EXHIBIT 10.22
July 27, 1999
Xx. Xxxxxx Xxxxxxxx
Chief Executive Officer
Greenwich Technology Partners
00 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Dear Xxx:
This letter agreement confirms our understanding that Greenwich Technology
Partners (the "Company" or "you") has engaged Credit Suisse First Boston
Corporation and its affiliates, successors and assigns, as appropriate ("Credit
Suisse First Boston") to act as its exclusive placement agent in connection with
the private placement (the "Private Placement") by the Company or its affiliates
of Equity or Equity-Linked Securities (the "Securities").
1. Appointment and Acceptance
The Company hereby appoints Credit Suisse First Boston as the Company's
exclusive placement agent in connection with a private placement of the
Securities and Credit Suisse First Boston accepts such appointment.
Credit Suisse First Boston agrees that in its capacity hereunder it will use
reasonable efforts to arrange a private placement of the Securities. In no
event shall Credit Suisse First Boston be obligated to purchase the Securities
for its own account or for the accounts of its customers.
2. Fees and Expenses
As compensation to Credit Suisse First Boston for its services hereunder, the
Company agrees to pay Credit Suisse First Boston promptly upon each closing of a
sale of the Securities, a cash fee (the "Placement Fee") according to the
following table:
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Investor Placement Fee
(percentage of gross proceeds raised
from all sales of securities)
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Existing Investors (as listed in Exhibit 1) 0% for the first $4.0 million in the aggregate,
6% of proceeds in excess of $4.0 million
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Other Investors 6%
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The Placement Fee payable hereunder shall be subject to a $1,000,000 minimum
payable upon the first closing of a sale of securities.
Promptly upon request, the Company will reimburse Credit Suisse First Boston for
all of Credit Suisse First Boston's reasonable out-of-pocket expenses incurred
in connection with its activities hereunder, including, without limitation, the
fees and disbursements of its legal counsel, if any, and of any other advisor
retained by Credit Suisse First Boston in connection with this engagement (it
being understood that the retention of any advisor, other than legal counsel,
will be made with the prior approval of the Company).
Such Placement Fee will be payable in respect of each such sale whether such
sale has been arranged by Credit Suisse First Boston, by another agent or
directly by the Company.
3. Information
The Company will furnish Credit Suisse First Boston with all financial and other
information concerning the Company as Credit Suisse First Boston deems
appropriate in connection with the performance of the services contemplated by
this engagement and in that connection will provide Credit Suisse First Boston
with access to the Company's officers, directors, employees, accountants,
counsel and other representatives. The Company acknowledges and confirms that
Credit Suisse First Boston (i) will rely solely on such information in the
performance of the services contemplated by this engagement without assuming any
responsibility for independent investigation or verification thereof, (ii)
assumes no responsibility for the accuracy or completeness of such information
or any other information regarding the Company and (iii) will not make any
appraisal of any assets of the Company.
The Company will be solely responsible for the contents of the private placement
memorandum or other offering document used in connection with the placement of
the Securities contemplated hereby (as such private placement memorandum or
other document may be amended or supplemented and including any information
incorporated therein by reference, the "Private Placement Memorandum") and any
and all other written or oral communications provided by or on behalf of the
Company to any actual or prospective purchaser of the Securities. The Company
represents and warrants that the Private Placement Memorandum and such other
communications will not, at any time during the period of Credit Suisse First
Boston's engagement hereunder contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The Company authorizes Credit Suisse First
Boston to provide the Private Placement Memorandum to prospective purchasers of
the Securities. If at any time prior to the completion of the offer and sale of
the Securities or the closing date of any such sale an event occurs as a result
of which the Private Placement Memorandum (as then supplemented or amended)
would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, the Company will
promptly notify Credit Suisse First Boston of such event and Credit Suisse First
Boston will suspend solicitations of prospective purchasers of the Securities
until such time as the Company
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shall prepare (and the Company agrees that, if it shall have notified Credit
Suisse First Boston to suspend solicitations after the Company has accepted
orders from prospective purchasers, it will promptly prepare) a supplement or
amendment to the Private Placement Memorandum which corrects such statement(s)
or omission(s).
4. Exemption from Registration; Restrictions on Offer and Sale of Same or
Similar Securities
It is understood that the offer and sale of the Securities will be exempt from
the registration requirements of the Securities Act of 1933, as amended (the
"Act") pursuant to Section 4(2) thereof. The Company will not, directly or
indirectly, make any offer or sale of Securities or of securities of the same or
a similar class as the Securities if as a result the offer and sale of
Securities contemplated hereby would fail to be entitled to the exemption from
the registration requirements of the Act provided for in such Section 4(2). The
Company represents and warrants to Credit Suisse First Boston that it has not,
directly or indirectly, made any offer or sale of the Securities or securities
of the same or similar class as the Securities during the six month period
ending on the date of this letter other than the Series D Preferred Stock
Financing which closed February 1, 1999, and has no intention of making an offer
or sale of the Securities or securities of the same or similar class as the
Securities for a period of six months after completion of the private placement
contemplated hereby. As used herein, the terms "offer" and "sale" have the
meanings specified in Section 2(3) of the Act.
5. Additional Restrictions on the Company
In connection with all offers and sales of the Securities:
The Company will not offer or sell the Securities by means of any form of
general solicitation or general advertising.
The Company will not offer or sell the Securities to any person who is not an
"accredited investor" as defined in Rule 501 under the Act.
The Company will exercise reasonable care to ensure that the purchasers of the
Securities are not underwriters within the meaning of Section 2(11) of the Act
and, without limiting the foregoing, that such purchases will comply with Rule
502(d) under the Act.
The Company shall be deemed to make to Credit Suisse First Boston all
representations and warranties which it makes to purchasers of Securities in any
purchase agreement or other document.
6. Compliance with State Securities Laws
The Company will take such action as is necessary to qualify the Securities for
offer and sale under the securities laws of such states and other jurisdictions
of the United States as Credit Suisse First Boston may specify.
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7. Indemnification
Since Credit Suisse First Boston will be acting on behalf of the Company in
connection with its engagement hereunder, the Company and Credit Suisse First
Boston have entered into a separate letter agreement (the "Indemnification
Agreement") dated the date hereof providing for the indemnification by the
Company of Credit Suisse First Boston and certain related persons and entities.
8. Additional Services
If at any time within twelve months of the date hereof, the Company is
considering retaining an investment bank or other similar agent in connection
with any related or unrelated investment banking services for the Company, the
Company shall offer to retain Credit Suisse First Boston as its exclusive bank
or agent for such services. As compensation for such services, Credit Suisse
First Boston will be paid customary fees to be mutually agreed upon at the
appropriate time. The terms of any such additional engagement will be set forth
in a separate letter agreement containing terms and conditions to be mutually
agreed upon, including without limitation, appropriate indemnification
provisions.
In addition, if at any time within twelve months of the date hereof, the Company
determines to undertake any merger, acquisition, divestiture or other similar
transaction which results in a sale or a series of transactions of all or
substantial amount of assets or the capital stock of the Company as well as any
recapitalization, restructuring or liquidation of the Company by owners of the
Company holding at least 50% of the voting securities of the Company, a third
party or any combination thereof, or any other form of disposition which results
in the effective sale of the principal business and operations of the Company by
owners of the Company holding at least 50% of the voting securities of the
Company) (an "M&A Transaction"), the Company agrees to retain Credit Suisse
First Boston as its exclusive financial advisor in connection with such M&A
Transaction on customary terms and conditions, including without limitation,
appropriate indemnification provisions. Among other things, such terms and
conditions will provide that in the event an M&A Transaction is consummated, the
Company will pay Credit Suisse First Boston an "M&A Transaction Fee" equal to
the greater of (x) 2.0% of the Aggregate Value (as defined below) of the M&A
Transaction or (y) $2,000,000. Acquisitions anticipated to be valued below $100
million shall be subject to a mutually agreeable M&A Transaction fee.
The "Aggregate Value" of the M&A Transaction shall equal the value of the
consideration received per share of the Company's common stock (the "Per Share
Consideration") multiplied by the Company's Fully Diluted shares outstanding (or
in the case of a sale of assets, the consideration received for such assets),
plus the value of any debt, capital lease, and preferred stock obligations of
the Company assumed, retired, or defeased in connection with the M&A
Transaction. "Fully Diluted" shares outstanding shall mean the total number of
common shares outstanding plus the total number of common shares that would be
issued upon conversion of any securities convertible into common shares,
including, but not limited to, all outstanding stock options (whether or not
vested) or preferred stock of the Company. In the case of an M&A Transaction in
which the Per Share Consideration consists of another company's common stock,
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the Per Share Consideration shall be computed in a manner consistent with the
calculation of such price in the definitive acquisition agreement.
The value of any consideration to be paid contingent upon future events shall be
estimated for the purposes of calculating the M&A Transaction Fee at an expected
value mutually agreeable to you and to us at the time of closing; any amounts
held in escrow shall be deemed paid at closing. No fees or expenses payable to
any other financial advisor either by the Company or by any other entity shall
reduce or otherwise affect the fees payable hereunder to CSFB.
Without limiting the generality of the foregoing, it is understood that any
transaction resulting in the sale of more than 50% of the Company's voting stock
will be deemed a consummated M&A Transaction for purposes of determining when
the full M&A Transaction Fee is payable. Nevertheless, our advisory efforts
pursuant to this letter will continue after control is obtained to assist you
with a second step merger or similar transaction.
The terms of any such engagement will be set forth in a separate letter
agreement containing terms and conditions to be mutually agreed upon, including
without limitation, appropriate indemnification provisions.
The Company further understands that if Credit Suisse First Boston is asked to
act for the Company in any other formal additional capacity relating to this
engagement but not specifically addressed in this letter, such activities shall
constitute separate engagements and the terms of any such additional engagements
will be embodied in one or more separate written agreements containing terms and
conditions to be mutually agreed upon including without limitation appropriate
indemnification provisions. The indemnity provisions in the Indemnification
Agreement shall apply to any such additional engagements, unless superceded by
an indemnity provision set forth in a separate agreement applicable to any such
additional engagements and shall remain in full force and effect regardless of
any completion, modification or termination of Credit Suisse First Boston's
engagement(s).
9. Termination
The engagement of Credit Suisse First Boston hereunder (i) may be terminated at
any time, with or without cause, by either the Company or Credit Suisse First
Boston, upon ten days' prior written notice thereof to the other party and (ii)
shall terminate, if no such action described in clause (i) has been taken by
Credit Suisse First Boston or the Company, upon completion of the placement of
the Securities contemplated hereby.
In the event of any termination of Credit Suisse First Boston's engagement
hereunder, Credit Suisse First Boston will continue to be entitled to its full
Placement Fee provided for herein in the event that at any time prior to the
expiration of twelve months after any such termination the Company sells the
Securities or securities of the same or a similar class as the Securities to
either i) purchasers which were contacted by Credit Suisse First Boston in its
capacity as placement agent hereunder, or which the Company, during the term of
CSFB's engagement hereunder, approached or was approached by regarding the
placement of the Securities contemplated
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hereby, or ii) any purchasers if the Company has accepted at least $10 million
of securities as part of CSFB's engagement.
No termination of Credit Suisse First Boston's engagement hereunder shall affect
(i) the Company's obligation to reimburse Credit Suisse First Boston for
expenses as provided for herein, (ii) the Company's obligations under the
Indemnification Agreement or (iii) the provisions of paragraphs 3-10 of this
letter agreement.
10. General
No advice rendered by Credit Suisse First Boston, whether formal or informal may
be disclosed, in whole or in part, or summarized, excerpted from or otherwise
referred to without Credit Suisse First Boston's prior written consent. In
addition, Credit Suisse First Boston may not be otherwise referred to without
its prior written consent.
Credit Suisse First Boston may, at its option and expense, and with the prior
consent of the Company, such consent not to be unreasonably withheld, upon the
earliest to occur of (i) the closing of the sale of the Securities in a Private
Placement or (ii) the public announcement of a Private Placement, place
announcements and advertisements in such financial and other newspapers and
journals as it may choose, stating that Credit Suisse First Boston has acted as
exclusive placement agent to the Company in connection with such Private
Placement.
At Credit Suisse First Boston's discretion, any right set forth herein may be
exercised, and any services to be provided by Credit Suisse First Boston may be
provided, by an affiliate of Credit Suisse First Boston.
This letter agreement and the Indemnification Agreement contain the entire
agreement of the parties with respect to the subject matter hereof and supercede
and take precedence over all prior agreements or understandings, whether oral or
written, between Credit Suisse First Boston and the Company.
In connection with this engagement, Credit Suisse First Boston is acting as an
independent contractor and not in any other capacity, with duties owing solely
to the Company.
The validity and interpretation of this letter agreement shall be governed by,
and construed and enforced in accordance with, the laws of the State of New York
applicable to agreements made and to be fully performed therein (excluding the
conflicts of laws rules). The Company hereby irrevocably submits to the
jurisdiction of any court of the State of New York or the United States District
Court for the Southern District of the State of New York for the purpose of any
suit, action or other proceeding arising out of this letter agreement, or any of
the agreements or transactions contemplated hereby, which is brought by or
against the Company.
The benefits of this letter agreement shall inure to the parties hereto, their
respective successors and assigns, and to the indemnified parties hereunder and
their respective successors and assigns
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and representatives, and the obligations and liabilities assumed in this letter
agreement by the parties hereto shall be binding upon their respective
successors and assigns.
Each of the Company and Credit Suisse First Boston (and, to the extent permitted
by law, on behalf of their respective equity holders and creditors) hereby
knowingly, voluntarily and irrevocably waives any right it may have to a trial
by jury in respect of any claim based upon, arising out of or in connection with
this letter agreement.
The invalidity or unenforceability of any provision of this letter agreement
shall not affect the validity or enforceability of any other provisions of this
agreement or the Indemnification Agreement, which shall remain in full force and
effect.
We are delighted to accept this engagement and look forward to working with you
on this assignment. If this letter agreement correctly sets forth your
understanding of the agreement between Credit Suisse First Boston and the
Company with respect to this engagement, please sign and return to us the
enclosed copy of this letter agreement. The letter agreement signed by you
shall constitute a binding agreement between us as of the date first above
written.
Very truly yours,
CREDIT SUISSE FIRST BOSTON CORPORATION
By: _______________________________________
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: Director
ACCEPTED AND AGREED TO
AS OF THE DATE FIRST ABOVE WRITTEN:
GREENWICH TECHNOLOGY PARTNERS
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Officer
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Exhibit 1
Existing Investors
FG-GTP Partnerships
Vantagepoint Partnerships
Xxxxxxxxxxx Plan
Xxxxx Xxxxxxx
Persistence Partners
Xxxx Xxxxxx
Xxxx Xxxxxx
Xxxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx Xxxxxxxx
For purposes hereof, "Existing Investors" shall include any entity or person
that is an affiliate of any of the above and shall specifically include the
Starvest Partnerships.
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