EXHIBIT 9.4
FORM OF RESTRICTED SECURITIES AGREEMENT
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THIS AGREEMENT is made as of April 23, 1997, among Golder, Thoma,
Xxxxxxx, Xxxxxx Fund V, L.P., a Delaware limited partnership ("GTCR V"), Gator
Associates, Ltd., a Florida limited partnership ("GATOR"), MG Capital Partners
II, L.P. ("MG"), a Delaware limited partnership, and Xxxx Ventures, Ltd., a
British Virgin Islands corporation ("XXXX" and together with Gator, the "XXXXXX
GROUP") and the individual listed on the signature page hereof under the heading
"Executive".
In order to induce the Investors to enter that certain Purchase
Agreement among AnswerThink Consulting Group, Inc., a Florida corporation (the
"COMPANY"), GTCR V, MG, Gator and Xxxx dated as of the date hereof (as amended
from time to time, the "PURCHASE AGREEMENT") and the agreements contemplated
thereby, Executive and the Investors desire to enter into an agreement pursuant
to which, subject to the terms and conditions contained herein, the Investors
will acquire from the Executive up to [NUMBER OF SHARES APPEARS HERE] shares of
Common Stock, par value $.01 per share (the "COMMON STOCK") of the Company.
Certain definitions are set forth in Section 4 of this Agreement.
The parties hereto, intending to be legally bound, hereby agree as
follows:
1. VESTING OF RESTRICTED SHARES. Restricted Shares will become
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vested upon a Sale of the Company or following a Public Offering in accordance
with this Section 1.
(a) If a Sale of the Company occurs on or prior to the sixth
anniversary of the date of this Agreement, then a number of Restricted Shares
will become vested (whether then held by Executive or an Investor) immediately
prior to such Sale of the Company in accordance with the following schedule
based on (i) the date of such Sale of the Company and (ii) the Target Multiple
after giving effect to such Sale of the Company and assuming that the Investors
own no Restricted Shares or Other Restricted Shares:
DATE OF A SALE TARGET MULTIPLE VESTED UNVESTED
OF THE COMPANY ACHIEVED SHARES SHARES
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On or prior to the Second 10 or greater 300,000 0
Anniversary of this 6 2/3 but less than 10 200,000 100,000
Agreement 3 1/3 but less than 6 2/3 100,000 200,000
less than 3/13 0 300,000
Between the Second and Fourth 10 or greater 300,000 0
Anniversary of this 6 2/3 but less than 10 200,000 100,000
Agreement less than 6 2/3 0 300,000
Between the Fourth and Sixth
Anniversary of this 10 or greater 300,000 0
Agreement less than 10 0 300,000
(b) Following a Public Offering, all of the Restricted Shares will
vest on the first date (the "VESTING DATE") that the average of the Trading
Prices of a share of the Common Stock on each of the 30 consecutive trading days
immediately preceding such date exceeds the Target Price.
(c) Restricted Shares which have become vested pursuant to subsection
(a) or (b) above on or prior to the earlier of (i) immediately prior to a Sale
of the Company or (ii) the sixth anniversary of the date of this Agreement (such
earlier date being hereinafter referred to as the "DETERMINATION DATE") are
referred to herein as "VESTED SHARES," and all other Restricted Shares are
referred to herein as "Unvested Shares."
2. TRANSFER OF RESTRICTED SHARES.
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(a) On the earlier of (i) the date that Executive ceases to be
employed by any of the Company and its Subsidiaries for any reason (the
"TERMINATION") or (ii) the Determination Date, Executive shall be deemed to have
transferred to the Investors for no consideration all Restricted Shares that are
then Unvested Shares and the Investors shall be deemed to have accepted such
transfer and good and marketable title in such shares shall become vested in the
Investors. Such Unvested Shares shall be allocated among the Investors pro rata
based upon the number of shares of Underlying Common Stock then owned by each
such Investor.
(b) If Termination occurs prior to both the Determination Date and
the Vesting Date, then (i) on the Determination Date (if earlier than the
Vesting Date), each Investor shall be deemed to have contributed to the Company
all of the Vested Shares, if any, then held by such Investor and (ii) on the
Vesting Date (if earlier than the Determination Date), each Investor shall be
deemed to have contributed to the Company all Restricted Shares held by it as of
immediately after the Vesting Date. For purposes of clause (i), Restricted
Shares Transferred to the Investors upon the Termination shall vest in the hands
of the Investors pro rata based on the number of Restricted Shares Transferred
to each Investor upon the Termination pursuant to Section 2(a).
3. RESTRICTIONS. Executive may not Transfer any interest in any
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Restricted Shares except in accordance with the Senior Management Agreement. If
the Investors receive Restricted Shares which they may be obligated to
contribute to the Company in accordance with Section 2(b), no Investor shall
Transfer any Restricted Shares so long as such Investor may be obligated to so
contribute Restricted Shares.
4. DEFINITIONS.
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"AFFILIATE" of any Investor means any direct or indirect general or
limited partner of such Investor, or any employee or owner thereof, or any other
person, entity or investment fund controlling, controlled by or under common
control with such Investor, and will include, without limitation, with respect
to GTCR V, Golder, Thoma, Cressey, Rauner, Inc. and its owners and employees.
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"CASH INFLOWS" means, on any date, the sum of all cash, cash
equivalents, promissory obligations and the fair market value of other property
made by the Investors from and after the date of this Agreement with respect to
or in exchange for Investor Stock on or prior to such date.
"CASH OUTFLOWS" means, on any date, the sum of all cash payments and
the fair market value of all other distributions made by the Company from and
after the date of this Agreement with respect to or in exchange for Investor
Stock on or prior to such date, and, including, in the case of a Sale of the
Company expected to occur within five business days after such date, all cash
payments to be received by the Investors with respect to or in exchange for
Investor Stock after giving effect to the consummation of a Sale of the Company;
provided that in the event that property is distributed subject to contingencies
or restrictions that might affect its fair market value (e.g., non-publicly
traded stock, publicly traded stock subject to restrictions or limitations or a
right to receive future consideration pursuant to an earn out), such
distribution shall not be considered a "CASH OUTFLOW". (and the fair market
value of such distribution shall not be determined) until such distributed
property is first sold by an Investor (i) in an underwritten public offering of
securities or (ii) to any person (other than the Company) who is not an
Affiliate of any Investor or the Company. Notwithstanding the foregoing, the
following shall not be considered a distribution: (a) any redemption or
repurchase by the Company of any securities pursuant to an employment agreement,
(b) any recapitalization or exchange of securities of the Company and (c) any
subdivision (by stock split or otherwise) or any combination (by reverse stock
split or otherwise) of any outstanding stock.
"INVESTORS" mean GTCR V, the Xxxxxx Group, MG and each of their
successors, and to the extent permitted to be a subsequent holder of Convertible
Preferred pursuant to the Purchase Agreement, assigns.
"INVESTOR STOCK" shall have the meaning set forth in the Purchase
Agreement.
"OTHER RESTRICTED SHARES" means any shares of Common Stock (as
appropriately adjusted to reflect stock splits, stock dividends, combinations of
shares and other recapitalizations) subject to a Restricted Securities Agreement
substantially similar to this Agreement.
"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.
"RESTRICTED SHARES" means 300,000 of the 700,000 shares of Common
Stock acquired by Executive under the Senior Management Agreement, as
appropriately adjusted to reflect stock splits, stock dividends, combinations of
shares and other recapitalizations.
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"SALE OF THE COMPANY" means any transaction or series of transactions
pursuant to which any person(s) or entity(ies) other than an Investor and its
Affiliates in the aggregate acquire(s) (i) capital stock of the Company
possessing the voting power (other than voting rights accruing only in the event
of a default, breach or event of noncompliance) to elect a majority of the
Company's board of directors (whether by merger, consolidation, reorganization,
combination, sale or transfer of the Company's capital stock, shareholder or
voting agreement, proxy, power of attorney or otherwise) or (ii) all or
substantially all of the Company's assets determined on a consolidated basis;
provided that the term "Sale of the Company" shall not include any sale of
equity or debt securities by the Company in a private or public offering to
other investors selected by GTCR V.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time.
"SENIOR MANAGEMENT AGREEMENT" means the Senior Management Agreement
dated as of the date hereof between the Executive and the Company, as amended
from time to time.
"SHAREHOLDERS AGREEMENT" means the Shareholders Agreement dated as of
the date hereof among the Executive, the Investors, certain other individuals
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.
"TARGET MULTIPLE" means Cash Outflows divided by Cash Inflows.
"TARGET PRICE" means S30.00 per share of Common Stock (as
proportionately adjusted for all subsequent stock splits, stock dividends and
other recapitalizations).
"TRADING PRICE" of a share of Common Stock means, on any trading day,
the closing sale price on the principal securities exchange on which shares of
Common Stock are then listed, or, if there have been no sales on such exchange
on such day, the average of the highest bid and lowest asked prices on such
exchange at the end of such day, or, if on any such day Common Stock is not so
listed, the average of the representative bid and asked prices listed in the
NASDAQ System as of 4:00 P.M., New York time.
"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 Common Stock of the Company outstanding as of such time plus
(ii) the
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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.
5. LEGEND. The certificates representing the Restricted Shares will bear
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a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO RESTRICTIONS ON TRANSFER AND CERTAIN OTHER AGREEMENTS SET
FORTH IN A RESTRICTED SECURITIES AGREEMENT AMONG GOLDER,
THOMA, XXXXXXX, XXXXXX FUND V, L.P., GATOR ASSOCIATES, LTD.,
MG CAPITAL PARTNERS II, L.P., XXXX VENTURES, LTD., 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."
The Company will remove such legend from any Restricted Shares that are no
longer subject to Transfer or contribution pursuant to Section 2.
6. FURTHER ASSURANCES. The parties to this Agreement shall execute and
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deliver such further instruments of conveyance and transfer, and take such
additional action, as the parties may at any time reasonably request in order to
effectuate? consummate, confirm or evidence the provisions of this Agreement.
7. STOCK POWER. In order to secure Executive's obligations hereunder, on
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the date hereof, Executive shall execute and deliver to the Company a stock
power, endorsed in blank, relating to the certificates evidencing shares of
Restricted Shares. All such certificates and related stock powers shall be held
by the Company in trust, and the Company shall deliver them to the parties as
contemplated by the provisions contained in this Agreement.
8. NOTICES. All notices, demands or other communications to be given or
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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 Investor and to each Executive 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.
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9. GENERAL PROVISIONS.
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(a) TRANSFERS IN VIOLATION OF AGREEMENT. Any Transfer or attempted
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Transfer of any Restricted Shares 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 Restricted Shares as the owner
of such stock for any purpose.
(b) SEVERABILITY. Whenever possible, each provision of this
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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.
(c) COMPLETE AGREEMENT. This Agreement, those documents expressly
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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.
(d) COUNTERPARTS. This Agreement may be executed in separate
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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,
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this Agreement shall bind and inure to the benefit of and be enforceable by
Executive, the Company, the Investors and their respective successors and
permitted assigns; provided that the rights and obligations of Executive under
this Agreement shall not be assignable.
(f) CHOICE OF LAW. The corporate law of the State of Florida will
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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 hereto will be governed by and construed in
accordance with the internal laws of the State of Illinois, without giving
effect to any choice of law or conflict of law provision or rule that would
cause the application of the laws of any jurisdiction other than the State of
Illinois.
(g) REMEDIES. Each of the parties to this Agreement (including the
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Investors) 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.
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(H) AMENDMENT AND WAIVER. The provisions of this Agreement may be
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amended and waived only with the prior written consent of each of the Investors
and the Executive.
(I) ADJUSTMENTS OF NUMBERS. All numbers set forth herein which
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refer to share prices or number of shares will be appropriately adjusted to
reflect stock splits, stock dividends, combinations of shares and other
recapitalizations affecting the subject class of stock.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
GATOR ASSOCIATES, LTD.
By: /s/ Xxxxxx X. Xxxxxx
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Its:
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XXXX VENTURES, LTD.
By: /s/ Xxxxxx X. Xxxxxx
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Its:
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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
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Its: Principal
EXECUTIVE
[SIGNATURE APPEARS HERE]
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[NAME APPEARS HERE]
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ADDITIONAL INVESTORS
MG CAPITAL PARTNERS II, L.P.
By: MG Capital Corp.
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Its: General Partner
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By: [SIGNATURE APPEARS HERE]
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Its: Managing Directors
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CONSENT AND ACKNOWLEDGMENT
The undersigned agrees to and acknowledges the form of the Restricted
Securities Agreement attached hereto and agrees to and acknowledges the
transactions referenced in such Restricted Securities Agreement and its
obligation thereunder.
Dated: April 25, 1997 ANSWERTHINK CONSULTING GROUP,
INC.
By: /s/ Xxx X. Xxxxxxxxx
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Its: CEO
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Exhibit A to
Restricted Securities Agreement
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SCHEDULE OF SHARES
No. of
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Name Shares
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Xxx X. Xxxxxxxxx 300,000
Xxxxx X. Xxxxx 300,000
Olysses X. Xxxxxx, III 300,000
Xxxxxx X. Xxxxxx 150,000
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