Exhibit 10.48
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RECAPITALIZATION AGREEMENT
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THIS RECAPITALIZATION AGREEMENT (this "Agreement") is made as of
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August __, 2000 by and among ZEFER Corp., a Delaware corporation (the
"Company"), GTCR Capital Partners, L.P., a Delaware limited partnership ("GTCR
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Capital"), GTCR Fund VI, L.P., a Delaware limited partnership ("GTCR Fund VI"),
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GTCR VI Executive Fund, L.P., a Delaware limited partnership ("Executive Fund"),
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GTCR Associates VI, a Delaware general partnership ("Associates Fund" and,
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together with GTCR Capital, GTCR Fund VI and the Executive Fund, the "GTCR
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Investors"), and the other stockholders of the Company set forth on the
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signature pages hereto (together with the GTCR Investors, the "Stockholders").
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Except as otherwise indicated herein, capitalized terms used herein are defined
in Section 6 hereof.
WHEREAS, each Stockholder owns the number of shares of the Company's
Class A Preferred Stock, par value $.01 per share (the "Class A Preferred"), set
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forth opposite such Stockholder's name on the Schedule of Stockholders attached
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hereto; and
WHEREAS, the Company has filed a Registration Statement on Form S-1
(File No. 333-41004) (the "Registration Statement") with the Securities and
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Exchange Commission relating to an initial public offering (the "Initial Public
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Offering") of the Company's common stock, par value $0.001 per share (the
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"Common Stock"), under the Securities Act. The Company and the Stockholders
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desire that the Company use a portion of the net proceeds of the Initial Public
Offering after payment of underwriting discounts and reasonable out-of-pocket
fees and expenses incurred in connection therewith (the "Net Proceeds") to fully
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repay the ▇▇▇▇▇▇ Indebtedness, and to maintain the remaining portion of the Net
Proceeds for working capital and other general corporate purposes, including
possible acquisitions; and
WHEREAS, the Stockholders and the Company further desire to enter into
an agreement pursuant to which the shares of Class A Preferred held by the
Stockholders shall be exchanged for shares of Common Stock (the "Exchange
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Shares").
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NOW, THEREFORE, in consideration of the foregoing, and the agreements,
representations, warranties, covenants and conditions herein contained, the
parties hereto agree as follows:
Section 1. Application of Net Proceeds; Exchange; and Closing.
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1A Application of Net Proceeds. At the Closing (as defined in
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Section 1C below), the Company shall apply the Net Proceeds as follows: (i)
first, the Net Proceeds shall be used to fully repay the ▇▇▇▇▇▇ Indebtedness;
and (ii) second, the remaining amount of Net Proceeds shall be retained by the
Company for working capital and other general corporate purposes, including
possible acquisitions.
1B. Exchange of the Shares of Class A Preferred Stock. At the
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Closing, each Stockholder will exchange, in accordance with this Section 1B, all
shares of Class A Preferred held
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by such Stockholder for Exchange Shares. At the Closing, the Company shall issue
to each Stockholder a number of shares of Common Stock equal to (i) the
aggregate liquidation value of the shares of Class A Preferred held by such
Stockholder, plus the aggregate value of all accrued and unpaid dividends on
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such shares of Class A Preferred, divided by (ii) the initial offering price of
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a share of Common Stock in the Initial Public Offering. At the Closing, each
Stockholder shall deliver to the Company certificates representing all shares of
Class A Preferred held by such Stockholder, duly endorsed for transfer to the
Company. If a fractional share of Exchange Shares would be issuable to a
Stockholder pursuant to this Section 1B, the Company shall deliver to such
Stockholder cash in lieu of such fractional share in an amount equal to the
percentage of a share represented by such fractional interest multiplied by the
initial offering price of a share of Common Stock in the Initial Public
Offering.
1C The Closing. The closing of the transactions contemplated by this
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Section 1 (the "Closing") shall take place concurrently with the consummation of
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the Initial Public Offering and at the same location. As of the Closing, all
shares of outstanding Class A Preferred shall automatically be canceled and
retired and cease to exist, and each holder of a certificate representing any
such shares shall cease to have any rights with respect thereto, except the
right to receive the Recapitalization Consideration therefor upon the surrender
of such certificate in the manner provided in this Section 1C. At the Closing
and thereafter, upon presentment and delivery by each such Stockholder to the
Company of the certificates representing the shares of Class A Preferred held by
such Stockholder duly endorsed for transfer to the Company, the Company (i)
shall deliver, or cause the Company's transfer agent to deliver, to each
Stockholder stock certificates evidencing the Exchange Shares to be issued by
the Company to each such Stockholder, registered in each such Stockholder's name
or its nominee's name, and (ii) shall deliver to each Stockholder cash for any
fractional shares of Exchange Stock to which such Stockholder would otherwise be
entitled (collectively, the "Recapitalization Consideration"). Until surrendered
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as contemplated in this Section 1C, each certificate representing Class A
Preferred shall be deemed at any time after the Closing to represent only the
right to receive the Recapitalization Consideration. Each certificate for
Exchange Shares shall be imprinted with a legend in substantially the following
form:
The shares represented by this certificate have not been registered
under the Securities Act of 1933 (the "Act") or applicable state
securities law and may not be sold or transferred unless (i) a
registration statement covering such shares is effective under the Act
or (ii) the transaction is exempt from registration under the Act and
an opinion reasonably satisfactory to the Company to such effect has
been rendered by counsel.
Section 2. Conditions of Each Stockholder's Obligation at the
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Closing. The obligation of each Stockholder to deliver its shares of Class A
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Preferred for exchange hereunder at the Closing is subject to the satisfaction
as of the Closing of the following conditions:
2A. Representations and Warranties. The representations and
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warranties contained in Section 4 hereof shall be true and correct in all
material respects at and as of the Closing as though then made, except to the
extent of changes caused by the transactions expressly
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contemplated herein.
2B. Initial Public Offering. The Company shall consummate the Initial
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Public Offering concurrently with the transactions contemplated hereby.
2C. Amendment of Certificate of Incorporation; Termination of
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Purchase Agreement. The Company shall have adopted, and the stockholders of the
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Company shall have approved, the second amended and restated certificate of
incorporation in the form of Exhibit A attached hereto (the "Restated
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Certificate"), and the Restated Certificate shall be filed with the Secretary of
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State of the State of Delaware immediately after the Closing without having been
further amended or modified. In addition, the Company shall have terminated
that certain Purchase Agreement, dated as of March 23, 1999, as amended (the
"Purchase Agreement"), by and among the Company and GTCR Fund VI, Executive Fund
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and Associates Fund.
2D. Securities Law Compliance. The Company shall have made all
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filings under all applicable federal and state securities laws necessary to
consummate the issuance of the Common Stock pursuant to this Agreement in
compliance with such laws.
2E. Issuance of Capital Stock. From the date hereof until the
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Closing Date, the Company shall not have issued any additional shares of its
capital stock other than in connection with (i) the exercise of options granted
pursuant to a plan approved by the Board of Directors and stockholders of the
Company and/or (ii) the Initial Public Offering.
2F. Release of Guaranty. The Company shall have obtained a full and
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unconditional release of the GTCR Guaranty.
2G. Closing Documents. The Company shall have delivered to each
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Stockholder the following documents, which shall be in form and substance
reasonably satisfactory to the holders of a majority of the shares of Class A
Preferred:
(a) A certificate of an authorized officer of the Company stating that
the conditions specified in Sections 2A through 2F, inclusive, have
been satisfied.
(b) Certified copies of (i) the resolutions adopted by the Company's
board of directors authorizing the execution, delivery and performance
of this Agreement and all other agreements contemplated hereby, the
filing of the Restated Certificate, the issuance of the Exchange
Shares and the consummation of all other transactions contemplated by
this Agreement, and (ii) the resolutions duly adopted by the Company's
stockholders adopting the Restated Certificate.
(c) Certified copies of the Company's certificate of incorporation and
the Company's bylaws, each as in effect at the Closing.
2H. Waiver. Any condition specified in this Section 2 may be waived
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on behalf of all Stockholders if consented to by the holders of a majority of
the shares of Class A Preferred
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held by all Stockholders.
Section 3. Conditions of the Company's Obligation at the Closing. The
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obligation of the Company to consummate the exchange hereunder at the Closing is
subject to the satisfaction as of the Closing of the following conditions:
3A. Representations and Warranties. The representations and
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warranties contained in Section 5 hereof shall be true and correct in all
material respects at and as of the Closing as though then made, except to the
extent of changes caused by the transactions expressly contemplated herein.
3B. Initial Public Offering. The Company shall consummate the Initial
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Public Offering concurrently with the transactions contemplated hereby.
3C. Waiver. Any condition specified in this Section 3 may be waived
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by the Company.
Section 4. Representations and Warranties of the Company. As a
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material inducement to the Stockholders to enter into this Agreement and to
perform their obligations hereunder, the Company hereby represents and warrants
that:
4A. Organization and Corporate Power. The Company is a corporation
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duly organized, validly existing and in good standing under the laws of Delaware
and is qualified to do business in every jurisdiction in which the failure to so
qualify has had or would reasonably be expected to have a material adverse
effect on the financial condition, operating results, assets or operations or
business prospects of the Company and its Subsidiaries taken as a whole.
4B. Authorization, No Breach. The execution, delivery and performance
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of this Agreement and all other agreements contemplated hereby to which the
Company is a party have been duly authorized and executed by the Company and the
Restated Certificate has been duly authorized. This Agreement and all other
agreements contemplated hereby to which the Company is a party each constitutes
a valid and binding obligation of the Company, enforceable in accordance with
its terms. Subject to the filing of the Restated Certificate with the Secretary
of State of the State of Delaware, the execution and delivery by the Company of
this Agreement and all other agreements contemplated hereby to which the Company
is a party, the issuance of the Exchange Shares hereunder, and the fulfillment
of and compliance with the respective terms hereof and thereof by the Company,
do not and shall not (i) conflict with or result in a breach of the terms,
conditions or provisions of, (ii) constitute a default under, (iii) result in
the creation of any lien, security interest, charge or encumbrance upon the
Company's or any Subsidiary's capital stock or assets pursuant to, (iv) give any
third party the right to modify, terminate or accelerate any obligation under,
(v) result in a violation of, or (vi) require any authorization, consent,
approval, exemption or other action by or notice or declaration to, or filing
with, any court or administrative or governmental body or agency pursuant to,
the Restated Certificate or the certificate of incorporation of any Subsidiary,
or any law, statute, rule or regulation to which the Company or any Subsidiary
is subject, or any agreement, instrument, order, judgment or decree to which the
Company or any Subsidiary is a party or by which
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their respective property is bound, other than as expressly contemplated in such
agreements described above and other than those made and obtained.
4C. Capital Stock and Related Matters. As of the date hereof, the
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authorized capital stock of the Company consists of 100,000,000 shares of Common
Stock, 39,599,102 of which are issued and outstanding, 96,632 shares of Class A
Preferred, 57,584.1162 of which are issued and outstanding, and 200,000 shares
of Class B Convertible Preferred Stock, par value $.01 per share, 200,000 of
which are issued and outstanding. As of the Closing, all of the outstanding
shares of the Company's capital stock (including the Exchange Shares) shall be
validly issued, fully paid and non-assessable. There are no statutory or
contractual stockholders preemptive rights or rights of refusal with respect to
the issuance of Exchange Shares hereunder which have not been waived or
terminated. The offer, sale and issuance of the Exchange Shares hereunder do
not require registration under the Securities Act or any applicable state
securities laws.
Section 5. Representations and Warranties of the Stockholders. As a
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material inducement to the Company to enter into this Agreement and to perform
its obligations hereunder, each Stockholder hereby represents and warrants to
the Company, as to itself only and not jointly and severally, that:
5A. Organization and Corporate Power. Each Stockholder that is not a
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natural person is a corporation, partnership, limited partnership, limited
liability company, trust or other entity duly organized, validly existing and in
good standing under the laws of the state of its formation.
5B. Authorization; Enforceability. The execution, delivery and
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performance of this Agreement and all other agreements contemplated hereby to
which the Stockholder is a party have been duly authorized and executed by the
Stockholder. This Agreement and all other agreements contemplated hereby to
which the Stockholder is a party each constitutes a valid and binding obligation
of such Stockholder, enforceable in accordance with its terms.
5C. No Violation. The execution and delivery by the Stockholder of
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this Agreement and all other agreements contemplated hereby to which the
Stockholder is a party, and the fulfillment of and compliance with the
respective terms hereof and thereof by the Stockholder, do not and shall not (a)
conflict with, result in a breach of any of the terms, conditions or provisions
of, (b) constitute a default under, (c) result in the violation of, (d) result
in the creation of any lien, security interest, charge or encumbrance upon such
Stockholders' shares of Class A Preferred, (e) give any third party the right to
terminate or to accelerate any obligation under, or (f) require any
authorization, consent, approval, execution or other action by or notice to or
filing with any court or administrative or governmental body under, the
provisions of any formation or governing documents or the like of the
Stockholder (where the Stockholder is an entity) or any law, statute,
regulation, rule, judgment, order, instrument, decree or other restriction of
any government, governmental agency or court to which the Stockholder is subject
or by which its, his or her property is bound or any agreement to which the
Stockholder is a party.
5D. Ownership. Each Stockholder owns, and as of the date of the
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Closing will
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own, the shares of Class A Preferred set forth opposite such Stockholder's name
on the Schedule of Stockholders free and clear of any restrictions on transfer,
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claims, taxes, liens, charges, encumbrances, pledges, security interests,
options, warrants, rights, contracts, calls, commitments, equities and demands,
except for (i) applicable restrictions on transfer under securities laws, (ii)
those restrictions on transfer set forth in that certain Amended and Restated
Stockholders Agreement, dated as of May 26, 2000 (as amended or modified from
time to time), by and among the Company, the GTCR Investors and certain other
parties thereto and (iii) those restrictions on transfer set forth in that
certain Amended and Restated Registration Agreement, dated as of May 26, 2000
(as amended or modified from time to time), by and among the Company, the GTCR
Investors and certain other parties thereto. The shares of Class A Preferred set
forth opposite such Stockholder's name on the Schedule of Stockholders are all
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of the shares of Class A Preferred owned by such Stockholder as of the date
hereof and as of the date of the Closing.
Section 6. Definitions. For the purposes of this Agreement, the following
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terms have the meanings set forth below:
"▇▇▇▇▇▇ Indebtedness" means all outstanding principal and accrued
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unpaid interest thereon payable by the Company to ▇▇▇▇▇▇ Trust and Savings Bank
pursuant to that Unsecured Note made by the Company in favor of ▇▇▇▇▇▇ Trust and
Savings Bank on July 16, 1999.
"GTCR Guaranty" means all obligations of every kind and nature of
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GTCR Fund VI pursuant to that certain Guaranty, dated as of July 16, 1999,
executed by GTCR Fund VI in favor of ▇▇▇▇▇▇ Trust and Savings Bank with respect
to the ▇▇▇▇▇▇ Indebtedness.
"Person" means an individual, a partnership, a corporation, a
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limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Securities Act" means the Securities Act of 1933, as amended, or
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any similar federal law then in force.
"Subsidiary" means, with respect to any Person, any corporation,
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limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereof is at the time
owned or controlled, directly or indirectly, by any Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association or other business entity if
such Person or Persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or
shall be or control any managing director or general partner of such limited
liability company, partnership, association or other business entity.
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Section 7. Miscellaneous.
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7A. Termination. This Agreement shall terminate upon the earlier of
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(i) October 31, 2000, if the Initial Public Offering has not occurred by such
date, and (ii) the delivery of notice by the Company to each Stockholder that
the Initial Public Offering will not be consummated.
7B. Remedies. Any Person having any rights under any provision of
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this Agreement shall be entitled to enforce such rights specifically (without
posting a bond or other security), to recover damages by reason of any breach of
any provision of this Agreement and to exercise all other rights granted by law.
7C. Consent to Amendments. Except as otherwise expressly provided
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herein, the provisions of this Agreement may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
holders of a majority of the Class A Preferred (or the Exchange Shares issued in
exchange therefor).
7D. Survival of Representations and Warranties. All representations
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and warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, regardless of any
investigation made by any party or on such party's behalf.
7E. Successors and Assigns. Except as otherwise expressly provided
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herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not. In addition, and whether or not any express assignment has been made, the
provisions of this Agreement which are for any Stockholder's benefit as a
Stockholder or holder of Class A Preferred or Exchange Shares are also for the
benefit of, and enforceable by, any subsequent holder of such Class A Preferred
or Exchange Shares, as the case may be. No Stockholder may transfer any shares
of Class A Preferred or Exchange Shares without (i) first obtaining the written
agreement of the transferee to be bound by the provisions of this Agreement and
(ii) providing written notice of such transfer to the Company.
7F. Severability. Whenever possible, each provision of this Agreement
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
7G. Counterparts. This Agreement may be executed simultaneously in
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two or more counterparts, any one of which need not contain the signatures of
more than one party, but all of which taken together shall constitute one and
the same Agreement.
7H. Descriptive Headings, Interpretation. The descriptive headings of
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this
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Agreement are inserted for convenience only and do not constitute a substantive
part of this Agreement. The use of the word "including" in this Agreement shall
be by way of example rather than by limitation.
7I. Governing Law. The laws of Delaware shall govern all issues
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concerning the relative rights of the Company and its stockholders and all other
questions concerning the construction, validity and interpretation of this
Agreement, without giving effect to any choice of law or other conflict of law
provision or rule (whether of the State of Delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Delaware.
7J. Notices. All notices, demands or other communications to be
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given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable overnight courier service
(charges prepaid) or telecopied to the recipient. Such notices, demands and
other communications shall be sent to the Company and each Stockholder at the
address indicated next to such party's name on the signature pages hereto or to
such other address or to the attention of such other person as the recipient
party has specified by prior written notice to the sending party.
7K. Entire Agreement. Except as otherwise expressly set forth
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herein, this Agreement embodies the complete agreement among the parties hereto
with respect to the subject matter hereof and supersedes and preempts any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
Without limiting the foregoing, each of the Company and each Stockholder hereby
waives any rights it may have under the Company's Amended and Restated
Certificate of Incorporation, as amended through the date hereof, with respect
to the redemption or conversion of the Class A Preferred and agrees that this
Agreement shall govern such matters.
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IN WITNESS WHEREOF, the parties hereto have executed this
Recapitalization Agreement on the date first written above.
Address: ZEFER CORP.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Its:Executive Vice President, Chief Financial
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Officer and Treasurer
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Address: GTCR FUND VI, L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ By: GTCR Partners VI, L.P.
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Its: General Partner
Telecopier: 312/382-2201 By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Principal
Address: GTCR VI EXECUTIVE FUND, L.P.
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ By: GTCR Partners VI, L.P.
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Its: General Partner
Telecopier: 312/382-2201 By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Principal
Address: GTCR ASSOCIATES VI
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ By: GTCR Partners VI, L.P.
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Its: Managing General Partner
Telecopier: 312/382-2201 By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Principal
Address: GTCR CAPITAL PARTNERS, L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ By: GTCR Mezzanine Partners, L.P.
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Its: General Partner
Telecopier: 312/382-2201 By: GTCR Partners VI, L.P.
Its: General Partner
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Principal
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executor, Estate of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. Torby
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Attorney-in-Fact
SCHEDULE OF STOCKHOLDERS
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Name Shares of Class A Preferred
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GTCR Fund VI, L.P. 52,290.7642
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GTCR VI Executive Fund, L.P. 374.8721
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GTCR Associates VI 118.3945
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GTCR Capital Partners, L.P. 3444.0852
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