EXHIBIT A
THIS PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE "ACT") AND MAY NOT BE SOLD, ASSIGNED OR TRANSFERRED UNLESS EITHER IT IS
FIRST REGISTERED UNDER THE ACT OR SUCH SALE, ASSIGNMENT OR TRANSFER IS MADE
PURSUANT TO AN EXEMPTION GRANTED UNDER THE ACT.
IN ADDITION, THIS PROMISSORY NOTE MAY NOT BE SOLD, ASSIGNED OR OTHERWISE
TRANSFERRED UNLESS PERMITTED HEREUNDER.
PROMISSORY NOTE
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US $2,000,000 August 3, 2000
FOR VALUE RECEIVED, DA CONSULTING GROUP, INC., a Texas corporation
(the "Borrower") promises to pay to the order of PURSE HOLDING LIMITED, a
British Virgin Islands limited company ("Lender") at such place as Lender may
designate from time to time in writing, the principal amount of Two Million
Dollars ($2,000,000) in lawful money of the United States of America, together
with interest thereon as hereinafter provided in this Promissory Note (this
"Note"). This Note has been executed and delivered pursuant to the terms of a
Securities Purchase Agreement, dated August 2, 2000, by and between the Borrower
and the Lender (the "Purchase Agreement"). Capitalized terms used herein and
not otherwise defined herein shall have the meanings ascribed to them in the
Purchase Agreement.
1. Payment at Maturity. The principal amount evidenced hereby
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shall be payable on the date (the "Maturity Date") which is (i) ninety (90) days
after the date hereof, or (ii) in the event that a Special Meeting is held prior
to the expiration of such ninety (90) day period, and (a) Shareholder Approval
is obtained at such Special Meeting, on the earlier to occur of the Closing Date
and seven (7) days after the date of such Special Meeting, or (b) Shareholder
Approval is not obtained at such Special Meeting, then the Maturity Date shall
be the date ninety (90) days after the date of such Special Meeting.
2. Interest. All amounts outstanding from time to time hereunder
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shall bear interest until such amounts are paid, at a rate equal to the prime
rate of interest announced from time to time by Citibank, N.A. ("Base Rate"),
plus three percent (3%) per annum, which rate shall change from time to time
when and as such Base Rate changes. The annual interest rate shall be
calculated for the actual days elapsed on the basis of a 360-day year. Such
interest rate shall apply before and after maturity and judgment. Such interest
shall be payable on the Maturity Date.
3. Payments in General. In the event that Shareholder Approval is
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obtained, the principal of and accrued interest on this Note shall be paid as
set forth in the Purchase Agreement, and this Note shall be canceled in
connection therewith by the Lender upon receipt of payment in full.
4. No Prepayments. This Note may not be prepaid in whole or in
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part.
5. Events of Default. The occurrence of one or more of the
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following events shall constitute an event of default hereunder:
(a) Borrower shall fail to make any payment due to Lender
under this Note when and as the same shall become due and payable whether at
maturity, by acceleration or otherwise.
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(b) Any governmental authority or court shall take any
action, or any other event shall occur with respect to the Borrower which has a
Material Adverse Effect on the Borrower or on the ability of the Borrower to
perform its obligations hereunder or under the Purchase Agreement; or
(c) If Borrower becomes insolvent, bankrupt or generally
fails to pay its debts as such debts become due; is adjudicated insolvent or
bankrupt; admits in writing its inability to pay its debts; or shall suffer a
custodian, receiver or trustee for it or substantially all of its property to be
appointed and if appointed without its consent, not be discharged within ninety
(90) days; makes an assignment for the benefit of creditors; or suffers
proceedings under any law related to bankruptcy, insolvency, liquidation or the
reorganization, readjustment or the release of debtors to be instituted against
it and if contested by it not dismissed or stayed within ninety (90) days; if
proceedings under any law related to bankruptcy, insolvency, liquidation, or the
reorganization, readjustment or the release of debtors is instituted or
commenced by Borrower; if any order for relief is entered relating to any of the
foregoing proceedings; if Borrower shall call a meeting of its creditors with a
view to arranging a composition or adjustment of its debts; or if Borrower shall
by any act or failure to act indicate its consent to, approval of or
acquiescence in any of the foregoing.
6. Remedies.
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(a) Upon the occurrence of any event of default, the entire
unpaid principal sum hereunder plus any and all interest accrued thereon plus
all other sums due and payable to Lender hereunder shall, (i) if such event of
default is referred to in paragraph 5(a) or (b) above, at the option of Lender,
or (ii) if such event of default is referred to in paragraph 5(c) above,
automatically become due and payable immediately without presentment, demand,
notice of nonpayment, protest, notice of protest, or other notice of dishonor,
all of which are hereby expressly waived by Borrower.
(b) No right or remedy conferred upon or reserved to Lender
hereunder or now or hereafter existing at law or in equity is intended to be
exclusive of any other right or remedy, and each and every such right or remedy
shall be cumulative and concurrent, and in addition to every other such right or
remedy, and may be pursued singly, concurrently, successively or otherwise, at
the sole discretion of Lender, and shall not be exhausted by any one exercise
thereof but may be exercised as often as occasion therefor shall occur.
7. Waivers. Borrower hereby waives presentment, demand, notice of
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nonpayment, protest, notice of protest, notice of dishonor and any and all other
notices in connection with any default in the payment of, or any enforcement of
the payment of, all amounts due under this Note. To the extent permitted by
law, Borrower waives the right to any stay of execution and the benefit of all
exemption laws now or hereafter in effect.
8. Notices. All notices required to be given to any of the
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parties hereunder shall be in writing and shall be deemed to have been
sufficiently given for all purposes when presented personally to such party or
sent by telecopy or overnight courier to such party at its address set forth
below:
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Borrower: DA Consulting Group, Inc.San Felipe Plaza
5847 San Felipe, Suite 3700
Houson, Texas 77057
Attention: John E. Mitchell, Chief Executive Officer
Telecopy No.: (713) 361-3001
With a copy to: Pepper Hamilton LLP
3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103-2799
Attention: Barry M. Abelson, Esquire
Telecopy No.: (215) 981-4750
Lender: Purse Holding Limited
Altstetterstrasse 126
P.O. Box 1705
CH-8048
Zurich, Switzerland
Attention: Fredy Eckstein
Telecopy No.: +41-1-439 6266
With a copy to: Morrison & Foerster LLP
1290 Avenue of the Americas
New York, New York 10104
Attention: Joseph Bartlett, Esquire
Telecopy No.: (212) 468-7900
Such notice shall be deemed to be given when received if delivered personally or
by telecopy or two business days after the date mailed if sent by an overnight
courier. Any notice of any change in such address shall also be given in the
manner set forth above. Whenever the giving of notice is required, the giving
of such notice may be waived in writing by the party entitled to receive such
notice.
9. Severability. In the event that any provision of this Note is
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held to be invalid, illegal or unenforceable in any respect or to any extent,
such provision shall nevertheless remain valid, legal and enforceable in all
such other respects and to such extent as may be permissible. Any such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Note, but this Note shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
10. Successors; Transfer. This Note inures to the benefit of
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Lender and binds Borrower, and their respective successors, and the words
"Lender" and "Borrower" whenever occurring herein shall be deemed and construed
to include such respective successors and assigns. Notwithstanding the
foregoing, this Note may not be transferred by either (a) the Lender, except
with the Borrower's consent which shall not be unreasonably withheld, or (b) the
Borrower.
11. Governing Law; Submission to Jurisdiction. This Note shall be
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governed by and construed in accordance with the laws of the State of New York,
without regard to the principals of conflict of laws. Any proceeding relating
to this Note may be brought only in the federal or state courts sitting the
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State of New York, to the jurisdiction and venue of which the parties hereby
submit. This Note may not be altered or amended, except by a writing duly
signed by the party against whom such alteration or amendment is sought to be
enforced. No course of dealing between the Lender and the Borrower or any delay
on the part of the Borrower in exercising any rights hereunder shall operate as
a waiver of any right. Upon receipt by the Borrower of the evidence
satisfactory to it of the loss, theft, destruction or mutilation of this Note or
any Note exchanged for it, and upon surrender and cancellation of such Note, if
mutilated, the Borrower will make and deliver in lieu of such Note a new Note of
like tenor and unpaid principal amount and dated as of the original date of this
Note. The Borrower agrees to execute such further instruments and to take such
further action as may reasonably be necessary to carry out the intent of this
Note.
IN WITNESS WHEREOF, the Borrower has duly executed this Note the day
and year first above written.
DA CONSULTING GROUP, INC.
By: __________________________
Name:
Title:
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