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EXHIBIT 2.7
EXECUTION
PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT (this "Agreement"), dated
as of January 27, 2000, between GTCR Xxxxxx Xxxxxx, L.L.C., a Delaware limited
liability company ("GTCR"), and Synagro Technologies, Inc., a Delaware
corporation (the "Company").
WHEREAS, GTCR Fund VII, L.P., a Delaware limited partnership
(the "Investor"), will purchase (the "Investment"), pursuant to that certain
Purchase Agreement (the "Purchase Agreement") of even date herewith between the
Company and the Investor, the Company's Series C Convertible Preferred Stock,
par value $0.002 per share and the Company's Series D Convertible Preferred
Stock, par value $.002 per share (collectively, the "Closing Preferred") and
may, from time to time in accordance with the Purchase Agreement, purchase
Future Convertible Preferred Stock (as defined in the Purchase Agreement) from
the Company (the Closing Preferred and the Future Convertible Preferred Stock
are collectively referred to herein as the "Preferred Stock");
WHEREAS, the Company desires to receive financial and
management consulting services from GTCR, and obtain the benefit of the
experience of GTCR in business and financial management generally and its
knowledge of the Company and the Company's financial affairs in particular; and
WHEREAS, in connection with the Investment, GTCR is willing to
provide financial and management consulting services to the Company and the
compensation arrangements set forth in this Agreement are designed to compensate
GTCR for such services.
NOW, THEREFORE, in consideration of the foregoing premises and
the respective agreements hereinafter set forth and the mutual benefits to be
derived herefrom, GTCR and the Company hereby agree as follows:
1. Engagement. The Company hereby engages GTCR as a financial
and management consultant, and GTCR hereby agrees to provide financial and
management consulting services to the Company, all on the terms and subject to
the conditions set forth below.
2. Services of GTCR. GTCR hereby agrees during the term of
this engagement to consult with the Company's board of directors (the "Board")
and management of the Company and its subsidiaries in such manner and on such
business and financial matters as may be reasonably requested from time to time
by the Board, including but not limited to:
(i) corporate strategy;
(ii) budgeting of future corporate investments;
(iii) acquisition and divestiture strategies; and
(iv) debt and equity financings.
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3. Personnel. GTCR shall provide and devote to the performance
of this Agreement such partners, employees and agents of GTCR as GTCR shall deem
appropriate for the furnishing of the services required thereby.
4. Placement Fees. At the time of any purchase of Preferred
Stock by the Investor pursuant to Section 1B of the Purchase Agreement, the
Company shall pay to GTCR a placement fee in immediately available funds equal
to 0.5% of the amount paid to the Company in connection with such purchase. If
any individual payment to GTCR pursuant to this Section 4 would be less than
$10,000, then such payment shall be held by the Company until such time as the
aggregate of such payments equals or exceeds $10,000.
5. Expenses. The Company shall promptly reimburse GTCR for
such reasonable travel expenses, legal fees and other out-of-pocket fees and
expenses as have been or may be incurred by GTCR, its directors, officers and
employees in connection with the Closing (as defined in the Purchase Agreement),
in connection with any financing, and in connection with the rendering of any
other services hereunder (including, but not limited to, fees and expenses
incurred in attending Company-related meetings).
6. Term. This Agreement will continue from the date hereof
until the Investor ceases to own at least 25% of the Investor Preferred (as
defined in the Purchase Agreement). No termination of this Agreement, whether
pursuant to this paragraph or otherwise, shall affect the Company's obligations
with respect to the fees, costs and expenses incurred by GTCR in rendering
services hereunder and not reimbursed by the Company as of the effective date of
such termination.
7. Liability. Neither GTCR nor any of its affiliates,
partners, employees or agents shall be liable to the Company or its subsidiaries
or affiliates for any loss, liability, damage or expense arising out of or in
connection with the performance of services contemplated by this Agreement,
unless such loss, liability, damage or expense shall be proven to result
directly from the gross negligence or willful misconduct of GTCR.
8. Indemnification. The Company agrees to indemnify and hold
harmless GTCR, its partners, affiliates, officers, agents and employees against
and from any and all loss, liability, suits, claims, costs, damages and expenses
(including attorneys' fees) arising from their performance hereunder, except as
a result of their gross negligence or intentional wrongdoing.
9. GTCR an Independent Contractor. GTCR and the Company agree
that GTCR shall perform services hereunder as an independent contractor,
retaining control over and responsibility for its own operations and personnel.
Neither GTCR nor its directors, officers, or employees shall be considered
employees or agents of the Company as a result of this Agreement nor shall any
of them have authority to contract in the name of or bind the Company, except as
expressly agreed to in writing by the Company.
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10. Notices. Any notice, report or payment required or
permitted to be given or made under this Agreement by one party to the other
shall be deemed to have been duly given or made if personally delivered or, if
mailed, when mailed by registered or certified mail, postage prepaid, to the
other party at the following addresses (or at such other address as shall be
given in writing by one party to the other):
If to GTCR:
GTCR Xxxxxx Xxxxxx, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
If to the Company:
Synagro Technologies, Inc.
0000 Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxx Liddell & Xxxx LLP
3400 Chase Tower
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
11. Entire Agreement; Modification. Those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt 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.
The provisions of this Agreement may be amended, modified and waived only with
the prior written consent of the Company and GTCR.
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12. Waiver of Breach. The waiver by either party of a breach
of any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach of that provision or any other
provision hereof.
13. Assignment. Neither GTCR nor the Company may assign its
rights or obligations under this Agreement without the express written consent
of the other, except that GTCR may assign its rights and obligations to an
affiliate of GTCR.
14. Successors. This Agreement and all the obligations and
benefits hereunder shall inure to the successors and permitted assigns of the
parties.
15. Counterparts. This Agreement may be executed and delivered
by each party hereto in separate counterparts, each of which when so executed
and delivered shall be deemed an original and both of which taken together shall
constitute one and the same agreement.
16. Choice of Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Illinois, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of Illinois or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Illinois.
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IN WITNESS WHEREOF, GTCR and the Company have caused this
Professional Services Agreement to be duly executed and delivered on the date
and year first above written.
GTCR XXXXXX XXXXXX, L.L.C.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Its: Principal
SYNAGRO TECHNOLOGIES, INC.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
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Its: Chairman/CEO
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