L.P.
By: GTCR V, L.P.
Its: General Partner
By: Golder, Thoma, Cressey, Rauner, Inc.
Its: General Partner
By: /s/ Xxxxx Xxxxxx
-------------------------------
Its: Principal
GATOR ASSOCIATES, LTD.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Its:
--------------------------------
XXXX VENTURES, LTD.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Its:
--------------------------------
MG CAPITAL PARTNERS II, L.P.
By: MG Capital Corp.
---------------------------------
Its: General Partner
--------------------------------
By: [SIGNATURE APPEARS HERE]
---------------------------------
Its: Managing Director
--------------------------------
-14-
