Exhibit 10.30
INVESTMENT AGREEMENT
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(Series F Preferred Stock)
THIS IS AN INVESTMENT AGREEMENT (this "Agreement") made and dated as of
June 8, 2000 by and:
among: GREENWICH TECHNOLOGY PARTNERS, INC., a Delaware corporation (the
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"Corporation");
and: those parties identified on the "Schedule of Investors" attached to
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this Agreement as Exhibit A under the heading "Investor" (each an
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"Investor" and collectively, the "Series F Investors").
The Corporation and the Series F Investors agree as follows:
1. DEFINITIONS. As used in this Agreement, each of the following
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terms is used as follows:
"Affiliate": With respect to any particular Person, any other Person
directly or indirectly, controlling, controlled by or under common control with
such Person.
"Books and Records": The books and records of the Corporation.
"Business": The computer networking and related consulting business
conducted by the Corporation.
"Common Stock": As defined in Section 4.2.
"Environmental Laws": All Laws governing the use, storage, shipment,
handling, disposal, discharge, release, cleanup, reporting, labeling, warning,
workplace disclosure or monitoring of Hazardous Materials, or otherwise relating
to environmental pollution or environmental protection, including, as may be
applicable to environmental matters, the common law respecting nuisance,
trespass, tortious liability and strict liability.
"Financial Statements": The Corporation's unaudited balance sheet for
the period ending March 31, 2000 and the related statements of income, retained
earnings and changes in financial position for such fiscal period.
"Hazardous Materials": All substances, in whatever form or
concentration, which are classified as hazardous, toxic or dangerous or as
pollutants or contaminants under any Environmental Laws. "Hazardous Materials"
specifically include gasoline, oil and other petroleum products, their fractions
and their constituent and residual compounds and by-products, and radon,
asbestos, lead-based paint, ureaformaldehyde and PCB's. Where under applicable
Environmental Laws a jurisdiction exercises the authority to establish stricter
requirements regarding Hazardous Materials or
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to define Hazardous Materials more inclusively, the stricter requirements and
more inclusive definitions shall apply with respect to the operations of the
Business which are located or conducted within such jurisdictions or which are
otherwise subject to its authority.
"Laws": All material laws, statutes, ordinances, rules, regulations
and other requirements having the force of law promulgated by any governmental
authority, commission, agency or body which are applicable to the Corporation or
the Business, in each case whether local, state, or federal.
"Liabilities": All liabilities or obligations of the Corporation of
any kind or description, whether accrued, absolute, contingent or otherwise.
"Liens": All liens, security interests, pledges, mortgages,
encumbrances, claims, charges, agreements and rights of others of any nature
whatsoever.
"Losses": Any loss, claim, liability, penalty, damage, cost or
expense, whether direct or indirect, special or consequential, including
reasonable attorney's fees.
"Order": Any order, writ, decree, ruling, award, injunction or other
directive or requirement having the force of law issued by any court, tribunal,
administrative agency, other governmental authority, or arbitrator, in each case
whether local, state or federal which is applicable to the Corporation.
"Person": Any natural person, corporation, partnership (general,
limited or otherwise), limited liability company, trust, association, joint
venture, governmental body or agency or other entity having legal status of any
kind.
"Preferred Shareholders": As defined in Section 2.2.
"Preferred Shares": All outstanding Series A Shares, Series B Shares,
Series C Shares, Series D Shares, Series E Shares and Series F Shares.
"Proceeding": Any litigation, lawsuit, arbitration, mediation,
grievance, hearing, investigation or other legal, administrative, governmental
or private party proceeding or enforcement action.
"Registration Rights Agreement Amendment": As defined in Section 2.3.
"Registration Rights Agreement": as defined in Section 2.3
"Series A Shares": Shares of Series A Preferred Stock, $.01 par value
per share, having the rights, preferences, privileges, restrictions and other
matters set forth in the Fourth Amended and Restated Certificate of
Incorporation of the Corporation.
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"Series B Shares": Shares of Series B Preferred Stock, $.01 par value
per share, having the rights, preferences, privileges, restrictions and other
matters set forth in the Fourth Amended and Restated Certificate of
Incorporation of the Corporation.
"Series C Shares": Shares of Series C Preferred Stock, $.01 par value
per share, having the rights, preferences, privileges, restrictions and other
matters set forth in the Fourth Amended and Restated Certificate of
Incorporation of the Corporation.
"Series D Shares": Shares of Series D Preferred Stock, $.01 par value
per share, having the rights, preferences, privileges, restrictions and other
matters set forth in the Fourth Amended and Restated Certificate of
Incorporation of the Corporation.
"Series D Warrants": Warrants to purchase Series D Shares.
"Series E Shares": Shares of Series E Preferred Stock, $.01 par value
per share, having the rights, preferences, privileges, restrictions and other
matters set forth in the Fourth Amended and Restated Certificate of
Incorporation of the Corporation.
"Series F Shares": Shares of Series F Preferred Stock, $.01 par value
per share, having the rights, preferences, privileges, restrictions and other
matters set forth in the Fourth Amended and Restated Certificate of
Incorporation of the Corporation.
"Shareholders' Agreement Amendment": As defined in Section 2.2.
"Shareholders Agreement": As defined in Section 2.2.
2. PURPOSE AND BACKGROUND.
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2.1. Sale of Series F Shares. The Corporation desires to sell to the
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Series F Investors up to an aggregate of 3,750,001 Series F Shares, and the
Series F Investors desire to purchase such Series F Shares from the Corporation
in the amounts and for the aggregate purchase prices as set forth on the
Schedule of Investors attached hereto as Exhibit A, all on the terms and
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conditions set forth in this Agreement.
2.2 Shareholders' Agreement Amendment. Concurrently with this
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Agreement, the Corporation, the Series F Investors and the holders of at least
66 2/3% in interest of the Corporation's Series A Shares, Series B Shares,
Series C Shares, Series D Shares and Series E Shares (such holders of Series A
Shares, Series B Shares, Series C Shares, Series D Shares, Series E Shares and
Series F Shares, collectively, after giving effect to the transactions
contemplated by this Agreement, the "Preferred Shareholders") shall enter into
an Amendment No. 1 (the "Shareholders' Agreement Amendment") to the
Corporation's Amended and Restated Shareholders' Agreement dated September 10,
2000 (the "Shareholders' Agreement") setting forth, among other matters, certain
restrictions on disposition of, and options to purchase or sell, the Preferred
Shareholders' respective shares of the Corporation's Preferred Stock.
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2.3. Registration Rights Agreement Amendment. Concurrently with this
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Agreement, the Corporation, the Series F Investors and the holders at least 50%
in interest of the Corporation's Series D Shares and Series E Shares shall enter
into an Amendment No. 1 (the "Registration Rights Agreement Amendment") to the
Corporation's Amended and Restated Registration Rights Agreement dated September
10, 2000 (the "Registration Rights Agreement") setting forth, among other
matters, certain obligations of the Corporation to register the Series D Shares,
Series E Shares and Series F Shares pursuant to the Securities Act of 1933, as
amended (the "Securities Act").
3. PURCHASE AND SALE; USE OF PROCEEDS. Subject to the terms and
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conditions contained in this Agreement:
3.1. Purchase of Series F Shares. The Corporation hereby sells and
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issues to the Series F Investors, and the Series F Investors hereby purchase
from the Corporation, the number of Series F Shares set forth opposite his, her
or its name on Schedule of Investors attached hereto as Exhibit A, free and
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clear of all Liens, for the respective purchase prices set forth opposite such
name on such Schedule of Investors, and which applicable purchase prices will be
paid by each Series F Investor on or before the date of this Agreement.
3.2. Use of Proceeds. The Corporation shall use the proceeds from
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the sale of the Series F Shares for working capital and general corporate
purposes, including the payment of placement agent fees, for the expansion of
the Corporation's business, for capital expenditures and for potential
acquisitions.
4. THE CORPORATION'S REPRESENTATIONS AND WARRANTIES. Except as set
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forth in the Schedule of Exceptions attached hereto as Exhibit B, the
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Corporation makes the following representations and warranties to the Series F
Investors:
4.1. Organization and Authority. The Corporation is a corporation
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duly organized, validly existing and in good standing under the Laws of the
State of Delaware. The Corporation has full corporate power and authority to
own its assets and to carry on the Business as presently conducted. The
Corporation is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the failure to so qualify would have a
material adverse effect on the Corporation's business, properties or financial
condition. Except as listed in Schedule 4.1 of the Schedule of Exceptions, the
Corporation has no subsidiaries and owns no capital stock or other equity
interests in any Person. The execution, delivery and performance of this
Agreement, the Shareholders' Agreement Amendment and the Registration Rights
Agreement Amendment have been duly authorized by the Corporation's Board of
Directors and shareholders, and no further corporate or other action is required
on the part of the Corporation in order to authorize this Agreement, the
Shareholders' Agreement Amendment or the Registration Rights Agreement Amendment
or the transactions contemplated hereby or thereby, including, without
limitation, the issuance of the Series F Shares to the Series F Investors,
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as set forth on the Schedule of Investors and the issuance of the shares of
Common Stock upon conversion of the Series F Shares. Each of this Agreement, the
Shareholders' Agreement Amendment and the Registration Rights Agreement
Amendment is the legal, valid and binding obligation of the Corporation, duly
enforceable against the Corporation in accordance with its terms.
4.2. Capitalization. The Corporation's authorized capital stock
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consists solely of 110,000,000 shares, 71,074,781 of which have been designated
common stock, par value $.01 per share (the "Common Stock"), of which 3,047,177
shares are issued and outstanding, and 38,925,219 of which have been designated
preferred stock, par value $.01 per share (the "Preferred Stock"). 4,100,000 of
the authorized shares of Preferred Stock are designated as "Series A Preferred
Stock", all of which are issued and outstanding, 5,533,031 of the authorized
shares of Preferred Stock are designated as "Series B Preferred Stock", all of
which are issued and outstanding, 4,206,666 of the authorized shares of
Preferred Stock are designated as "Series C Preferred Stock", all of which are
issued and outstanding, 9,487,179 of the authorized shares of Preferred Stock
are designated as "Series D Preferred Stock", 5,213,675 of which are issued and
outstanding, 11,848,342 of the authorized shares of Preferred Stock are
designated as "Series E Preferred Stock", 10,235,188 of which are issued and
outstanding, and 3,750,001 of the authorized shares of Preferred Stock are
designated as "Series F Preferred Stock", none of which are issued and
outstanding prior to the date hereof. As of the date hereof, 9,150,000 of the
Corporation's authorized but unissued shares of Common Stock have been reserved
for issuance under the Corporation's 1997 Option Plan (the "1997 Plan"), of
which options to purchase 5,908,740 shares of Common Stock are currently
outstanding. A total of 38,925,219 of the Corporation's authorized but unissued
shares of Common Stock have been reserved for issuance upon conversion of the
authorized Series A Shares, Series B Shares, Series C Shares, Series D Shares,
Series E Shares and Series F Shares whether or not currently issued and
outstanding. A total of 4,273,504 of the Corporation's authorized but unissued
Series D Shares have been reserved for issuance upon exercise of the Series D
Warrants. Except as provided above, the Corporation has no other shares of
capital stock reserved for issuance, and no outstanding options or warrants
related to its shares of capital stock or any outstanding securities or
obligations convertible into or exchangeable for, or giving any Person any right
to subscribe for or acquire from the Corporation, any shares of capital stock.
There are no preemptive or other subscription rights with respect to any shares
of capital stock. All of the shares of capital stock which are issued and
outstanding have been duly authorized and validly issued and are fully paid and
are nonassessable. The Series F Shares to be issued to the Series F Investors
pursuant to this Agreement have been duly authorized and when issued in
accordance with this Agreement will be validly issued, fully paid and
nonassessable. All securities issued by the Corporation prior to the date of
this Agreement have been issued in compliance with all applicable securities
laws or pursuant to a valid exemption therefrom.
4.3. No Conflict or Violation. Neither the execution of this
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Agreement, the Shareholders' Agreement Amendment or the Registration Rights
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Agreement Amendment by the Corporation nor the performance by the Corporation of
the transactions contemplated by this Agreement, the Shareholders' Agreement
Amendment or the Registration Rights Agreement Amendment, will result in: (i) a
violation of or conflict with the Corporation's Fourth Amended and Restated
Certificate of Incorporation or bylaws; (ii) a violation of any Laws or any
Order to which the Corporation is subject; (iii) the imposition of any material
Lien against the Corporation's assets; or (iv) a material breach or default
under any mortgage, indenture, deed of trust, real property or personal property
lease, license, material contract, or other agreement.
4.4. Financial Statements. The Financial Statements were prepared in
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accordance with United States generally accepted accounting principles ("GAAP"),
applied on a consistent basis throughout the periods involved (except as may be
indicated in the notes thereto). The Financial Statements present fairly in all
material respects the financial condition and results of operations of the
Corporation of and for the periods covered by the Financial Statements, subject
only to ordinary course adjustments for normal, recurring accruals resulting
from the year-end audit.
4.5. Absence of Certain Changes or Events. Since March 31, 2000, the
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Corporation has operated only in the ordinary course and there has been no: (i)
material adverse change in the business, financial condition or results of
operations of the Corporation, (ii) damage, destruction or loss (whether or not
covered by insurance) involving any of the Corporation's assets; (iii) sale or
lease or other disposition of any of the Corporation's assets, except for
dispositions in the ordinary course; (iv) declaration or payment of any dividend
or distribution on any shares of its capital stock or other equity interests;
(v) repurchase or other acquisition of any shares of its capital stock or other
equity interests or any outstanding securities convertible into shares of
capital stock or of any option, warrant, right, call or commitment relating to
shares of capital stock or other equity interests or any outstanding securities
convertible into shares of capital stock, or, any grant to any Person of any
right to subscribe for or acquire from it, any shares of capital stock or other
equity interests; (vi) the granting or creation by the Corporation of any
material Lien affecting any of the Corporation's assets; or (vii) to the
Corporation's best knowledge, any transaction by the Corporation outside the
ordinary course of business.
4.6. Consents and Approvals. Other than consents obtained prior to
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the Closing and except for the applicable requirements of the Securities Act and
state securities laws, the execution, delivery and performance by the
Corporation of this Agreement, the Shareholders' Agreement Amendment or the
Registration Rights Agreement Amendment and the transactions contemplated hereby
or thereby, do not require the consent, approval or authorization of, or any
declaration, filing, registration or notice with or to any governmental or
regulatory authority, or any other Person, except where the failure to obtain
such consent would not have a material adverse effect on the Corporation.
4.7. Material Agreements. Schedule 4.7 of the Schedule of Exceptions
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contains a complete and correct list, as of the date of this Agreement, of all
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material agreements, contracts, commitments, undertakings and other obligations,
whether written or oral, involving the Corporation or otherwise relating to the
Business, which shall include but are not limited to agreements which entail a
commitment of $100,000 or more. True and complete copies of all written
agreements, contracts and commitments listed in Schedule 4.7 of the Schedule of
Exceptions, including all amendments, have been made available to the Series F
Investors. Each such agreement, contract or commitment is a valid and binding
agreement of the Corporation and is in full force and effect, and neither the
Corporation, nor, to the knowledge of the Corporation, any other party thereto
is in default under the terms of any such agreement, contract or commitment.
4.8. Absence of Litigation. There is no material Proceeding which is
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either pending or, to the Corporation's best knowledge, threatened against the
Corporation or otherwise involving its assets or the Business, and there are no
outstanding Orders against the Corporation or with respect to the Business or
the Corporation's assets.
4.9. Compliance with Laws. The Corporation is in compliance in all
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material respects, with the Laws applicable to the Corporation, except where the
failure to do so would not have a material adverse effect on the Corporation.
The Corporation has complied in all material respects with the Laws applicable
to the Corporation, except where the failure to do so did not have a material
adverse effect on the Corporation. The Corporation has not received notice of
violation or alleged violation of any Laws relating to the conduct of the
Business which has not been rectified or which remains outstanding.
4.10. Accounts Receivable. All accounts receivable reflected on the
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Financial Statements and all accounts receivable of the Business that have
arisen since the date of the Financial Statements derive from bona fide
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transactions in the ordinary course of the Business and are payable on ordinary
terms, less adequate reserves for doubtful accounts as reflected in the Books
and Records. No person has asserted or threatened to assert any counterclaims
or offsetting claims or defenses to collection of the Corporation's accounts
receivable. The Books and Records as of the date of this Agreement reflect an
accurate aging of all accounts receivable. The Corporation is not aware that
any of the accounts receivables as of the date of this Agreement are
uncollectible or are likely to be uncollectible in the ordinary course within 90
days after origination.
4.11. Intellectual Property. Schedule 4.11 of the Schedule of
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Exceptions contains a true and complete listing, as they relate to or are used
in the Business, of all: (i) trademark registrations and applications in the
United States, any state or any other jurisdiction; (ii) common law or
unregistered trademarks; (iii) tradenames, (iv) patents and patent applications;
and (v) registered copyrights (collectively, the "Intellectual Property"). No
proceedings are pending or, to the Corporation's best knowledge, threatened,
which challenge the validity of the Corporation's ownership or use of the
Intellectual Property. All licensing and similar agreements relating to the
Intellectual Property are listed on Schedule 4.11 of the Schedule of Exceptions
and are in full force and effect, and there is no default by the Corporation or
any other party to such agreements. The Corporation has not received notice of
conflict with the asserted rights
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of other Persons. To its best knowledge, the Corporation is not infringing any
patents, trademarks or copyrights and is not misappropriating or violating trade
secrets or other proprietary rights of any other Persons. All executive officers
of the Corporation have executed an agreement containing an assignment of
inventions provision.
4.12. Environmental Matters. The Corporation is in compliance with
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applicable Environmental Laws. To the Corporation's best knowledge, there is no
past or existing event, condition, circumstance or practice or procedure
involving or relating to Hazardous Materials or other environmental matters
which might interfere with or adversely affect the conduct of the Business as
now being conducted, or which would require disclosure, reporting, monitoring,
cleanup, remediation or other action on the part of the Corporation or at the
Corporation's expense, or which might result in the Corporation's being in
violation of or in noncompliance with Environmental Laws.
4.13. Employees. Employees of the Business are employed "at will",
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and, except as otherwise provided in this Agreement, the employment of each
employee may be terminated at any time, without obligation to pay severance or
other payments or benefits. None of the Corporation's employees are represented
by any labor union or other organization and, there have been no attempts by or
on behalf of the Corporation's employees to be represented by a labor union.
There are no controversies pending or, to the Corporation's best knowledge,
threatened between the Corporation and its employees or consultants, present or
former. The Corporation considers its relations with employees to be good.
4.14. Undisclosed Liabilities. To the Corporation's best knowledge,
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neither the Corporation nor the Business is liable for or subject to any
material Liabilities, except material Liabilities adequately and specifically
disclosed or reserved for in the Financial Statements or, if incurred subsequent
to the date of the Corporation's balance sheet included in the Financial
Statements, disclosed and adequately reserved for in the Books and Records.
4.15. Books of Accounts; Returns and Reports; Taxes. The Corporation
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has paid in full all taxes which were due and payable to date, and the Books and
Records reflect appropriate accruals and reserves for taxes in respect of
current periods which are not yet due and payable. The Corporation has duly and
timely filed all tax returns required to have been filed to date in all
applicable jurisdictions with respect to the Business or otherwise, except where
the failure to so file would not have a material adverse effect on the
Corporation. The Corporation has made all deposits required with respect to
withholding taxes for employees of the Business.
4.16. Transactions With Affiliates. The Corporation has no
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outstanding contract, agreement or other arrangement with an Affiliate of the
Corporation with respect to the Business, and none of the Corporation's assets
is owned by or leased, licensed or otherwise used by the Corporation under grant
from any of such Affiliate. There are currently no outstanding shareholder
notes or obligations to related parties of the Corporation.
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4.17. Broker's or Finder's Fees. No broker, finder or other Person
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acting in a similar capacity, other than Credit Suisse First Boston, has acted
directly or indirectly for the Corporation in connection with this Agreement or
the transactions contemplated by this Agreement.
4.18. No Misleading Statements. To the Corporation's knowledge, none
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of this Agreement, the Shareholders' Agreement Amendment, the Registration
Rights Agreement Amendment or any certificate furnished to the Series F
Investors in connection herewith (when read together) contain any untrue
statement of material fact or omit to state any material fact necessary to make
the statements contained herein or therein not misleading in any material
respect.
5. REPRESENTATIONS AND WARRANTIES OF THE SERIES F INVESTORS. Each of
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the Series F Investors makes the following representations and warranties to the
Corporation, severally and not jointly, and each with respect only to itself,
himself or herself:
5.1. Organization and Authority. Such Series F Investor, if not a
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natural person, is duly organized, validly existing and in good standing under
the laws of its jurisdiction of formation. Such Series F Investor has full
power and authority to enter into this Agreement and to perform its, his or her
obligations under this Agreement. The signing, delivery and performance of this
Agreement, the Shareholders' Agreement Amendment and the Registration Rights
Agreement Amendment by such Series F Investor have been duly authorized by all
necessary action on the part of such Series F Investor, and no further action is
required on the part of such Series F Investor in order to authorize this
Agreement, the Shareholders' Agreement Amendment, the Registration Rights
Agreement Amendment or the transactions contemplated hereby or thereby. Each of
this Agreement, the Shareholders' Agreement Amendment and the Registration
Rights Agreement Amendment constitute the legal, valid and binding obligation of
such Series F Investor, duly enforceable against such Series F Investor in
accordance with its terms.
5.2. No Conflict or Violation. Neither the execution and delivery of
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this Agreement, the Shareholders' Agreement Amendment or the Registration Rights
Agreement Amendment by such Series F Investor nor the performance by such Series
F Investor of the transactions contemplated hereby or thereby will result in:
(i) a violation of or conflict with the governing documents of such Series F
Investor, if not a natural person; (ii) a violation of any Laws or any Order to
which such Series F Investor is subject; or (iii) a breach or default under any
mortgage, indenture, deed of trust, real property or personal property lease,
license, contract or other agreement to which such Series F Investor is subject.
5.3. Consents and Approvals. The execution, delivery and performance
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by such Series F Investor of this Agreement, the Shareholders' Agreement
Amendment and the Registration Rights Agreement Amendment and the transactions
contemplated hereby and thereby do not require the consent, approval or
authorization of, or any declaration, filing, registration or notice with or to
any governmental or regulatory
or any other Person other than such consents or approvals which have been
obtained prior to the date of this Agreement.
5.4. Purchase for Investment. (a) Such Series F Investor has
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substantial experience in evaluating and investing in private placement
transactions of securities in companies similar to the Corporation such that
such Series F Investor is capable of evaluating the merits and risks of its
investment in the Corporation and has the capacity to protect its own interests.
Such Series F Investor is either a "qualified institutional buyer" as that term
is defined in Rule 144A promulgated under the Securities Act of 1933 or an
"accredited investor" as that term is defined in Rule 501 promulgated under the
Securities Act of 1933.
(b) Such Series F Investor is acquiring the Series F Shares for
investment, for such Series F Investor's own account, not as a nominee or agent,
and not with the view to, or for resale in connection with, any distribution
thereof. Such Series F Investor understands that the Series F Shares and Common
Stock issuable upon conversion thereof have not been, and will not be when
issued, registered under the Securities Act of 1933 and are being issued
pursuant to a specific exemption from the registration provisions of the
Securities Act of 1933, the availability of which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of the
representations as expressed herein.
(c) Such Series F Investor acknowledges that the Series F Shares and
the Common Stock issuable upon conversion thereof must be held indefinitely
unless subsequently registered under the Securities Act of 1933 or unless an
exemption from such registration is available. Such Series F Investor is aware
of the provisions of Rule 144 promulgated under the Securities Act of 1933 which
permit limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions.
(d) Such Series F Investor understands that no public market now
exits, and that a market may never exist, for any of the securities issued by
the Corporation.
5.5. Broker's or Finder's Fees. No broker, finder or other Persons
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acting in a similar capacity has acted directly or indirectly for such Series F
Investor in connection with this Agreement and the transactions contemplated
hereby.
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6. CLOSING DELIVERIES
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6.1. Closing. The closing of the transactions contemplated by this
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Agreement (the "Closing") shall take place concurrently with the signing and
delivery of this Agreement.
6.2. The Corporation's Closing Deliveries. The Series F Investor's
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obligations to purchase the Series F Shares at the Closing are subject to the
fulfillment by the Corporation or waiver by the affected Series F Investor of
the following conditions at the Closing:
6.2.1. The representations and warranties made by the
Corporation in Section 4 hereof shall be true and correct as of the Closing.
6.2.2. All covenants, agreements and conditions contained in
this Agreement to be performed by the Corporation on or prior to the Closing
shall have been performed or complied with unless waived in writing by the
Series F Investors.
6.2.3. The Corporation shall have obtained all necessary state
securities law permits and qualifications, or have the availability of
exemptions therefrom, required by any state for the offer and sale of Series F
Shares and the Common Stock issuable upon conversion of the Series F Shares.
6.2.4. The Fourth Amended and Restated Certificate of
Incorporation of the Corporation shall have been filed with the Secretary of
State of the State of Delaware.
6.2.5 The Corporation shall deliver a certificate executed by
the Chief Executive Officer of the Corporation, dated as of the Closing,
certifying that the conditions specified in Sections 6.2.1, 6.2.2 and 6.2.4 of
this Agreement have been fulfilled.
6.2.6. The Corporation shall deliver a certificate dated as of
the date of the Closing, of the Secretary of the Corporation certifying as to
(i) the certificate of incorporation and bylaws of the Corporation; and (ii)
resolutions of the Board of Directors and the shareholders of the Corporation
authorizing the execution, delivery and performance of this Agreement, all
documents contemplated by this Agreement and the transactions contemplated by
this Agreement.
6.2.7. The Corporation shall deliver certificates of "good
standing" of the Corporation from the Secretaries of State of the States of
Delaware, Connecticut, New York, New Jersey and the Commonwealth of
Massachusetts.
6.2.8. The Corporation shall deliver stock certificates issued
to the Series F Investors for the number of Series F Shares set forth on the
Schedule of Investors.
6.2.9. The Corporation shall deliver the Shareholders'
Agreement Amendment signed on behalf of the Corporation and by or on behalf of
the holders of the Series A Shares, Series B Shares, Series C Shares, Series D
Shares and Series E Shares.
6.2.10. The Corporation shall deliver the Registration Rights
Agreement Amendment signed on behalf of the Corporation.
6.2.11. The Corporation shall deliver an opinion of Xxxxx,
Xxxxxxx & Xxxxxxxxx, LLP, counsel to the Corporation in the form attached hereto
as Exhibit C.
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6.3. Closing Deliveries of the Series F Investors. The Corporation's
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obligations to sell and issue the Series F Shares at the Closing are subject to
the fulfillment by the Series F Investors or waiver by Corporation of the
following conditions:
6.3.1. The Series F Investors shall deliver to the Corporation
the sum set forth opposite its, his or her name in the Schedule of Investors, by
wire transfer, representing the purchase price of the Series F Shares to be
issued pursuant to this Agreement.
6.3.2. Each Series F Investor shall deliver to the Corporation
the Shareholders' Agreement Amendment signed by such Series F Investor.
6.3.3. Each Series F Investor shall deliver to the Corporation
the Registration Rights Agreement Amendment signed by such Series F Investor.
7. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. All covenants,
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representations and warranties in this Agreement or in any documents delivered
pursuant to this Agreement (A) (other than those in Section 4.1 and 4.2) shall
survive the Closing for a period of 1 (one) year after the Closing and (B)
contained in Sections 4.1 and 4.2 only shall survive the Closing for a period of
3 (three) years after the Closing.
8. INDEMNIFICATION.
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8.1. Indemnification by the Corporation to the Series F Investors.
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The Corporation shall indemnify, defend and hold each of the Series F Investors,
the Affiliates of each Series F Investor, and their respective shareholders,
officers, directors, employees, assignees and successors, harmless against, and
shall reimburse each of the indemnified Persons on demand on account of, any
Losses which may be asserted against, imposed on or incurred by any of them as a
result of or arising out of or in any manner relating or attributable to any
inaccuracy in or breach of the representations, warranties or covenants on the
part of the Corporation in this Agreement or in any document delivered by the
Corporation pursuant to this Agreement.
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8.2. Indemnification by the Series F Investors to the Corporation.
------------------------------------------------------------
Each Series F Investor, severally and not jointly, shall indemnify, defend and
hold the Corporation and the Corporation's officers, directors, employees,
assignees and successors harmless against, and shall reimburse such indemnified
Persons on demand on account of, any Losses which may be asserted against,
imposed on or incurred by any of them as a result of or arising out of or in any
manner relating or attributable to any inaccuracy in or breach of such Series F
Investor's representations or warranties in this Agreement or in any document
delivered by such Series F Investor pursuant to this Agreement; provided
however, such obligation shall not exceed the amount the purchase price paid by
such Series F Investor for the Series F Shares as set forth on the Schedule of
Investors.
9. MISCELLANEOUS.
-------------
9.1. Notices. Notices given pursuant to this Agreement must be in
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writing. They shall be deemed to have been duly given: (i) upon delivery or
refusal to accept delivery, if hand-delivered; (ii) when transmitted, if sent by
fax with confirmed receipt, followed by a "hard" copy delivered by any other
method specified in this Section 10.1; or (iii) one (1) business day after being
deposited for next-day delivery with Federal Express or other national overnight
courier service. In each case, notice shall be addressed to the parties as
follows:
If to the Corporation:
---------------------
Greenwich Technology Partners, Inc.
000 Xxxx Xxxxxx, 0/xx/ Xxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Phone: 000.000.0000
Fax: 000.000.0000
If to the Series F Investors:
----------------------------
To the address of such Series F Investor as set forth
on the Schedule of Investors
or to such other place and with such other concurrent copies as the parties may
subsequently designate by written notice.
9.2. Amendment; Waiver. None of the provisions of this Agreement may
-----------------
be changed, modified, waived or canceled orally or otherwise except in writing,
signed by the Corporation and persons holding at least 662/3% of the then
outstanding Series F Shares (assuming conversion to Common Stock at the
conversion rate then in effect).
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9.3. Binding Effect; Assignment. This Agreement is binding on the
--------------------------
Corporation, the Series F Investors and their respective successors in interest.
No party may assign his or its rights and obligations under this Agreement
without the prior written consent of the other parties. There are no third-
party beneficiaries of this Agreement, and any intention to afford any right or
benefit under this Agreement to any third party is specifically disclaimed.
9.4. Entire Agreement. This Agreement, including the exhibits
----------------
attached hereto, the Shareholders' Agreement Amendment and the Registration
Rights Agreement Amendment embody the entire understanding among the parties
with respect to the subject matter of this Agreement. There are no binding
agreements or understandings among the parties with respect to the transactions
contemplated by this Agreement other than as expressly set forth in this
Agreement, the Shareholders' Agreement Amendment or the Registration Rights
Agreement Amendment.
9.5. Interpretation; Construction.
----------------------------
9.5.1. The terms of this Agreement have been fully negotiated
by the parties in consultation with counsel, and the wording of this Agreement
has been arrived at by all of them as a result of their joint discussions.
Accordingly, no provision of this Agreement shall be construed against a
particular party or in favor of another party merely because of which party (or
its representatives) drafted or supplied the wording for such provision.
9.5.2. Except where otherwise noted in context, all references
to "Sections", "Exhibits" or "Schedules" shall be deemed to refer to the
sections or subsections, as appropriate, exhibits or schedules of this
Agreement.
9.5.3. Section headings appearing in this Agreement are
inserted solely as reference aids for the ease and convenience of the reader;
they shall not be deemed to modify, limit or define the scope or substance of
the provisions they introduce, nor shall they be used in construing the intent
or effect of such provisions.
9.5.4. Where the context requires: (i) use of the singular or
plural incorporates the other, and (ii) pronouns and modifiers in the masculine,
feminine or neuter gender shall be deemed to refer to or include the other
genders.
9.5.5. As used in this Agreement, the terms "include(s)" and
"including" mean "including but not limited to"; that is each case the example
or enumeration which follows the use of either term is illustrative but no
exclusive or exhaustive.
9.6. Expenses. Whether or not the transactions contemplated by this
--------
Agreement are consummated, the Series F Investors shall be responsible for all
fees and expenses incurred by them and the Corporation shall be responsible for
all fees and expenses incurred by the Corporation, including fees of their
respective counsel,
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consultants, accountants and other advisors, incident to the negotiation and
preparation of this Agreement and consummation of the transactions contemplated
by this Agreement.
9.7. Multiple Counterparts. This Agreement may be signed in one or
---------------------
more counterparts, each of which shall be deemed to be an original and all of
which shall be considered one and the same agreement and shall become effective
when each of the parties has signed and delivered a counterpart to the other.
9.8. Further Assurances. The parties agree, upon request and for no
------------------
additional consideration, to sign, acknowledge and deliver any documents and to
do anything else which the other may reasonably request in order to carry out
more completely the purpose and intent of this Agreement consistent with its
terms.
9.9. Governing Law. This Agreement shall be governed by and
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interpreted according to the Laws of the State of Delaware, but without giving
effect to any Delaware choice of law provisions which might otherwise make the
Laws of a different jurisdiction govern or apply.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Corporation and the Series F Investors have
executed this Agreement as of the day and year first above written.
Greenwich Technology Partners, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx
Chief Executive Officer and President
SERIES F INVESTOR:
JUNIPER NETWORKS, INC.
By: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Vice President, General Counsel and Secretary
SERIES F INVESTOR:
BLUE VECTOR
By: /s/ Xxxxxxx Xxxxxxxx
--------------------
Name:
Title:
SERIES F INVESTOR:
AZURE CAPITAL PARTNERS
By: /s/ Xxxx Xxxxxx
------------------
Name:
Title:
EXHIBIT A
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Closing
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Number of Aggregate Purchase Price
--------- ------------------------
Name of Series F Investor Series F Shares ($[6.00] per share) Address
------------------------- --------------- ------------------- -------
Juniper Networks, Inc. 1,666,667 $10,000,002
Blue Vector 1,041,667 6,250,002
Azure Capital Partners 1,041,667 6,250,002
TOTAL: 3,750,001 $22,500,006
