Exhibit 99.1
STOCK REPURCHASE AGREEMENT
This Stock Repurchase Agreement (this "Agreement"), dated as of
September 25, 2003, is by and among ▇▇▇▇▇▇ Corporation, a Delaware corporation
(the "Company"), and Advent Global GECC III Limited Partnership, Envirotech
Investment Fund I Limited Partnership, Adwest Limited Partnership, Oakstone
Ventures Limited Partnership and Advent Partners Limited Partnership (each a
"Seller" and collectively the "Sellers").
Whereas, the Sellers are the owners of shares of the Company's Series A
Convertible Redeemable Preferred Stock, $.01 par value per share (the "Series A
Preferred Stock");
Whereas, the Sellers desire to sell to the Company, and the Company
desires to purchase from the Sellers, the Sellers' shares of Series A Preferred
Stock;
Now, therefore, in consideration of the mutual promises and agreements
set forth herein, the parties hereto hereby agree as follows:
1. Agreement of Purchase and Sale. Upon the terms and subject to the
conditions herein contained, and in reliance on the representations and
warranties of the Sellers contained herein, the Company agrees to purchase from
each Seller, and each Seller agrees to sell to the Company, the number of shares
of Series A Preferred Stock set forth opposite the name of such Seller on
Schedule 1.1 hereto, for the aggregate purchase price set forth opposite the
name of such Seller on such Schedule 1.1. The aggregate number of shares of
Series A Preferred Stock to be sold and purchased pursuant to this Section 1
shall be Five Hundred Thousand (500,000) for an aggregate purchase price of
Twenty Three Million Dollars ($23,000,000), payable at the closing of the
transactions contemplated hereby (the "Closing") by wire transfer of immediately
available funds pursuant to the instructions set forth on Schedule 1.2 hereto.
Subject to the satisfaction of the condition set forth in Section 2, the Closing
shall take place on the date hereof at the offices of Fish & ▇▇▇▇▇▇▇▇▇▇ P.C.,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at another place mutually acceptable
to the Sellers and the Company. At the Closing, each Seller shall deliver or
cause to be delivered to the Company the certificates evidencing such Seller's
shares of Series A Preferred Stock, duly endorsed to the Company in blank or by
separate stock powers, and the Company shall deliver to such Seller the purchase
price set forth opposite such Seller's name on Schedule 1.1 hereto by wire
transfer of immediately available federal funds pursuant to the instructions set
forth on Schedule 1.2 hereto.
2. Condition to Closing. The Company's obligation to purchase the
Sellers' shares of Series A Preferred Stock is subject to the Company's receipt
of the resignation of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as a director of the Company in
accordance with the Company bylaws and effective upon the closing of the
transactions contemplated by this Agreement.
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3. Representations and Warranties of the Sellers. In order to induce
the Company to enter into this Agreement and to purchase the Series A Preferred
Stock, each Seller, severally and not jointly, hereby represents and warrants to
the Company as follows:
(a) Such Seller has full power and authority to enter into and perform
this Agreement and each other agreement, instrument and document required to be
executed by such Seller in connection herewith. This Agreement has been duly and
validly executed and delivered by such Seller and constitutes a valid and
binding obligation of such Seller enforceable against such Seller in accordance
with its terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization or other laws affecting the enforcement of creditors'
rights generally and the application of general principles of equity.
(b) Such Seller is the true and lawful record and beneficial owner of
the number of shares of Series A Preferred Stock set forth opposite such
Seller's name on Schedule 1.1 hereto, free and clear of any liens, restrictions,
security interests, claims, rights of another, or encumbrances; none of such
shares is subject to any outstanding option, warrant, call, or similar right of
any other person to acquire the same; none of such shares is subject to any
restriction on transfer thereof; and such Seller has the full power and
authority to convey, and will convey to the Company at Closing, good and
marketable title to such shares, free and clear of any lien, restriction,
security interest, claim, right of another, or encumbrance.
(c) The execution, delivery and performance of this Agreement by such
Seller will not (i) violate in any material respect any federal, state, county
or local law, rule or regulation applicable to such Seller or its properties,
(ii) violate or conflict with, or permit the cancellation of, any agreement to
which such Seller is a party, or by which such Seller or its properties is
bound, or result in the creation of any lien, security interest, charge or
encumbrance upon such Seller's shares of Series A Preferred Stock, or (iii)
permit the acceleration of the maturity of any indebtedness of, or indebtedness
secured by the property of, such Seller. No action, consent or approval of, or
filing with, any governmental authority is required in connection with the
execution, delivery or performance by such Seller of this Agreement (or any
agreement or other document executed in connection herewith by such Seller).
(d) Such Seller is familiar with the business, results of operations
and financial condition of the Company as of the date hereof. The Company has
made available to such Seller all agreements, documents, records and books that
such Seller has requested relating to the Company. Such Seller has had an
opportunity to ask questions of and receive answers from the Company, or a
person or persons acting on its behalf, concerning the Company, and answers have
been provided to all of such Seller's questions concerning the same. In
evaluating the advisability of selling its shares of Series A Preferred Stock,
such Seller has not been furnished and has not relied upon any representations
or other information (whether oral or written) other than as contained in any
documents, information or answers to questions (oral or written) furnished to
such Seller by the Company, or any of its officers, directors, employees,
representatives or agents.
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(e) Such Seller has not retained, utilized or been represented by any
broker, agent, finder or other intermediary in connection with the negotiation
or consummation of the transactions contemplated by this Agreement.
The representations and warranties of the Sellers set forth in this Agreement
are the only representations and warranties made by the Sellers in connection
with the transactions contemplated hereby.
4. Representations and Warranties of the Company. In order to induce
the Sellers to enter into this Agreement and to sell their shares of Series A
Preferred Stock, the Company hereby represents and warrants to the Sellers as
follows:
(a) The Company has full power and authority to enter into and perform
this Agreement and each other agreement, instrument and document required to be
executed by the Company in connection herewith. This Agreement has been duly and
validly executed and delivered by the Company and constitutes a valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization or other laws affecting the enforcement of creditors'
rights generally and the application of general principles of equity.
(b) The execution, delivery and performance of this Agreement by the
Company will not (i) violate any federal, state, county or local law, rule or
regulation applicable to the Company or its properties, (ii) violate or conflict
with, or permit the cancellation of, any agreement to which the Company is a
party, or by which the Company or its properties is bound, or result in the
creation of any lien, security interest, charge or encumbrance upon any of such
properties, or (iii) permit the acceleration of the maturity of any indebtedness
of, or indebtedness secured by the property of, the Company. No action, consent
or approval of, or filing with, any governmental authority is required in
connection with the execution, delivery or performance by the Company of this
Agreement (or any agreement or other document executed in connection herewith by
the Company).
(c) Neither this Agreement nor any other document, certificate or
statement furnished to the Sellers by or on behalf of the Company for use in
connection with the transactions contemplated by this Agreement contains any
untrue statement of a material fact or omits a material fact necessary to make
the statements made herein or therein, in light of the circumstances in which
made, not misleading. There are no facts known to the Company as of the date
hereof that, individually or collectively, would materially and adversely affect
the business or financial condition of the Company or its properties or assets,
which has not been set forth herein or in any document delivered in connection
herewith or disclosed in any of the Company's filings with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
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(d) Except for ▇.▇. ▇▇▇▇▇, who has been engaged by the Company to issue
a fairness opinion in connection with the transactions contemplated by the
Agreement, the Company has not retained, utilized or been represented by any
broker, agent, finder or other intermediary in connection with the negotiation
or consummation of the transactions contemplated by this Agreement.
5. Indemnification of the Company.
(a) Subject to Section 5(b) hereof, each Seller, severally,
but not jointly, agrees to indemnify and hold harmless the Company, and its
stockholders, officers, directors, employees and affiliates, from and against
any and all damages, losses, claims, liabilities, demands, charges, suits,
penalties, costs and expenses (including court costs and reasonable attorneys'
fees and expenses incurred in investigating and preparing for any litigation or
proceeding) (collectively, the "Losses") which any of them may sustain, or to
which any of them may be subjected, arising out of any breach or default by such
Seller of or under any of the representations, warranties, covenants, agreements
or other provisions of this Agreement or any agreement or document executed in
connection herewith.
(b) The aggregate Losses payable by any Seller pursuant to
Section 5(a) with respect to all claims for indemnification shall not exceed the
purchase price set forth opposite such Seller's name on Schedule 1.1 hereto.
(c) The Company acknowledges and agrees that, after the
Closing, and except for equitable relief before or after the Closing, including
specific performance, its sole and exclusive remedy with respect to any and all
claims relating to the subject matter of this Agreement shall be pursuant to the
indemnification provisions set forth in this Section 5.
6. Indemnification of the Sellers.
(a) Subject to Section 6(b) hereof, the Company agrees to
indemnify and hold harmless the Sellers from and against any and all Losses
which any of them may sustain, or to which any of them may be subjected, arising
out of any breach or default by the Company of or under any of the
representations, warranties, covenants, agreements or other provisions of this
Agreement or any agreement or document executed in connection herewith.
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(b) The aggregate Losses payable by the Buyer to any Seller
pursuant to Section 6(a) with respect to all claims for indemnification shall
not exceed the purchase price set forth opposite such Seller's name on Schedule
1.1 hereto.
(c) Each Seller acknowledges and agrees that, after the
Closing, and except for equitable relief before or after the Closing, including
specific performance, its sole and exclusive remedy with respect to any and all
claims relating to the subject matter of this Agreement shall be pursuant to the
indemnification provisions set forth in this Section 6.
7. Miscellaneous.
(a) Entire Agreement; Amendments. This Agreement supersedes all prior
documents, understandings and agreements, oral or written, relating to the
matters contemplated hereby and constitutes the entire understanding between the
parties hereto with respect to the subject matter hereof. Any modification or
amendment to, or waiver of, any provision of this Agreement (or any document
delivered pursuant to this Agreement unless otherwise expressly provided
therein) may be made only by an instrument in writing executed by the party
against whom enforcement thereof is sought.
(b) Successors and Assigns. Neither the Company's nor any Seller's
rights or obligations under this Agreement may be assigned without the prior
written consent of the other party. Any assignment in violation of the foregoing
shall be null and void. Subject to the foregoing, the provisions of this
Agreement (and, unless otherwise expressly provided therein, of any document
delivered pursuant to this Agreement) shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives,
successors and assigns.
(c) Invalid Provisions. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable, this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of each such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid, and enforceable.
(d) Waiver. No failure or delay on the part of any party in exercising
any right, power or privilege hereunder or under any of the documents delivered
in connection with this Agreement shall operate as a waiver of such right,
power, or privilege; nor shall any single or partial exercise of any such right,
power or privilege preclude any other or future exercise thereof or the exercise
of any other right, power or privilege.
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(e) Survival of Representations, Warranties and Covenants. Regardless
of any investigation at any time made by or on behalf of any party hereto or of
any information any party may have in respect thereof, all covenants,
agreements, representations and warranties made hereunder or pursuant hereto or
in connection with the transactions contemplated hereby shall survive the
Closing.
(f) Further Assurances. At, and from time to time after, the Closing,
at the request of the Company, but without further consideration, each Seller
shall execute and deliver such other instruments of conveyance, assignment,
transfer and delivery and take such other action as the Company may reasonably
request in order more effectively to consummate the transactions contemplated
hereby.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts. Venue for any
suit or other action initiated by any party hereto to enforce or interpret any
provision hereof shall lie exclusively in Suffolk County, Massachusetts.
(h) Taxes. The Company agrees, and specifically contemplates, that
under current law and regulations the transaction contemplated by this Agreement
is not required to be reported to the Sellers or any governmental authority on
IRS Form 1099-DIV or other information return, and that none of the terms of the
Series A Preferred Stock, and none of the terms of and transactions described in
this Agreement or any related agreement, contemplate any transaction or event,
taking into account all existing and contemplated operative facts, that would
require the reporting of any deemed, constructive or actual dividend to any of
the Sellers, and the Company shall not take any action that could cause the
Sellers to receive any deemed or constructive dividend. In the event that the
Company determines, based on advice received from its tax advisers, that this
understanding is or becomes incorrect as a result of changes in law,
regulations, or operative facts, it will give reasonable advance notice to the
Sellers of any proposed reporting inconsistent with the preceding sentence, and
will meet and confer with the Sellers or their designated professional tax
advisers in an effort to resolve the issue in a mutually satisfactory manner
before transmitting the applicable information reports to the Sellers or any
governmental authority, including the IRS.
(i) Publicity. Any press release announcing this Agreement issued by
any party hereto shall require the approval of all of the parties hereto prior
to its issuance.
(j) Prevailing Party. If any legal action or other proceeding is
brought for a breach of this Agreement or any of the representations or
warranties herein, the prevailing party shall be entitled to recover its
reasonable attorneys' fees and other costs incurred in bringing such action or
proceeding, in addition to any other relief to which such party may be entitled.
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(k) 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.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement in one or more counterparts (all of which shall constitute one and the
same agreement) as of the day and year first above written.
COMPANY:
▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, Finance & CFO
SELLERS:
ADVENT GLOBAL GECC III LIMITED PARTNERSHIP
By: Advent Global Management Limited
Partnership, General Partner
By: Advent International Limited
Partnership, General Partner
By: Advent International Corporation,
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
ENVIROTECH INVESTMENT FUND I LIMITED
PARTNERSHIP
By: Advent International Limited
Partnership, General Partner
By: Advent International Corporation,
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
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ADWEST LIMITED PARTNERSHIP
By: Advent International Limited
Partnership, General Partner
By: Advent International Corporation,
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
OAKSTONE VENTURES LIMITED PARTNERSHIP
By: Advent International Limited
Partnership, General Partner
By: Advent International Corporation,
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
ADVENT PARTNERS LIMITED PARTNERSHIP
By: Advent International Corporation,
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
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Schedule 1.1
Seller Number of Shares Purchase Price
Advent Global GECC III Limited ............... 350,000 $16,100,000
Partnership
Envirotech Investment Fund I Limited ......... 71,250 $ 3,277,500
Partnership
Adwest Limited Partnership ................... 20,000 $ 920,000
Oakstone Ventures Limited Partnership ........ 50,000 $ 2,300,000
Advent Partners Limited Partnership .......... 8,750 $ 402,500
Total ........................................ 500,000 $23,000,000
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Schedule 1.2
Wire Instructions for Advent International Clearing Account
Bank: FleetBank, N.A. (BankBoston)
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Account Name: Advent International Clearing Account
Account Number: 500 - 26395
ABA#: 011 - 000 - 390
Reference: ▇▇▇▇▇▇ Proceeds
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