EXHIBIT 2.3
SECOND AMENDMENT TO PURCHASE AGREEMENT
AND
REPURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AGREEMENT AND REPURCHASE AND SALE
AGREEMENT (this "Amendment and Agreement") is made as of November 24, 1999, by
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and among ZEFER Corp., a Delaware corporation (the "Company") and GTCR Fund VI,
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L.P., a Delaware limited partnership ("GTCR Fund VI"), GTCR VI Executive Fund,
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L.P., a Delaware limited partnership ("Executive Fund") and GTCR Associates VI,
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a Delaware general partnership ("Associates Fund") (each a "Purchaser" and
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collectively, the "Purchasers"). Except as otherwise indicated, capitalized
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terms used herein and not otherwise defined shall have the meanings ascribed to
such terms in the Purchase Agreement (as defined below).
WHEREAS, the parties to this Amendment and Agreement are all of the
parties to that certain Purchase Agreement, dated as of March 23, 1999 (as
amended and modified from time to time), by and among the Company, GTCR Fund VI,
Executive Fund and Associates Fund (the "Purchase Agreement");
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WHEREAS, subject to the terms and conditions of the Purchase
Agreement, the Purchasers were to provide up to $97,500,000 as the equity
portion of the debt and equity financing necessary to fund acquisitions and
other internal growth initiatives of the Company;
WHEREAS, the Company now desires to restructure the financing
available to the Company for acquisitions and other internal growth initiatives;
WHEREAS, as part of such restructuring, the Company and an affiliate
of the Purchasers, GTCR Capital Partners, L.P., a Delaware limited partnership
(the "Lender"), have entered into a Loan Agreement, dated as of the date hereof
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(as amended, modified and supplemented from time to time, the "Loan Agreement"),
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and a Warrant Agreement, dated as of the date hereof (as amended, modified and
supplemented from time to time, the "Warrant Agreement"), pursuant to which the
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Lender intends to provide up to $32,196,296 in loans to the Company (the
"Aggregate Loan Amount") in exchange for a note of the Company and warrants
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representing the right to purchase shares of the Company's Common Stock and
Class A Preferred;
WHEREAS, in furtherance of such restructuring, the Company and the
Purchasers desire to make certain amendments to the Purchase Agreement in
accordance with Section 7D thereof to reduce the equity portion of the financing
available from the Purchasers by an amount equal to the Aggregate Loan Amount;
and
WHEREAS, in furtherance of such restructuring, the Company desires to
repurchase from the Purchasers, and the Purchasers desire to sell to the
Company, 1,237,804 shares of Common Stock at a purchase price of $0.167 per
share, and 1499 shares of Class A Preferred at a purchase price of $1000.00 per
share.
NOW, THEREFORE, in consideration of the foregoing premises and the
respective agreements hereinafter set forth, and the benefits to be derived
herefrom by the Company and the Purchasers, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I - SECOND AMENDMENT TO PURCHASE AGREEMENT
Section 1. Amendments to Purchase Agreement.
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1A. Section 1A of the Purchase Agreement shall be amended and
restated as follows:
Authorization of the Stock. The Company shall authorize the issuance
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and sale to the Purchasers of up to 61,973.704 shares (as adjusted
from time to time as a result of stock dividends, stock splits,
recapitalization and/or similar events) of its Class A Preferred
Stock, par value $.01 per share (the "Class A Preferred"), and up to
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6,660,000 shares (as adjusted from time to time as a result of stock
dividends, stock splits, recapitalization and/or similar events) of
its Common Stock, par value $.01 per share (the "Common Stock"), each
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having the rights and preferences set forth in Exhibit A attached
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hereto. The Class A Preferred and the Common Stock are collectively
referred to herein as the "Stock."
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1B. Section 1B(b) of the Purchase Agreement shall be amended and
restated as follows:
The Company has been organized for the purpose of owning and operating
a business in the electronic commerce consulting and implementation
industry by means of first acquiring an existing business or
businesses satisfactory to the Purchasers and thereafter from time to
time making additional acquisitions which are synergistic with or
otherwise complementary to such initial acquisition. The Purchasers
intend to provide up to $65,303,704 (including the Pre-Acquisition
Funding (as defined below)) as the equity portion of the debt and
equity financing necessary to fund such acquisitions and for other
internal growth initiatives, in each case as approved by the Board of
Directors of the Company (the "Board") and the Purchasers (an
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"Approved Use"). The funds obtained by the Company from the Purchasers
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on the Closing Date, along with additional equity investments by the
Purchasers up to an aggregate of $3,000,000 (including the investment
by the Purchasers on the Closing Date, the "Pre-Acquisition Funding"),
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shall finance the Company's costs of conducting a search for the
initial acquisition. The Purchasers' obligation to purchase any
additional stock of the Company will be conditioned on the Company's
not being in default under any of its material agreements, adequate
debt financing being available to fund any proposed acquisition or
other Approved Use on terms satisfactory to the Purchasers, and the
Company's operations and the acquisition or other Approved Use being
satisfactory to the Purchasers. In order to implement the foregoing,
the Purchasers may purchase from time to time after the Closing, upon
the written request of the Board in connection with an Approved Use,
(i) up to an additional 5,660,000 shares of Common Stock at a price of
$.50 per share and (ii) up to 61,973.704 shares of Class A Preferred
at a price of $1,000 per share (the amounts and prices set forth in
each of (i) and (ii) immediately above as adjusted from time to time
as a result of stock dividends, stock splits, recapitalization and/or
similar events). Each Purchaser shall purchase the percentage of such
shares set forth next to such Purchaser's name on the signature pages
attached hereto. At the time of any such purchase, each Purchaser
shall be entitled to receive, and the Company shall be obligated to
deliver, satisfactory representations and warranties and all other
information and documentation as such Purchaser may reasonably
request.
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Section 2. Limitations. Except as expressly amended by this Amendment and
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Agreement, all of the terms and provisions of the Purchase Agreement shall
remain in full force and effect.
ARTICLE II - REPURCHASE AND SALE AGREEMENT
Section 1. Repurchase and Sale of Common Stock. At the Closing (as defined
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in Section 2 below), (i) GTCR Fund VI shall sell to the Company and the Company
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shall purchase from GTCR Fund VI, 1,226,237 shares of Common Stock for an
aggregate purchase price of $204,781.00, and 1,485 shares of Class A Preferred
for an aggregate purchase price of $1,485,000.00, (ii) the Executive Fund shall
sell to the Company and the Company shall purchase from the Executive Fund,
8,791 shares of Common Stock for an aggregate purchase price of $1,468.00, and
11 shares of Class A Preferred for an aggregate purchase price of $11,000.00,
and (iii) the Associates Fund shall sell to the Company and the Company shall
purchase from the Associates Fund, 2,776 shares of Common Stock for $463.00, and
3 shares of Class A Preferred for $3,000.00.
Section 2. The Closing. The closing of each repurchase and sale of Common
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Stock and Class A Preferred (the "Closing") shall take place at the offices of
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Xxxxxxxx & Xxxxx, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 at 10:00 a.m.
on November 24, 1999. At the Closing, each Purchaser shall deliver to the
Company stock certificates evidencing the shares of Common Stock and Class A
Preferred to be repurchased by the Company, upon payment by the Company to the
Purchasers of the purchase price thereof by a cashier's or certified check, or
by wire transfer of immediately available funds to such account(s) designated by
the Purchasers.
ARTICLE III - MISCELLANEOUS
Section 1. Counterparts. This Amendment and Agreement may be executed
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simultaneously in two or more counterparts (including by means of faxed
signature pages), any one of which need not contain the signature of more than
one party, but all such counterparts taken together shall constitute one and the
same Amendment and Agreement.
Section 2. Descriptive Headings, Interpretation. The descriptive headings
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of this Amendment and Agreement are inserted for convenience only and do not
constitute a part of this Amendment and Agreement. The use of the word
"including" in this Amendment and Agreement shall be by way of example rather
than by limitation.
Section 3. Entire Agreement. Except as otherwise expressly set forth
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herein, this document embodies the complete agreement and understanding 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.
Section 4. Governing Law. The laws of the State of Delaware shall govern
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all issues concerning the relative rights of the Company and its stockholders
and all other questions concerning the construction, validity and interpretation
of this Amendment and Agreement, without giving effect to any choice of law or
other conflict of law provision or rule (whether of the State of
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Delaware or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Delaware.
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IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment to Purchase Agreement and Repurchase and Sale Agreement on the date
first written above.
ZEFER Corp.
By: /s/ Xxxxxxx Xxxxxx
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Its: President
GTCR FUND VI, L.P.
By: GTCR Partners VI, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx, LLC
Its: General Partner
By: /s/ illegible
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Its: Principal
GTCR VI EXECUTIVE FUND, L.P.
By: GTCR Partners VI, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx, LLC
Its: General Partner
By: /s/ illegible
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Its: Principal
GTCR ASSOCIATES VI, L.P.
By: GTCR Partners VI, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx, LLC
Its: General Partner
By: /s/ illegible
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Its: Principal
SIGNATURE PAGE TO SECOND AMENDMENT TO PURCHASE AGREEMENT AND
REPURCHASE AND SALE AGREEMENT
