1
EXHIBIT 10.15
INVESTMENT AGREEMENT
This Investment Agreement (the "AGREEMENT") is executed as of February ___,
2000 by and between The Concours Group, Inc., a Delaware corporation (the
"COMPANY"), Xxxxxx Equity Investors IV, L.P. a Delaware limited partnership
("XXXXXX"), and Xxxxxx CGI Partners LLC, a Delaware limited liability company
(each, an "INVESTOR" and collectively, the "INVESTORS").
RECITALS:
A. The Investors desire to invest in the Company by purchasing shares of
the Company's capital stock; and
B. The Company desires to sell such shares of capital stock to the
Investors.
NOW, THEREFORE, the Company and the Investors hereby agree as follows:
1. PURCHASE AND SALE OF STOCK.
1.1 PURCHASE AND SALE; PURCHASE PRICE. The Investors hereby agree
to purchase from the Company, and the Company hereby agrees to sell to the
Investors at the Closings (as defined below), on the terms and conditions set
forth in this Agreement, the number of shares of the Company's Series B
Convertible Preferred Stock, par value $0.01 per share (the "SERIES B STOCK"),
for an aggregate purchase price of $15,000,000, by wire transfer in accordance
with written instructions provided by the Company.
1.2 CLOSING.
(a) Initial Closing. The initial closing (the "INITIAL
CLOSING") of the sale of the Series B Stock will take place at the offices of
Jenkens & Xxxxxxxxx, a Professional Corporation, 0000 Xxxxxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, at 10:00 a.m., on the date that is one business day
subsequent to the consummation of the transactions contemplated by that certain
Exchange Agreement, by and among the Company and the shareholders of Cepro AB
(the "CEPRO AGREEMENT"), or such other time and place as agreed to by the
parties hereto (the "INITIAL CLOSING DATE"). At the Initial Closing, the Company
will deliver to the Investors certificates representing an aggregate of 206,238
shares of Series B Stock being acquired by the Investors on the Initial Closing
Date upon payment of the aggregate purchase price of $2,000,000 by Investors to
the Company.
(b) Additional Closing. On or prior to March 13, 2000, the
Investors agree to purchase and the Company agrees to issue, an aggregate of
1,340,546 shares of Series B Stock. The closing ("ADDITIONAL CLOSING") of the
sale of these shares of Series B Stock will take place at the offices of Jenkens
& Xxxxxxxxx, a Professional Corporation, 0000 Xxxxxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxx 00000, at 10:00 a.m., on or before March 13, 2000, or such other time and
place
2
as agreed to by the parties hereto (the "ADDITIONAL CLOSING DATE"). At the
Additional Closing, the Company will deliver to the Investors certificates
representing the 1,331,879 shares of Series B Stock being acquired by the
Investors on the Additional Closing Date upon payment of the aggregate purchase
price of $13,000,000 by the Investors to the Company. There shall be no other
conditions precedent to either the Company's obligation to issue, or the
Investors' obligation to purchase, such shares other than the occurrence of the
Initial Closing. The Initial Closing and the Additional Closing are sometimes
referred to as the "CLOSINGS" and each as a "CLOSING."
1.3 DELIVERY. At each Closing, the Company shall deliver to each of
the Investors a certificate representing the number of shares of the Series B
Stock set forth opposite each Investor's name on Schedule 1.1 against payment of
the purchase price therefor, as specified in Section 1.1 and Section 1.2. The
shares of Series B Stock purchased by the Investors may be referred to herein
collectively as the "PURCHASED SHARES." The Purchased Shares are convertible
into shares of the Company's common stock, $0.01 par value per share (the
"COMMON STOCK"), pursuant to the terms of the Certificate of Designation (as
defined herein). Such shares of Common Stock into which the Purchased Shares are
convertible may be referred to herein collectively as the "CONVERSION SHARES."
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company represents, warrants and covenants to the Investors that the following
are true and correct as of the Initial Closing Date:
2.1 ORGANIZATION AND QUALIFICATION; CORPORATE POWER. The Company is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has the corporate authority to own, lease and
operate its properties and assets and to carry on its business as it is now
being conducted, and is duly qualified as a foreign corporation to do business
and is in good standing in every jurisdiction in which the failure so to qualify
would have a material adverse effect on the business or properties of the
Company, taken as a whole. The Company has all required corporate power and
authority to execute and deliver this Agreement and the other agreements
contemplated herein, to issue and sell the Series B Stock hereunder, to issue
shares of Common Stock upon conversion of the Series B Stock, and to carry out
the transactions contemplated by this Agreement and the other agreements
contemplated herein.
2.2 ARTICLES AND BYLAWS. The Company has furnished the Investors
with copies of its Certificate of Incorporation and Bylaws, and such copies are
true and complete and contain all amendments to date.
2.3 SUBSIDIARIES. Except as set forth on Schedule 2.3, the Company
has no subsidiaries and does not otherwise own or control, directly or
indirectly, any other corporation, association or business entity.
2.4 AUTHORIZATION. All corporate action on the part of the Company,
its officers, directors, and stockholders necessary for the authorization,
execution and delivery of
2
3
this Agreement and the other agreements contemplated herein by the Company and
the authorization, issuance and delivery of the Purchased Shares (including the
Conversion Shares) has been taken, and this Agreement, and all agreements
executed by the Company pursuant to this Agreement, constitute valid and legally
binding obligations of the Company, enforceable in accordance with their terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency or
other laws relating to or affecting creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding or action in law or equity).
2.5 CAPITALIZATION AND VALID ISSUANCE OF STOCK.
(a) The authorized capital of the Company consists of
50,000,000 shares of Common Stock, of which 5,907,104 shares will be issued and
outstanding immediately prior to the Initial Closing, and 5,000,000 shares of
preferred stock, par value $0.01 per share (the "PREFERRED STOCK") of which
2,280,100 shares have been designated as Series A Convertible Preferred Stock
(the "SERIES A STOCK"), 1,810,000 of which will be issued and outstanding
immediately prior to the Initial Closing, and of which 1,936,000 shares have
been designated Series B Stock, of which no shares will be issued and
outstanding immediately prior to the Initial Closing. Schedule 2.5 sets forth
(i) the names of the persons owning the issued and outstanding shares of Common
Stock and Series A Stock as of the Initial Closing Date and the number of shares
owned by each such person, and (ii) a list of all outstanding options and
warrants to purchase shares of the Company's capital stock or securities
convertible or exercisable into shares of the Company's capital stock as of the
Initial Closing Date.
(b) The Company has filed, and the Secretary of State of
Delaware has accepted, the Amended and Restated Certificate of Designation of
the Powers, Rights and Preferences (the "CERTIFICATE OF DESIGNATION") in the
form attached hereto as Exhibit A, which Certificate of Designation designates
1,936,000 shares of the Preferred Stock as Series B Stock.
(c) Except as set forth in Schedule 2.5, no options, warrants,
rights (including conversion or preemptive rights) or agreements for the
purchase or acquisition from the Company of any shares of its capital stock or
securities convertible or exchangeable into shares of capital stock are
outstanding.
(d) The Purchased Shares when issued, sold and delivered in
accordance with the terms of this Agreement for the consideration expressed
herein, will be duly and validly authorized and issued, fully paid and
nonassessable and free of all encumbrances and restrictions, except restrictions
on transfer imposed by applicable securities laws, the Articles of Incorporation
and as may be agreed upon by the Investors in writing. The Company has
authorized and reserved for issuance upon conversion of the Series B Preferred
not less than 1,936,000 shares of its Common Stock, and the Conversion Shares
will be, when and if issued pursuant to the terms of the Certificate of
Designation, validly authorized and issued, fully paid and nonassessable and
free of all encumbrances and restrictions, except restrictions on transfer
imposed by applicable securities laws, the Certificate of Incorporation and as
may be agreed upon by the Investors in writing. The shares of Common Stock and
Series A Stock issued and
3
4
outstanding on the Initial Closing Date are all duly and validly authorized and
issued, fully paid and nonassessable, and were not issued in violation of any
preemptive rights of any person.
2.6 CONFLICTING LAWS, AGREEMENTS AND CHARTER PROVISIONS. Neither
the execution nor delivery of this Agreement or the other agreements
contemplated herein, nor the consummation of the transactions contemplated
hereby and thereby will (a) conflict with, or result in a breach of the
provisions of any agreement or instrument (including its charter and bylaws) to
or by which the Company is bound; (b) violate any order, judgment, statute, law
(including securities and Blue Sky laws), rule or regulation to or by which the
Company is, or such transactions are, subject, except where such violation would
not have a material adverse effect on the business or properties of the Company,
taken as a whole; or (c) result in the creation of any lien or encumbrance upon
any of the properties or assets of the Company.
2.7 LEGAL PROCEEDINGS.
(a) Litigation. No action, suit, proceeding or investigation is
pending or, to the Company's knowledge, threatened against the Company that
questions the validity of this Agreement, the other agreements contemplated
herein, or the right of the Company to enter into, or to consummate, the
transactions contemplated hereby and thereby, or which could result, either
individually or in the aggregate, in any material adverse change in the assets,
condition, business or operating results of the Company, taken as a whole, or
any change in the current equity ownership of the Company, nor to the Company's
knowledge, is there any basis for the foregoing. The Company is not a party or
subject to the provisions of any order, writ, injunction, judgment or decree of
any court or government agency or instrumentality.
(b) Compliance With Law and Other Instruments. The Company is
not in violation of any provision of its Certificate of Incorporation or bylaws
or, to its knowledge, of any law, ordinance, requirement, regulation, judgment,
injunction, award, decree or order applicable to its business, the violation of
which would materially and adversely affect its financial condition, prospects,
results of operations, assets or business, taken as a whole. There is not, under
any agreement or instrument to which the Company is a party, any existing
default or event which with notice or lapse of time or both would constitute a
default or create a lien, charge or encumbrance on any assets of the Company,
the effect of either of which would result in a material adverse effect on the
business or properties of the Company, taken as a whole. The Company is not
subject to, or has reason to believe it may become subject to, any material
liability or material corrective or remedial obligation arising under any
federal, state local or foreign law, rule or regulation (including the common
law) relating to or regulating health, safety, pollution or the protection of
the environment.
2.8 REGISTRATION RIGHTS; PREEMPTIVE RIGHTS. Except for that certain
Amended and Restated Registration Rights Agreement (the "REGISTRATION RIGHTS
AGREEMENT") in the form attached hereto as Exhibit B and to be entered into as
of the Initial Closing Date between the Company, the Investors and the other
parties signatory thereto, the Company is not under any obligation to register
under the Securities Act of 1933, as amended (the "ACT"), the offer and sale of
any of its outstanding securities or its securities that may hereafter be issued
by
4
5
the Company. Except as set forth in the Certificate of Designation, there are no
preemptive rights affecting the issuance or sale of the Company's capital stock.
2.9 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state, local or provincial governmental authority on
the part of the Company is required in connection with the consummation of the
transactions contemplated by this Agreement, other than as specifically required
by this Agreement, the filing of a registration statement pursuant to the
Registration Rights Agreement, the filing of a Form D with the Securities and
Exchange Commission and filings required under applicable state securities or
"blue sky" laws, except where the failure to obtain or make such approval,
consent, exemption, authorization, other action, notice or filing would not have
a material adverse effect on the business or properties of the Company, taken as
a whole.
2.10 EMPLOYEES. The Company is not aware that any executive or key
employee of the Company or any material group of employees of the Company has
any plans to terminate employment with the Company. The Company has complied in
all material respects with all laws relating to the employment of labor
(including, without limitation, provisions thereof relating to wages, hours,
equal opportunity, collective bargaining and the payment of social security and
other taxes), and the Company is not aware that it has any material labor
relations problems (including, without limitation, any union organization
activities, threatened or actual strikes or work stoppages or material
grievances). Neither the Company nor, to the best of the Company's knowledge,
any of its employees, is subject to any noncompete, nondisclosure,
confidentiality, employment, consulting or similar agreements relating to,
affecting or in conflict with the present business activities of the Company,
except for agreements between the Company and its present and former employees.
2.11 FINANCIAL STATEMENTS. Schedule 2.11 contains true, correct and
complete copies of the Financial Statements (as defined herein). Except as
described in Schedule 2.11, the Financial Statements are in accordance with the
books and records of the Company, have been prepared consistent with past
practices, have been prepared in accordance with generally accepted accounting
principals ("GAAP") (except that the unaudited Financial Statements do not
contain notes required by GAAP) and present fairly in all material respects the
financial position of the Company on the dates of such statements and the
results of its operations for the periods covered (subject, in the case of the
unaudited Financial Statements, to normal year-end adjustments, none of which,
either individually or in the aggregate, will be material). The Company
maintains its books, records and accounts in accordance with good business
practice and in sufficient detail to reflect fairly and in all material respects
the transactions and dispositions of its assets, liabilities and securities. For
purposes of this Agreement, "FINANCIAL STATEMENTS" shall mean (a) the
consolidated audited balance sheets, and statements of retained earnings,
operations and cash flow of the Company as of and for the years ended December
31, 1998 and 1997, and the notes thereto and (b) the consolidated unaudited
balance sheet and statement of operations of the Company as of and for the
twelve (12) month period ended December 31, 1999.
5
6
2.12 ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth on
Schedule 2.12, the Company does not have any material obligation or liability
arising out of transactions entered into at or prior to the Initial Closing
other than (a) liabilities set forth on the Financial Statements (including any
notes thereto); and (b) liabilities and obligations which have arisen after the
date of the Financial Statements in the ordinary course of business.
2.13 NO MATERIAL ADVERSE CHANGE. Since the date of the Financial
Statements, there has been no material adverse change in the financial
condition, operating results, assets, operations, business prospects, employee
relations or customer or supplier relations of the Company, taken as a whole.
2.14 ABSENCE OF CERTAIN DEVELOPMENTS.
(a) Except as expressly contemplated by this Agreement or as
set forth on Schedule 2.14, since the date of the Financial Statements, the
Company has not:
(i) issued any notes, bonds or other debt securities or any
capital stock or other equity securities or any securities convertible,
exchangeable or exercisable into any capital stock or other equity securities;
(ii) borrowed any material amount or incurred or become
subject to any material liabilities, except liabilities incurred in the ordinary
course of business and liabilities under contracts entered into in the ordinary
course of business;
(iii) declared or made any payment or distribution of cash
or other property to its stockholders with respect to its capital stock or other
equity securities or purchased or redeemed any shares of its capital stock or
other equity securities (including, without limitation, any warrants, options or
other rights to acquire its capital stock or other equity securities);
(iv) sold, assigned or transferred any of its material
tangible assets, except in the ordinary course of business, or canceled any
material debts or claims;
(v) made capital expenditures or commitments therefor that
aggregate in excess of $500,000; or
(vi) suffered any damage, destruction or casualty loss
exceeding in the aggregate $250,000, whether or not covered by insurance.
(b) The Company has not at any time made any payments for
political contributions or made any bribes, kickback payments or other illegal
payments.
2.15 EMPLOYEE BENEFIT PLANS. Schedule 2.15 attached hereto
identifies the employee benefit plans within Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended, that the Company maintains
and such plans are in compliance with all applicable federal, state and local
laws in all material respects.
6
7
2.16 INSURANCE. The Company is not in default with respect to its
obligations under any insurance policy maintained by it, and the Company has not
been denied insurance coverage. The insurance coverage of the Company is
customary for corporations of similar size engaged in similar lines of business.
Except as set forth on Schedule 2.16, the Company does not have any
self-insurance or co-insurance programs, and the reserves set forth on the
Financial Statements are adequate to cover all anticipated liabilities with
respect to any such self-insurance or co-insurance programs.
2.17 PATENTS, TRADEMARKS, SERVICE MARKS AND COPYRIGHTS.
(a) Ownership. Except as set forth on Schedule 2.17, the
Company owns all patents, trademarks, service marks and copyrights, if any,
necessary to conduct its business, or possesses adequate licenses or other
rights, if any, therefor, without conflict with the rights of others, except for
conflicts which could not reasonably be expected to result in a material adverse
effect on the business or properties of the Company, taken as a whole. Set forth
in Schedule 2.17 is a true and correct description of all proprietary rights
that are registered with a governmental entity or for which applications are
pending, together with the Company's registered domain name.
(b) Conflicting Rights of Third Parties. The Company has the
right to use its proprietary rights without infringing or violating the rights
of any third parties, except for infringements or violations which could not
reasonably be expected to result in a material adverse effect on the business or
properties of the Company, taken as a whole. Use of such proprietary rights does
not require the consent of any other person which has not been obtained and
proprietary rights held by the Company and listed on Schedule 2.17 are freely
transferable. No claim has been asserted by any person to the ownership of or
right to use any proprietary right or challenging or questioning the validity or
effectiveness of any license or agreement constituting a part of any proprietary
right.
(c) Claims of Other Persons. The Company does not have any
knowledge of any claim that, or inquiry as to whether, any product, activity or
operation of the Company infringes upon or involves, or has resulted in the
infringement of, any proprietary right of any other person, corporation or other
entity; and no proceedings have been instituted, are pending or, to the best
knowledge of the Company, are threatened that challenge the rights of the
Company with respect thereto.
2.18 TAX MATTERS.
(a) All required foreign, federal, state, local and other tax
returns, notices and reports (including, without limitation, income, property,
sales, use, franchise, capital stock, excise, added value, employees' income
withholding, social security and unemployment tax returns) of the Company have
been accurately prepared in all material respects and duly and timely filed, and
all foreign, federal, state, local and other taxes required to be paid with
respect to the periods covered by such returns have been paid. Except as set
forth on Schedule 2.18, the
7
8
Company is not and has not been delinquent in the payment of any tax, assessment
or governmental charge.
(b) Except as set forth in Schedule 2.18, the Company has not
had any tax deficiency proposed or assessed against it and has not executed any
waiver of any statute of limitations on the assessment or collection of any tax
or governmental charge. Except as set forth in Schedule 2.18, and except for
sales tax audits, none of the Company's franchise tax returns has ever been
audited by governmental authorities. No tax audit, action, suit, proceeding,
investigation or claim is now pending nor, to the best knowledge of the Company,
threatened against the Company, and no issue or question has been raised (and is
currently pending) by any taxing authority in connection with any of the
Company's tax returns or reports.
(c) The reserves for taxes, assessments and governmental
charges reflected on the balance sheet of the Company (the "BALANCE SHEET") as
of December 31, 1999 (the "BALANCE SHEET DATE"), which Balance Sheet is included
in the Financial Statements are and will be sufficient for the payment of all
unpaid taxes and governmental charges payable by the Company with respect to the
period ended on the Balance Sheet Date. Since the Balance Sheet Date, the
Company have made adequate provisions on its books of account for all taxes,
assessments and governmental charges with respect to its business, properties
and operations for such period. The Company has withheld or collected from each
payment made to each of its employees, the amount of all taxes (including, but
not limited to, federal income taxes, Federal Insurance Contribution Act taxes
and Federal Unemployment Tax Act taxes) required to be withheld or collected
therefrom, and have paid the same to the proper tax receiving officers or
authorized depositories.
2.19 TITLE TO ASSETS; CONDITION OF ASSETS.
(a) Except as disclosed on Schedule 2.19, the Company has good
and indefeasible title to its assets, including, without limitation, those
reflected on the Balance Sheet (other than those since disposed of in the
ordinary course of business), free and clear of all security interests, liens,
charges and other encumbrances, except for (i) liens for taxes not yet due and
payable or being contested in good faith in appropriate proceedings, and (ii)
encumbrances that are incidental to the conduct of its business or ownership of
property, not incurred in connection with the borrowing of money or the
obtaining of credit, and which do not in the aggregate materially detract from
the value of the assets affected or materially impair their use by the Company.
With respect to the assets of the Company that are leased, the Company is in
compliance with all material provisions of such leases. All facilities,
machinery, equipment, fixtures, vehicles and other properties owned, leased or
used by the Company are in good operating condition and repair, normal wear and
tear excepted, are reasonably fit and usable for the purposes for which they are
being used, are adequate and sufficient for the Company's business and, to the
best knowledge of the Company, conform in all material respects with all
applicable ordinances, regulations and laws.
8
9
(b) The Company enjoys peaceful and undisturbed possession
under all real property leases under which the Company is operating, and all
such leases are valid and subsisting and none of them is in default in any
material respect.
(c) The Company does not own any real property.
2.20 BROKERAGE. Except as provided in Schedule 2.20, there are no
claims for brokerage commissions, finder's fees or similar compensation in
connection with the transactions contemplated by this Agreement based on any
arrangement or agreement made by the Company. The Company shall pay, and hold
each Investor harmless against, any liability, loss or expense (including,
without limitation, reasonable attorneys' fees and out-of-pocket expenses)
arising in connection with any such claim.
2.21 YEAR 2000 COMPLIANCE. Except as set forth on Schedule 2.21,
all of the computer software, computer firmware, computer hardware (whether
general or special purpose), and other similar or related items of automated,
computerized, and/or software system(s) that are used or relied on by the
Company in the conduct of its business will not malfunction, will not cease to
function, will not generate incorrect data, and has not, and will not produce
incorrect results when processing, providing, and/or receiving (a) date-related
data into and between the Twentieth and Twenty-First Centuries and (b)
date-related data in connection with any valid date in the Twentieth and
Twenty-First Centuries, except for any malfunctions or generations of incorrect
data or results that would not individually or in the aggregate have a material
adverse effect on the assets, business, financial condition or results of
operations of the Company, taken as a whole. The Company has not been engaged in
any material year 2000 correction consulting work for customers pertaining to
its work product and has received no material claim or notice from any customer
regarding the failure of the Company to install computer software that is year
2000 compliant.
2.22 FOREIGN INVESTMENT IN REAL PROPERTY TAX ACT. The Company is
not a "foreign person" within the meaning of Section 1445 of the Internal
Revenue Code, and the Company shall deliver to the Investors at the Initial
Closing an affidavit to this effect.
2.23 DISCLOSURE. This Agreement and the exhibits and schedules
hereto, when taken as a whole with the representations and warranties set forth
herein, do not contain any untrue statement of material fact or omit any
material fact necessary in order to make the statements herein and therein not
misleading.
The Investors acknowledge and agree that the Company makes no
representations and warranties with respect to the transactions contemplated by
this Agreement and the other agreements contemplated herein, except for those
specifically set forth in this Section 2. The Investors acknowledge and agree
that it shall not be a breach of any representation or warranty, and that the
Investors shall have waived any such breach, if, as of the Initial Closing, the
Investors had specific knowledge of any fact or matter that would constitute a
breach of any representation or warranty.
9
10
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS AND RESTRICTIONS ON
TRANSFER OF THE PURCHASED SHARES AND THE CONVERSION SHARES. Each Investor
represents, warrants and covenants to the Company that the following statements
are true and correct as of the Initial Closing Date.
3.1 ORGANIZATION AND QUALIFICATION. The Investor is a limited
partnership or limited liability company, duly organized, validly existing and
in good standing under the laws of the State of Delaware. The Investor has the
requisite power and authority to carry on its business as it is now being
conducted.
3.2 AUTHORIZATION. The execution, delivery and performance of this
Agreement and the other agreements contemplated herein have been duly authorized
by all necessary action on the part of the Investor. The Investor has the full
right, power and authority to enter into this Agreement and the other agreements
contemplated herein, and this Agreement and the other agreements contemplated
herein constitute the valid and legally binding obligations of the Investor,
enforceable in accordance with their terms, except as may be limited by
bankruptcy, insolvency or other laws relating to or affecting creditors' rights
generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding or action in law or equity).
3.3 INVESTMENT REPRESENTATIONS.
(a) The Investor is an "ACCREDITED INVESTOR" within the meaning
of Regulation D under the Act and is acquiring the Purchased Shares for its own
account solely for investment, and not with a view to the distribution or resale
thereof. There are no contracts, agreements or understandings with any persons
or entities to sell, transfer or grant participation rights in the Purchased
Shares.
(b) The Investor has received and examined all the information
and materials it considers necessary or appropriate to decide whether to
purchase the Purchased Shares and has had an opportunity to ask questions of,
and receive answers from, the Company respecting the provisions of the offering
of the Purchased Shares.
(c) The Investor (i) has substantial knowledge and experience
in financial and business matters, including, without limitation, evaluating and
investing in private companies; (ii) is capable of evaluating the merits of the
prospective investment; (iii) is a sophisticated investor; and (iv) has the
ability to bear the economic risks, including the risk of a total loss, of its
investment.
(d) The Investor understands that it may not sell or otherwise
dispose of the Purchased Shares or the Conversion Shares except in accordance
with the provisions of Section 3.4 and understands that neither the Purchased
Shares nor the Conversion Shares have been registered under the Act or any
applicable state securities laws and will be issued in reliance on an exemption
from the registration requirements thereof, and that the certificate(s)
representing the Purchased Shares and the Conversion Shares may be the subject
of a stop
10
11
transfer notice with the Company's stock transfer agent and such certificate(s)
will contain the following legend, and any additions thereto required by
applicable state securities laws:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAW, AND MAY NOT BE OFFERED FOR SALE, SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH
REGISTRATION IS NOT REQUIRED."
The Investor acknowledges that the Company is relying on its representations and
warranties contained herein for purposes of determining compliance with the
applicable federal and state securities laws.
3.4 RESTRICTIONS ON TRANSFER. Except for sales or other
dispositions pursuant to an effective registration statement under the Act (or
its then equivalent), the Investor agrees not to sell or otherwise dispose of
any of the Purchased Shares or Conversion Shares unless prior to selling or
otherwise disposing of any such shares: (a) the Investor delivers to the Company
written notice of the proposed sale or other disposition, together with an
opinion of counsel reasonably acceptable to the Company to the effect that the
proposed sale or other disposition may be effected without registration under
the Act (or its then equivalent) and qualification under any applicable state
securities laws then in effect, and, if requested by the Company, the written
consent of the transferee of such shares to be bound by the terms of this
Agreement; or (b) such sale or other disposition is the subject of a no-action
letter issued by the Staff of the Securities and Exchange Commission permitting
such sale or disposition. The Investor acknowledges that there is no currently
available exemption under Rule 144 promulgated under the Act for sales of
capital stock of the Company.
4. CONDITIONS TO INITIAL CLOSING.
4.1 CONDITIONS TO INITIAL CLOSING BY INVESTORS. The obligations of
the Investors to purchase and pay for the Purchased Shares being purchased at
the Initial Closing are subject to the satisfaction, on or before the Initial
Closing Date, of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties contained in Section 2 shall be materially true and correct on and as
of the Initial Closing Date.
(b) Compliance Certificates. The Company shall have delivered
to the Investors a certificate, in substance and form acceptable to the
Investors, executed by (i) the Chief Executive Officer of the Company and dated
the Initial Closing Date, and certifying to the fulfillment of the conditions
specified in Section 4.1(a) of this Agreement and (ii) executed by the Chief
Financial Officer of the Company and dated the Initial Closing Date, and
certifying that the audited financial statements, including the notes thereto,
for the year ended December 31, 1999 will, upon receipt, not materially and
adversely vary from the draft financial statements delivered to the Investors on
February 28, 2000.
11
12
(c) Proceedings. All corporate and other proceedings taken or
to be taken in connection with the transactions contemplated hereby at the
Initial Closing, and all documents or instruments incident thereto, shall be
fully performed or executed and shall be satisfactory in substance and form to
the Investors and the Investors shall have received all such counterpart
originals, certified or other copies of such minutes, documents or instruments
as the Investors may reasonably request.
(d) Securities Law Compliance. The Company shall have taken all
actions under all applicable federal and state securities laws necessary to
consummate the issuance of the Series B Stock pursuant to this Agreement in
compliance with such laws.
(e) Execution and Delivery of Ancillary Documents. The
following ancillary documents or items shall have been executed and/or
delivered:
(i) The Registration Rights Agreement;
(ii) an opinion of Jenkens & Xxxxxxxxx, a Professional
Corporation, counsel to the Company substantially in the form of Exhibit C
attached hereto;
(iii) the Certificate of Incorporation of the Company and
all amendments thereto, certified by the Secretary of State of Delaware;
(iv) (A) copies of the resolutions of the Company's Board
of Directors authorizing and approving this Agreement and all of the
transactions and agreements contemplated hereby and thereby; (B) the bylaws of
the Company; and (C) the names of the officer or officers of the Company
authorized to execute this Agreement and any and all documents, agreements and
instruments contemplated herein, all certified by the Secretary of the Company
to be true, correct, complete and in full force and effect and unmodified as of
the Initial Closing Date;
(v) a certificate of existence and good standing for the
Company from the Secretary of State of Delaware; and
(vi) a certificate from the Secretary of State of Texas,
showing that the Company is qualified as a foreign corporation, dated as of a
date within ten (10) days of the Initial Closing Date.
(f) Certificate of Designation. The Certificate of Designation
shall have been filed with, and have been accepted by, the Secretary of State of
the State of Delaware.
4.2 CONDITIONS TO INITIAL CLOSING BY COMPANY. The obligation of the
Company to sell the Purchased Shares being sold at the Initial Closing to the
Investors is subject to the satisfaction, on or before the Initial Closing Date,
of each of the following conditions:
12
13
(a) Representations and Warranties. The representations and
warranties contained in Section 3 shall be true on and as of the date of Initial
Closing.
(b) Compliance Certificate. The Investors shall have delivered
to the Company a certificate in the form acceptable to the Company, executed by
an authorized officer of the General Partner of the Investors, dated as of the
Initial Closing Date, and certifying to the fulfillment of the conditions
specified in Section 4.2(a) of this Agreement.
5. COVENANTS OF THE COMPANY.
5.1 MAINTENANCE OF THE BUSINESS. Except as otherwise agreed to in
writing by the holders of a majority of the shares of Series B Stock, the
Company shall (a) maintain its corporate existence; (b) maintain all of its
assets in good condition in accordance with prudent business practices, ordinary
wear and tear excepted; (c) hold Board of Directors meetings at least quarterly,
either by telephone or in person; and (d) submit an annual operating plan to its
Board of Directors for its approval at least one month prior to the beginning of
each fiscal year.
5.2 NEGATIVE COVENANTS. Without limiting any other covenants and
provisions hereof or contained in any other agreement to which the Company and
the Investors are parties, the Company covenants and agrees that, for as long as
at least twenty-five percent (25%) of the shares of Series B Stock issued
pursuant to this Agreement remain outstanding, the Company (unless it has
received the written consent of two-thirds of the Board of Directors of the
Company, one of whom shall be a representative designated by the holders of the
Series A Stock or the Series B Stock prior to the time that a majority of the
Company's directors are Independent Directors (as defined herein)) shall comply
with and observe the following negative covenants and provisions and will not:
(a) sell or dispose of all or substantially all of the
Company's property or business for an amount less than $150,000,000;
(b) merge into or consolidate with any other corporation or
other entity (other than a wholly-owned subsidiary of the Company) or effect any
transaction or series of related transactions in which more than fifty percent
(50%) of the voting power of the Company is disposed of, unless the value
received by the stockholders of the Company exceeds $150,000,000;
(c) alter or amend the Company's charter or bylaws;
(d) increase or decrease the number of directors on the
Company's Board of Directors; or
(e) dissolve the Company.
13
14
For purposes of this Section 5.2, the term "Independent Directors"
shall mean directors of the Company who are not employees of the Company or who
are not paid consultants of or under retainer to the Company and who are not
affiliates of the Investors.
5.3 FINANCIAL STATEMENTS AND OTHER INFORMATION. The Company will
maintain a standard system of accounting records which will fairly present, in
all material respects, the Company's financial condition. In addition, for so
long as the Investors or their affiliates hold at least fifty percent (50%) of
the shares of Series B Stock issued pursuant to this Agreement (or the related
Conversion Shares) the Company will deliver to the Investors or any affiliate of
the Investors which owns at least ten percent (10%) of the Series B Stock issued
pursuant to this Agreement (or the related Conversion Shares), the following:
(a) as soon as practicable, but in any event within ninety (90)
days after the end of each fiscal year of the Company, audited financial
statements, in reasonable detail, prepared in accordance with GAAP;
(b) as soon as practicable, but in any event within forty-five
(45) days after the end of each of the first three quarters of each fiscal year
of the Company, unaudited financial statements of the Company;
(c) as soon as practicable, but in any event within thirty (30)
days after the end of each month, unaudited financial statements of the Company;
and
(d) such other information relating to the financial condition,
business, prospects or corporate affairs of the Company as the Investors may
from time to time reasonably request in writing.
5.4 BOARD OF DIRECTORS. For so long as at least a majority of the
shares of Series B Stock issued pursuant to this Agreement remain outstanding,
the holders of the Series B Stock shall be entitled to designate and elect one
member of the Company's Board of Directors from among the members of Xxxxxx'x
board of advisors (or a person mutually agreed upon by the Company and Xxxxxx
with similar credentials and standing), which designation shall be subject to
the reasonable approval of Company's Board of Directors. In addition, for so
long as the Investors in the aggregate hold at least twenty-five percent (25%)
of the shares of Series B Stock issued pursuant to this Agreement, Xxxxxx shall
have the right to have an observer present at all meetings of the Board of
Directors of the Company. The Company shall reimburse the director and the
observer for their reasonable out-of-pocket expenses incurred in attending
meetings of the Board of Directors of the Company.
5.5 INSPECTION. For as long as the Investors or any affiliate of
the Investors own at least fifty percent (50%) of the shares of Series B Stock
issued pursuant to this Agreement, the Company shall permit Xxxxxx, at Xxxxxx'x
expense, to visit and inspect the Company's properties during normal business
hours, to examine its books of account and records and to discuss the Company's
affairs, finances and accounts with its officers, all at such reasonable times
as may be requested by Xxxxxx; provided, however, that the Company shall not
14
15
be obligated pursuant to this Section 5.5 to provide access to any information
that it reasonably considers to be a trade secret or similar confidential
information.
5.6 USE OF INFORMATION. Any information provided pursuant to
Section 5.3 or Section 5.5 shall be used by the Investors solely in furtherance
of their interests as investors in the Company, and the Investors shall maintain
and shall take such steps as are necessary to cause their representatives and
agents to maintain the confidentiality of all non-public information of the
Company obtained under such sections.
5.7 ASSIGNMENT OF INFORMATION AND VISITATION RIGHTS. The rights
granted to the Investors under Sections 5.3 and 5.5 may not be assigned except
to an affiliate of the Investors and provided that (a) the Company shall be
entitled to notice of any such transfer within thirty (30) days of the date such
transaction is effected; (b) such assignee or transferee agrees to be bound by
the terms of this Agreement; and (c) such assignee or transferee is not, in the
Company's reasonable judgment, a competitor of the Company.
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS; WAIVER AND
AMENDMENT.
6.1 COMPANY AND THE INVESTORS. Except as otherwise herein provided,
all covenants of the Company and the Investors contained in this Agreement shall
survive the execution of this Agreement and the consummation of the transactions
contemplated hereby and remain in effect until the Company consummates an
underwritten public offering of its Common Stock pursuant to an effective
registration statement, with aggregate gross proceeds (prior to underwriter
commissions and expenses) of not less than $25,000,000. The representations and
warranties of the Company made in this Agreement or in any document executed in
connection herewith or in any certificate delivered pursuant to this Agreement,
shall survive the execution and delivery of this Agreement for a period of
fifteen (15) months.
6.2 WAIVER AND MODIFICATION. Any term or provision of this
Agreement may be waived at any time by the written consent of the party which is
entitled to the benefits thereof. Any waiver shall not operate as a waiver of
any other term or provision. This Agreement may only be modified by mutual
written agreement of the parties.
7. MISCELLANEOUS.
7.1 NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be sent by registered or
certified mail, return receipt requested, or facsimile, or by overnight courier,
delivered against receipt to the party to whom it is to be given at the address
of such party as set forth below, or to such other address as the party shall
have furnished in writing to all parties in accordance with the provisions of
this Section 7.1, and shall be deemed properly given: (a) in the case of
registered or certified mail, five (5) business days after deposit in the United
States mail; (b) in the case of facsimile, upon receipt of a confirmation
notice; and (c) in the case of an overnight courier, on such courier's
guaranteed delivery date, except for a notice changing a party's address, which
shall be deemed given only at
15
16
the time of receipt thereof by each party affected thereby, and in the case of
facsimile, on the day following the date of transmission:
If to the Company:
The Concours Group, Inc.
0 Xxxxxxxx Xxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxx 00000
Attn. Xx. Xxx Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Jenkens & Xxxxxxxxx,
a Professional Corporation
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn.: Xxxxxxx Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Investors:
Xxxxxx Equity Investors IV, L.P.
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx XX 00000
Attn.: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxx & Xxxxxxx, L.L.P.
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx XX 00000
Attn.: Xxxxxxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
7.2 BINDING EFFECT. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and the successors
and assigns of the Company and
16
17
the respective assigns (to the extent assignable herein), heirs and personal
representatives of the Investor.
7.3 NO THIRD PARTY BENEFICIARIES. This Agreement does not create
and shall not be construed as creating any rights enforceable by any person not
a party to this Agreement.
7.4 SEVERABILITY. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal or unenforceable, that
shall, in no way, affect the validity or enforceability of any other provision
of this Agreement and that provision shall be deemed modified to the minimum
extent necessary to render it valid, legal and enforceable while accomplishing
the intent of such provision as nearly as practicable.
7.5 CONSTRUCTION. The parties have participated jointly in the
negotiation and drafting of this Agreement and agree that no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement. The headings of this
Agreement are solely for convenience of reference and shall be given no effect
in the construction or interpretation of this Agreement. Pronouns shall be
deemed to include the singular, plural, masculine, feminine or neuter, as the
context requires. References to section numbers are to sections of this
Agreement unless otherwise indicated. All exhibits attached to this Agreement
are incorporated herein as if set forth in this Agreement in full.
7.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may be
executed and delivered by facsimile transmission.
7.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF TEXAS WITHOUT
GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
STATE OF TEXAS OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF TEXAS.
7.8 EXPENSES. Each party to this Agreement shall bear its own
expenses relating to the preparation, execution, delivery and performance of
this Agreement, the Registration Rights Agreement and the Certificate of
Designation and all transactions contemplated hereby; provided, however, upon
consummation of the transactions contemplated hereby, the Company shall pay
reasonable legal fees and out-of-pocket expenses of the Investors of up to
$60,000 in the aggregate.
7.9 ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding and agreement among the parties with respect to the subject matter
hereof and supersedes and replaces any prior understanding, agreement or
statement (written or oral).
[SIGNATURE PAGE FOLLOWS]
17
18
IN WITNESS WHEREOF, each of the parties hereto has executed, or has
caused this Agreement to be executed on its behalf by its duly authorized
officer, as of the day and year first above written.
THE CONCOURS GROUP, INC.
By: /s/ XX. XXX XXXXXXXXX
-----------------------------------
Xx. Xxx Xxxxxxxxx, its President
XXXXXX EQUITY INVESTORS IV, L.P.
By: TC Equity Partners IV, L.L.C.
Its General Partner
By: /s/ XXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Vice President
---------------------------------
XXXXXX CGI PARTNERS LLC
By: /s/ XXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Vice President
---------------------------------
19
SCHEDULE 1.1
Initial Closing Additional Closing
-------------------------- ---------------------------
Investor Purchase Price Shares Purchase Price Shares
------------------ -------------- ------- -------------- ---------
Xxxxxx Equity
Investors IV, L.P. $9.697538 206,238 $9.67538 1,305,111
Xxxxxx CGI
Partners LLC -- -- $9.67538 35,435
20
EXHIBIT A
21
EXHIBIT B
22
EXHIBIT C
