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EXHIBIT 10.26
CONTINGENT SECURITIES PURCHASE AGREEMENT
THIS CONTINGENT SECURITIES PURCHASE AGREEMENT (this "Agreement"),
entered into this 20th day of March, 2000, and effective as of April 1, 1999, is
entered into by and between ClientLogic Corporation, formerly known as
ClientLogic Holding Corporation, a Delaware corporation (the "Company"), and
Xxxx X. Xxxxxxx ("Purchaser").
In consideration of the premises, mutual covenants and agreements
hereinafter contained and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
PURCHASE AND SALE OF SECURITIES
1.1 Commitments to Purchase. The Company grants to Purchaser, subject
to the terms and conditions set forth herein and in reliance on the
representations and warranties of Purchaser contained herein, the right and
option (the "Option") to purchase from the Company at a purchase price of $1.50
per share ("Purchase Price") such number of shares of Class A common stock, par
value $0.01 per share ("Class A Common Stock" or the "Securities"), of the
Company as determined by dividing (i) the total amount (or any portion thereof
as determined by Purchaser) of Purchaser's annual bonus if and when earned by
Purchaser for the year ended December 31, 1999 ("1999 Annual Bonus") as
determined in accordance with Section 3(b) of that certain Employment Agreement,
by and between Purchaser and ClientLogic Operating Corporation, a Delaware
corporation and wholly-owned subsidiary of the Company ("Operating"), dated
effective as of April 1, 1999 (a copy of which is attached hereto as Exhibit A)
by (ii) the Purchase Price.
1.2 Expiration; Relationship to Annual Bonus. The Option shall expire
at 12:00 midnight Pacific Coast time on June 1, 2000. The parties agree that the
Option shall be exercisable by Purchaser only to the extent Purchaser receives a
payment under the 1999 Annual Bonus. In the event no amount is payable to
Purchaser under the 1999 Annual Bonus, the Option shall immediately expire.
1.3 Closing. The purchases and sales of the Securities will take place
at a closing (the "Closing") which shall occur on such date as is specified by
the Company to the Purchaser in writing. At the Closing, the Company shall
deliver to Purchaser, against payment of the aggregate Purchase Price therefor,
certificates for the shares of Class A Common Stock purchased by Purchaser. Each
Security shall be registered in the name of Purchaser.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
To induce the Purchaser to purchase the Securities as herein provided,
the Company makes the following representations and warranties to the Purchaser,
each and all of which shall be true and correct as of the date of execution and
delivery of this Agreement and shall survive until the Closing.
2.1 Corporate Existence. The Company: (a) is duly organized and validly
existing under the laws of the jurisdiction of its organization; (b) has all
requisite corporate power, and has all material governmental licenses,
authorizations, consents and approvals necessary to own its assets and carry on
its business as now being or as proposed to be conducted and to consummate the
transactions contemplated by this Agreement; and (c) is qualified to do business
in all jurisdictions in which the nature of the business conducted by it makes
such qualification necessary and where failure so to qualify would have a
material adverse effect on the results of operations, business or financial
condition of the Company and its subsidiaries taken as a whole.
2.2 Authorization. The Company has all requisite corporate power and
authority to enter into this Agreement to issue the Securities and to perform
its obligations hereunder. The execution, delivery and performance of this
Agreement has been duly authorized by all necessary corporate action on the part
of the Company, and this Agreement has been duly executed and delivered by the
Company. This Agreement constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms subject,
as to enforceability, to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws of general applicability affecting the
rights of creditors and to general principles of equity.
2.3 No Conflict. The execution, delivery and performance by the Company
of this Agreement does not and will not (a) violate or contravene or be in
conflict with (i) any provision of the Certificate of Incorporation or By-Laws
of the Company, (ii) any provision of any law, rule or regulation applicable to
the Company, (iii) any order, judgment or decree of any court or other agency,
(b) violate, result in a breach of or constitute a default under any term of any
mortgage, indenture, contract or agreement to which the Company is a party or by
which the Company or any property of the Company is bound; or (c) result in the
creation of any tax, charge, claim, lien, security interest or other encumbrance
of any kind whatsoever on any of the properties or assets of the Company.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
3.1 Private Placement.
(a) Purchaser acknowledges and agrees with the Company on the date
of this Agreement and at the date of the Closing that:
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(i) the offering and sale of the Securities is intended
to be exempt from registration under the Securities Act of 1933, as
amended (the "Securities Act"), by virtue of the provisions of either
Section 4(2) of the Securities Act or Rule 506 of Regulation D
("Regulation D") promulgated under the Securities Act by the Securities
and Exchange Commission (the "SEC");
(ii) the offering itself will be reported by the Company
to the SEC to the extent required by Regulation D and to various state
securities or blue sky commissioners to the extent required by
applicable state law;
(iii) there is no existing public or other market for the
Securities and there can be no assurance that any Purchaser will be
able to sell or dispose of such Purchaser's Securities; and
(iv) the shares of Class A Common Stock acquired hereby
are subject to the terms of the Stockholders Agreement of the Company,
dated as of October 1, 1998 between the Company and certain of its
stockholders and, if requested by the Company, Purchaser will become a
party to the Stockholders Agreement and that the certificates
representing the Securities will bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR
PURSUANT TO THE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE. SUCH
SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE ASSIGNED, EXCEPT PURSUANT TO (i) A
REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS
EFFECTIVE UNDER SUCH ACT, (ii) RULE 144 UNDER SUCH ACT, OR (iii) ANY
OTHER EXEMPTION FROM REGISTRATION UNDER SUCH ACT. THIS SECURITY IS
SUBJECT TO RESTRICTIONS ON TRANSFER, VOTING AND OTHER TERMS AND
CONDITIONS SET FORTH IN THE STOCKHOLDERS AGREEMENT DATED AS OF
OCTOBER 1, 1998, A COPY OF WHICH MAY BE OBTAINED FROM CLIENTLOGIC
CORPORATION AT ITS PRINCIPAL EXECUTIVE OFFICES.
(b) Purchaser represents and warrants to the Company on the date
of this Agreement and at the date of the Closing that:
(i) the Securities to be acquired by it pursuant to this
Agreement are being acquired for his own account, not as a nominee or
agent for any other person and without a view to the distribution of
such Securities or any interest therein in violation of the Securities
Act; and
(ii) Purchaser is an "accredited investor" within the
meaning of Rule 501(a) under Regulation D, and has such knowledge and
experience in
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financial and business matters so as to be capable of evaluating the
merits and risks of its investment in the Securities, and Purchaser is
capable of bearing the economic risks of such investment and is able to
bear the complete loss of its investment in the Securities.
(c) Purchaser acknowledges that the Securities have not
been registered under the Securities Act and understands that the Securities
must be held indefinitely unless they are subsequently registered under the
Securities Act or such sale is permitted pursuant to an available exemption from
such registration requirement.
ARTICLE 4
EXERCISE OF OPTION
4.1 Procedures for Exercise.
In order to exercise the Option in whole or in part, Purchaser shall
complete a subscription form (which form shall be obtained from the Company) and
deliver to the Company at its offices such subscription form and the aggregate
Purchase Price of the shares of Class A Common Stock being acquired.
ARTICLE 5
MISCELLANEOUS
5.1 Notices. Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows (or at such other address as may be
substituted by notice given as herein provided):
If to the Company:
ClientLogic Corporation
2 American Center
0000 Xxxx Xxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
ClientLogic Corporation
2 American Center
0000 Xxxx Xxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
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If to Purchaser, at its address listed on the signature pages hereof or
such other address as Purchaser may provide by notice to the Company.
Any notice or communication hereunder shall be deemed to have been
given or made as of the date so delivered if personally delivered; when receipt
is acknowledged, if telecopied; and three business days after mailing if sent by
registered or certified mail (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee).
5.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
5.3 Successors and Assigns. This Agreement shall be binding upon the
Company, Purchaser, and their respective successors and assigns.
5.4 Duplicate Originals. All parties may sign any number of copies of
this Agreement. Each signed copy shall be an original, but all of them together
shall represent the same agreement.
5.5 Severability. In case any provision in this Agreement shall be held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and the
remaining provisions shall not in any way be affected or impaired thereby.
5.6 No Waivers; Amendments.
(a) No failure or delay on the part of the Company or
Purchaser in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy at law or in equity or otherwise.
(b) Any provision of this Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed by
the Company or the party against whom such amendment is operative.
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SIGNATURES TO AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the date first written above.
CLIENTLOGIC CORPORATION
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
/s/ XXXX X. XXXXXXX
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XXXX X. XXXXXXX
Address of Purchaser:
000 Xxxxxxxxxxxx Xxx
Xxxxxxxx, XX 00000
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EXHIBIT A
A-1