EXHIBIT 2.2
FIRST AMENDMENT AND SUPPLEMENT NO. 1 TO PURCHASE AGREEMENT
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THIS FIRST AMENDMENT AND SUPPLEMENT NO. 1 TO PURCHASE AGREEMENT (this
"Amendment and Supplement") is made as of April 30, 1999, by and among ZC
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Acquisition 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 herein,
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capitalized terms used and not otherwise defined herein shall have the meanings
ascribed to such terms in the Purchase Agreement (as defined below).
WHEREAS, the parties to this Amendment and Supplement are all of the
parties to that certain Purchase Agreement dated March 23, 1999 (the "Purchase
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Agreement"), by and among the Company, GTCR Fund VI, Executive Fund and
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Associates Fund;
WHEREAS, the parties hereto desire to make certain amendments to the
Purchase Agreement in accordance with Section 7D thereof; and
WHEREAS, pursuant to Section 1B of the Purchase Agreement, the
Purchasers desire to purchase, and the Company desires to sell, 5,660,000 shares
of Common Stock for an aggregate purchase price of $2,830,000, and 4,370 shares
of Class A Preferred for an aggregate purchase price of $4,370,000. The Class A
Preferred and the Common Stock are collectively referred to herein as the
"Stock." The Stock purchased by the Purchasers hereunder constitutes Investor
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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:
ARTICLE I -- FIRST 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 96,632 shares of its Class A
Preferred Stock, par value $.01 per share (the "Class A Preferred"),
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and up to 6,736,000 shares of its Common Stock, par value $.01 per
share (the "Common Stock"), each having the rights and preferences set
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forth in Exhibit A attached hereto. The Class A Preferred and the
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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 $100 million (including the Pre-Acquisition
Funding, as defined below) in equity financing to the Company 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
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the Purchasers (an "Approved Use"). The funds obtained by the Company
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from the Purchasers on the Closing Date, along with additional
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"), shall finance the Company's costs of
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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 5,736,000 shares of
Common Stock at a price of $.50 per share and (ii) up to 96,632 shares
of Class A Preferred at a price of $1,000 per share (the amounts 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 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.
Section 2. Limitations. Except as expressly amended by this Article
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I, all of the terms and provisions of the Purchase Agreement shall remain in
full force and effect. This Article I supersedes any prior understandings,
agreements or representations by or between the Parties, written or oral, which
may have related to the subject matter hereof in any way.
ARTICLE II -- SUPPLEMENT NO. 1 TO PURCHASE AGREEMENT
Section 1. Authorization and Closing
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1A. Authorization of the Stock. The Company has authorized the
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issuance and sale to the Purchasers of up to 6,736,000 shares of Common Stock
and up to 96,632 shares of Class A Preferred, each having the rights and
preferences set forth in the Company's certificate of incorporation (the
"Certificate of Incorporation").
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1B. Purchase and Sale of Common Stock. At the Closing (as defined in
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Section 1C below), subject to the terms and conditions set forth herein, (i)
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GTCR Fund VI shall purchase from the Company and the Company shall sell to GTCR
Fund VI, 5,607,108 shares of Common Stock for $2,803,554, and 4,329 shares of
Class A Preferred for $4,329,000, (ii) the Executive Fund shall purchase from
the Company and the Company shall sell to the Executive Fund, 40,197 shares of
Common Stock for $20,098.50, and 31 shares of Class A Preferred for $31,000, and
(iii) the Associates Fund shall purchase from the Company and the Company shall
sell to the Associates Fund, 12,695 shares of Common Stock for $6,347.50, and 10
shares of Class A Preferred for $10,000.
1C. The Closing. The closing of the purchase and sale of the Common
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Stock (the "Closing") shall take place at the offices of Xxxxxxxx & Xxxxx, 200
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Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 at 10:00 a.m. on April __, 1999.
At the Closing, the Company shall deliver to each Purchaser a stock certificate
evidencing the shares of Common Stock 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
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material inducement to the Purchasers to enter into this Agreement and purchase
the Common Stock, 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;
(iii) to the knowledge of the Company, each of the representations and
warranties set forth in Articles II and III of that certain Share Exchange
Agreement dated April __, 1999, by and among the Company., ZEFER Corp. and
certain stockholders of Zefer Corp. (the "Acquisition Agreement") is true in all
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respects; and (iv) the execution and delivery by the Company of this Agreement,
the offering, sale and issuance of the Common Stock 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
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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
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transferring such securities in compliance with the provisions of Section 4 of
the Purchase Agreement.
Section 4. Miscellaneous.
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4A. Remedies. Each holder of Investor Stock shall have all rights
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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
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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 April __, 1999, 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,
between the issuer (the "Company") and certain
investors, and the Company 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, 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
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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 Investor Stock. No other course of dealing between
the Company and the holder of any Class A Preferred or Common Stock 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 or Common Stock held by the Company
shall not be deemed to be outstanding.
4D. 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 Purchaser or on its behalf
4E. 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
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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
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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
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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
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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
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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.
4J. 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 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.
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment and Supplement No. 1 to the Purchase Agreement on the date first
written above.
ZC Acquisition 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: President
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: President
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: President
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
SIGNATURE PAGE TO FIRST AMENDMENT AND SUPPLEMENT NO. 1
TO PURCHASE AGREEMENT
