EXHIBIT 10.64
FORM OF SUPPLEMENT TO PURCHASE AGREEMENT
----------------------------------------
THIS SUPPLEMENT TO PURCHASE AGREEMENT (this "Supplement") is made as of
[DATE], by and among ZEFER Corp., a Delaware corporation (the "Company") and
GTCR Fund VI, L.P., a Delaware limited partnership ("GTCR Fund VI"), GTCR VI
Executive Fund, L.P., a Delaware limited partnership ("Executive Fund") and GTCR
Associates VI, a Delaware general partnership ("Associates Fund") (each a
"Purchaser" and collectively the "Purchasers"). Except as otherwise indicated
herein, capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to such terms in the Purchase Agreement (as defined below).
The Company and the Purchasers are parties to a Purchase Agreement dated as
of March 23, 1999, as amended as of the date hereof (the "Purchase Agreement").
Pursuant to Section 1B of the Purchase Agreement, the Purchasers desire to
purchase, and the Company desires to sell, [Number of shares of Class A
Preferred Stock] shares of Class A Preferred for an aggregate purchase price of
$[Aggregate Purchase Price] (the "Class A Preferred"). The shares of Class A
Preferred purchased hereunder constitute Investor Stock and Restricted
Securities under the Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Authorization and Closing
1A. Authorization of the Class A Preferred. The Company has authorized
the issuance and sale to the Purchasers of up to 61,973.704 shares of its Class
A Preferred, having the rights and preferences set forth in the Company's
certificate of incorporation (the "Certificate of Incorporation").
1B. Purchase and Sale of the Class A Preferred. At the Closing (as
defined in Section 1C below), subject to the terms and conditions set forth
herein, (i) GTCR Fund VI shall purchase from the Company and the Company shall
sell to GTCR Fund VI, [number of GTCR Fund VI shares] shares of Class A
Preferred for an aggregate purchase price of $[GTCR Fund VI Purchase Price],
(ii) the Executive Fund shall purchase from the Company and the Company shall
sell to the Executive Fund, [number of Executive Fund shares] shares of Class A
Preferred for an aggregate purchase price of $[Executive Fund Purchase Price]
and (iii) the Associates Fund shall purchase from the Company and the Company
shall sell to the Associates Fund, [number of Associates Fund shares] shares of
Class A Preferred for an aggregate purchase price of $[Associates Fund Purchase
Price].
1C. The Closing. The closing of the purchase and sale of the Class A
Preferred (the "Closing") shall take place at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m. on [DATE]. At
the Closing, the Company shall deliver to each Purchaser a stock certificate
evidencing the shares of Class A Preferred to be purchased by such Purchaser,
registered in such Purchaser's name, upon payment of the purchase price thereof
by a cashier's or certified check, or by wire transfer of immediately available
funds to such account as designated by the Company.
Section 2. Representations and Warranties of the Company. As a material
inducement to the Purchasers to enter into this Agreement and purchase the Class
A Preferred, the Company hereby represents and warrants to the Purchasers that:
(i) the execution, delivery and performance of this Agreement and all other
agreements contemplated hereby to which the Company is a party have been duly
authorized by the Company; (ii) this Agreement constitutes a valid and binding
obligation of the Company, enforceable in accordance with its terms; and (iii)
the execution and delivery by the Company of this Agreement, the offering, sale
and issuance of the Class A Preferred hereunder and the fulfillment of and
compliance with the respective terms hereof and thereof by the Company, do not
and shall not (A) conflict with or result in a breach of the terms, conditions
or provisions of, (B) constitute a default under, (C) result in the creation of
any lien, security interest, charge or encumbrance upon the capital stock or
assets of the Company or any of its Subsidiaries pursuant to, (D) give any third
party the right to modify, terminate or accelerate any obligation under, (E)
result in a violation of, or (F) require any authorization, consent, approval,
exemption or other action by or notice to any court or administrative or
governmental body pursuant to, the Certificate of Incorporation or bylaws of the
Company or any of its Subsidiaries, or any law, statute, rule or regulation to
which the Company is subject, or any agreement, instrument, order, judgment or
decree to which the Company or any of its Subsidiaries is a party or by which it
is bound.
Section 3. Purchasers' Investment Representations. Each Purchaser hereby
represents that it is acquiring the Restricted Securities purchased hereunder or
acquired pursuant hereto for its own account with the present intention of
holding such securities for purposes of investment, and that it has no intention
of selling such securities in a public distribution in violation of the federal
securities laws or any applicable state securities laws; provided that nothing
contained herein shall prevent such Purchaser and any subsequent holders of
Restricted Securities from transferring such securities in compliance with the
provisions of Section 4 of the Purchase Agreement.
Section 4. Miscellaneous.
4A. Remedies. Each holder of Investor Stock shall have all rights and
remedies set forth in the Purchase Agreement, this Agreement and the Certificate
of Incorporation and all rights and remedies which such holders have been
granted at any time under any other agreement or contract and all of the rights
which such holders have under any law. Any Person having any rights under any
provision of 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.
4B. Legend. Each certificate for Restricted Securities issued pursuant to
this Agreement shall be imprinted with a legend in substantially the following
form:
"The securities represented by this certificate were originally issued on
[DATE], and have not been registered under the Securities Act of 1933, as
amended. The transfer of the securities represented by this certificate
is subject to the conditions specified in a Purchase Agreement, dated as
of March 23, 1999 (as amended, modified and supplemented from time to
time), between the issuer (the "Company") and certain investors, and the
Company
2
reserves the right to refuse the transfer of such securities
until such conditions have been fulfilled with respect to such transfer.
A copy of such conditions shall be furnished by the Company to the holder
hereof upon written request and without charge. The securities
represented by this certificate are subject to a Stockholders Agreement
dated as of March 23, 1999 (as amended, modified and supplemented from
time to time), among the Company and certain of the Company's
stockholders. A copy of such Stockholders Agreement will be furnished
without charge by the Company to the holder hereof upon written request."
4C. Consent to Amendments. Except as otherwise expressly provided 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 Investor Stock. No other course of dealing between
the Company and the holder of any Class A Preferred or any delay in exercising
any rights hereunder or under the Certificate of Incorporation shall operate as
a waiver of any rights of any such holders. For purposes of this Agreement,
shares of Class A Preferred held by the Company shall not be deemed to be
outstanding.
4D. Survival of Representations and Warranties. All representations 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 Purchaser or on its behalf
4E. Successors and Assigns. Except as otherwise expressly provided
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.
4F. Severability. Whenever possible, each provision of this Agreement
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.
4G. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts (including by means of telecopied signature pages), any one of
which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same Agreement.
4H. Descriptive Headings, Interpretation. The descriptive headings of
this Agreement are inserted for convenience only and do not constitute a part of
this Agreement. The use of the word "including" in this Agreement shall be by
way of example rather than by limitation.
4I. Governing Law. The laws of Delaware shall govern all issues
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
3
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.
4J. Notices. All notices, demands or other communications to be 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 express courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to the Purchasers and to the Company at the
addresses indicated in the Purchase Agreement 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.
* * * *
4
IN WITNESS WHEREOF, the parties hereto have executed this Supplement to
Purchase Agreement on the date first written above.
ZEFER Corp.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------
Its: Executive Vice President and General Counsel
GTCR FUND VI, L.P.
By: GTCR Partners VI, L.P.
Its: General Partner
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Its: Principal
GTCR VI EXECUTIVE FUND, L.P.
By: GTCR Partners VI, L.P.
Its: General Partner
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Its: Principal
GTCR ASSOCIATES VI, L.P.
By: GTCR Partners VI, L.P.
Its: General Partner
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Its: Principal
5
This Form has been executed on the following dates with the number of
shares and purchase prices noted for each such date:
DATE: January 12, 2000
Number of Shares of Class A Preferred Stock: 1,500
Aggregate Purchase Price: $1,500,000
Number of GTCR Fund VI shares: 1,485.983
GTCR Fund VI Purchase Price: $1,458,983
Number of Executive Fund Shares: 10.653
Executive Fund Purchase Price: $ 10,653
Number of Associates Fund Shares: 3,365
Associates Fund Purchase Price: $ 3,365
DATE: January 25, 2000
Number of Shares of Class A Preferred Stock: 3,350
Aggregate Purchase Price: $3,350,000
Number of GTCR Fund VI shares: 3,318.694
GTCR Fund VI Purchase Price: $3,318,694
Number of Executive Fund Shares: 23.792
Executive Fund Purchase Price: $ 23,792
Number of Associates Fund Shares: 7.514
Associates Fund Purchase Price: $ 7,514
DATE: February 25, 2000
Number of Shares of Class A Preferred Stock: 10,029.6610
Aggregate Purchase Price: $ 10,029,661
Number of GTCR Fund VI shares: 9,936.002
6
GTCR Fund VI Purchase Price: 9,936,002
Number of Executive Fund Shares: 71.241
Executive Fund Purchase Price: $ 71,241
Number of Associates Fund Shares: 22.418
Associates Fund Purchase Price: $ 22,418
DATE: May 1, 2000
Number of Shares of Class A Preferred Stock: 3,678.124
Aggregate Purchase Price: $3,678,124
Number of GTCR Fund VI shares: 3,643.752
GTCR Fund VI Purchase Price: $3,643,752
Number of Executive Fund Shares: 26.122
Executive Fund Purchase Price: $ 26,122
Number of Associates Fund Shares: 8.250
Associates Fund Purchase Price: $ 8,250
DATE: June 19, 2000
Number of Shares of Class A Preferred Stock: 2,006.249
Aggregate Purchase Price: $2,006,249
Number of GTCR Fund VI shares: 1,987.501
GTCR Fund VI Purchase Price: $1,987,501
Number of Executive Fund Shares: 14.248
Executive Fund Purchase Price: $ 14,248
Number of Associates Fund Shares: 4.500
Associates Fund Purchase Price: $ 4,500
7
DATE: July 10, 2000
Number of Shares of Class A Preferred Stock: 3,343.749
Aggregate Purchase Price: $3,343,749
Number of GTCR Fund VI shares: 3,312.502
GTCR Fund VI Purchase Price: $3,312,502
Number of Executive Fund Shares: 23.747
Executive Fund Purchase Price: $ 23,747
Number of Associates Fund Shares: 7.500
Associates Fund Purchase Price: $ 7,500
Date: August 2, 2000
Number of Shares of Class A Preferred Stock: 2,674.999
Aggregate Purchase Price: $2,674,999
Number of GTCR Fund VI Shares: 2,650.001
GTCR Fund VI Purchase Price: $2,650,001
Number of Executive Fund Shares: 18.998
Executive Fund Purchase Price: $ 18,998
Number of Associates Fund Shares: 6.000
Associates Fund Purchase Price: $ 6,000
Date: August 9, 2000
Number of Shares of Class A Preferred Stock: 2,006.249
Aggregate Purchase Price: $2,006,249
Number of GTCR Fund VI Shares: 1,987.501
GTCR Fund VI Purchase Price: $1,987,501
Number of Executive Fund Shares: 14.284
Executive Fund Purchase Price: $ 14,284
Number of Associates Fund Shares: 4.500
Associates Fund Purchase Price: $ 4,500
8