EXHIBIT 10.48
RECAPITALIZATION AGREEMENT
THIS RECAPITALIZATION AGREEMENT (this "Agreement") is made as of
March 27, 2000 by and among ZEFER Corp., a Delaware corporation (the
"Company"), GTCR Capital Partners, L.P., a Delaware limited partnership ("GTCR
Capital"), GTCR Fund VI, L.P., a Delaware limited partnership ("GTCR Fund VI"),
GTCR VI Executive Fund, L.P., a Delaware limited partnership ("Executive Fund"),
GTCR Associates VI, a Delaware general partnership ("Associates Fund" and,
together with GTCR Capital, GTCR Fund VI and the Executive Fund, the "GTCR
Investors"), and the other stockholders of the Company set forth on the
signature pages hereto (together with the GTCR Investors, the "Stockholders").
Except as otherwise indicated herein, capitalized terms used herein are defined
in Section 6 hereof.
Each Stockholder owns the number of shares of the Company's Class A
Preferred Stock, par value $.01 per share (the "Class A Preferred") set forth
opposite such Stockholder's name on the Schedule of Stockholders attached
hereto.
Section 4B of Part B of Article Four of the Company's Restated Certificate
of Incorporation, as amended through the date hereof (the "Certificate"),
provides that the Company shall, at the request of the holders of a majority of
the Class A Preferred, apply the net cash proceeds from any public offering of
equity securities to redeem the outstanding shares of Class A Preferred at a
price equal to the liquidation value thereof plus accrued and unpaid dividends
thereon.
The Company has filed a Registration Statement on Form S-1 (File No.
333-94283) (the "Registration Statement") with the Securities and Exchange
Commission relating to an initial public offering (the "Initial Public
Offering") of the Company's common stock, par value $0.001 per share (the
"Common Stock"), under the Securities Act. The Stockholders desire that the
Company redeem the shares of Class A Preferred with the net proceeds of the
Initial Public Offering after payment of underwriting discounts and reasonable
out-of-pocket fees and expenses incurred in connection therewith (the "Net
Proceeds"). However, the Company desires to use a portion of the Net Proceeds to
fully repay the GTCR Indebtedness and the Xxxxxx Indebtedness (collectively, the
"Indebtedness"), and to maintain a portion of the Net Proceeds for working
capital and other general corporate purposes. As a result, if the Company
receives Net Proceeds less than the amounts set forth in this Agreement, there
may not be any Net Proceeds remaining to redeem outstanding shares of Class A
Preferred.
As such, the Stockholders and the Company desire to enter into an agreement
pursuant to which the Net Proceeds will be applied in the following order and
manner: (i) first, the Net Proceeds will be used to fully repay the Xxxxxx
Indebtedness; (ii) second, an additional amount of Net Proceeds, if any, not to
exceed $23,400,000 shall be retained by the Company for working capital and
other general corporate purposes; (iii) third, an additional amount of Net
Proceeds, if any, not to exceed $33,200,000 in the aggregate shall be divided
evenly with (a) one-half of such amount applied to repay the GTCR Indebtedness
and (b) the other half of such amount retained by the Company for working
capital and
other general corporate purposes; (iv) fourth, an additional amount
of Net Proceeds, if any, shall be applied to repay the remaining GTCR
Indebtedness; and (v) fifth, the remaining Net Proceeds, if any (the "Excess Net
Proceeds"), will be used by the Company to redeem shares of Class A Preferred;
provided that to the extent that the Excess Net Proceeds are not sufficient to
redeem all shares of Class A Preferred, the remaining shares of Class A
Preferred shall be exchanged for shares of Common Stock (the "Exchange Shares").
In addition, to the extent the underwriters of the Initial Public Offering
exercise their over-allotment option, the Excess Net Proceeds resulting from
such exercise, if any, will be used by the Company to redeem Exchange Shares
from the Stockholders on a pro rata basis according to the number of Exchange
Shares received by each Stockholder at a redemption price per share equal to the
initial offering price for a share of Common Stock in the Initial Public
Offering.
The parties hereto agree as follows:
Section 1. Application of Net Proceeds; Redemption; Exchange; and Closing.
1A. Application of Net Proceeds; Redemption. At the Closing (as defined in
Xxxxxxx 0X xxxxx), the Company shall apply the Net Proceeds as follows: (i)
first, the Net Proceeds shall be used to fully repay the Xxxxxx Indebtedness;
(ii) second, an additional amount of Net Proceeds, if any, not to exceed
$23,400,000 shall be retained by the Company for working capital and other
general corporate purposes; (iii) third, an additional amount of Net Proceeds,
if any, not to exceed $33,200,000 in the aggregate shall be divided evenly with
(a) one-half of such amount applied to repay the GTCR Indebtedness and (b) the
other half of such amount retained by the Company for working capital and other
general corporate purposes; (iv) fourth, an additional amount of Net Proceeds,
if any, shall be applied to repay the remaining GTCR Indebtedness; and (v)
fifth, the Excess Net Proceeds, if any, shall be used to redeem shares of Class
A Preferred from each Stockholder on a pro rata basis according to the aggregate
liquidation value and accrued and unpaid dividends of the Class A Preferred held
by such Stockholder. The redemption price for each share of Class A Preferred
shall equal the liquidation value thereof plus accrued and unpaid dividends
thereon. The redemption of the Class A Preferred pursuant to this Section 1A is
referred to herein as the "Redemption." At the Closing, each Stockholder shall
tender to the Company the shares of Class A Preferred held by such Stockholder
that are being redeemed pursuant to the Redemption duly endorsed for transfer to
the Company. As described below in Section 1B, each Stockholder shall have the
right to receive Exchange Shares in exchange for any shares of Class A Preferred
not so redeemed.
1B. Exchange of the Remaining Shares of Class A Preferred Stock. At the
Closing, each Stockholder will exchange, in accordance with this Section 1B, all
shares of Class A Preferred held by such Stockholder that have not been redeemed
pursuant to Section 1A for Exchange Shares. At the Closing, the Company shall
issue to each Stockholder a number of shares
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of Common Stock equal to (i) the aggregate liquidation value of the shares of
Class A Preferred, if any, held by such Stockholder after giving effect to the
Redemption, plus the aggregate value of all accrued and unpaid dividends on such
shares of Class A Preferred, divided by (ii) the initial offering price of a
share of Common Stock in the Initial Public Offering. At the Closing, each
Stockholder shall deliver to the Company certificates representing all shares of
Class A Preferred, if any, held by such Stockholder after giving effect to the
Redemption, duly endorsed for transfer to the Company. If a fractional share of
Exchange Shares would be issuable to a Stockholder pursuant to this Section 1B,
the Company shall deliver to such Stockholder cash in lieu of such fractional
share in an amount equal to the percentage of a share represented by such
fractional interest multiplied by the initial offering price of a share of
Common Stock in the Initial Public Offering.
1C. The Closing. The closing of the transactions contemplated by this
Section 1 (the "Closing") shall take place concurrently with the consummation of
the Initial Public Offering and at the same location. As of the Closing, all
shares of outstanding Class A Preferred shall automatically be canceled and
retired and cease to exist, and each holder of a certificate representing any
such shares shall cease to have any rights with respect thereto, except the
right to receive the Recapitalization Consideration therefor upon the surrender
of such certificate in the manner provided in this Section 1C. At the Closing
and thereafter, upon presentment and delivery by each such Stockholder to the
Company of the certificates representing the shares of Class A Preferred held by
such Stockholder duly endorsed for transfer to the Company, the Company (i)
shall pay to each Stockholder, by wire transfer of immediately available funds
to an account or accounts designated by such Stockholder, the aggregate
redemption price for such Stockholder's shares of Class A Preferred being
redeemed, (ii) shall deliver, or cause the Company's transfer agent to deliver,
to each Stockholder stock certificates evidencing the Exchange Shares to be
issued by the Company to each such Stockholder, registered in each such
Stockholder's name or its nominee's name, and (iii) shall deliver to each
Stockholder cash for any fractional shares of Exchange Stock to which such
Stockholder would otherwise be entitled (collectively, the "Recapitalization
Consideration"). Until surrendered as contemplated in this Section 1C, each
certificate representing Class A Preferred shall be deemed at any time after the
Closing to represent only the right to receive the Recapitalization
Consideration. Each certificate for Exchange Shares shall be imprinted with a
legend in substantially the following form:
The shares represented by this certificate have not been registered under
the Securities Act of 1933 (the "Act") or applicable state securities law
and may not be sold or transferred unless (i) a registration statement
covering such shares is effective under the Act or (ii) the transaction is
exempt from registration under the Act and an opinion reasonably
satisfactory to the Company to such effect has been rendered by counsel.
Section 2. Application of Over-Allotment Proceeds; Redemption; and Closing.
2A. Application of Over-Allotment Proceeds; Redemption of Exchange Shares.
Notwithstanding anything to the contrary in Section 1 above, to the extent that
the underwriters of the Initial Public Offering exercise their over-allotment
option from time to time, and to the extent that any of the Net Proceeds of such
exercise constitute Excess Net Proceeds, the Company shall,
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upon receipt of the Excess Net Proceeds resulting from such exercise(s), use
such Excess Net Proceeds of such exercise to redeem a number of Exchange Shares
equal to (i) the amount of Excess Net Proceeds received by the Company from such
exercise, divided by (ii) the initial public offering price for a share of
Common Stock in the Initial Public Offering (each an "Exchange Share
Redemption"). At each Exchange Share Redemption, each Stockholder will present
and deliver certificates representing all Exchange Shares being redeemed from
such Stockholder, duly endorsed for transfer to the Company. In connection with
each Exchange Share Redemption, the Company shall redeem such Exchange Shares
from the Stockholders on a pro rata basis according to the number of Exchange
Shares received by each Stockholder pursuant to Section 1B above, in each case
at a redemption price per share equal to the initial offering price for a share
of Common Stock in the Initial Public Offering.
2B. The Closing of Exchange Share Redemptions. The closing of each Exchange
Share Redemption shall take place concurrently with and at the same location as
the Company's issuance of Common Stock in connection with the underwriters'
related exercise of their over-allotment option. As of such closing, all
Exchange Shares to be redeemed in connection with such Exchange Share Redemption
shall automatically be canceled and retired and cease to exist, and each holder
of a certificate representing any such Exchange Shares shall cease to have any
rights with respect to such Exchange Shares, except the right to receive the
Exchange Share Redemption Consideration therefor upon the surrender of such
certificate in the manner provided in this Section 2B. At such closing and
thereafter, upon presentment and delivery by each such Stockholder to the
Company of the certificate(s) representing such Exchange Shares held by such
Stockholder duly endorsed for transfer to the Company, the Company shall (i) pay
to such Stockholder, by wire transfer of immediately available funds to an
account or accounts designated by such Stockholder, the redemption price for
each Exchange Share being redeemed from such Stockholder and (ii) deliver, or
cause the Company's transfer agent to deliver, to each Stockholder a new stock
certificate evidencing the remaining Exchange Shares that are not being redeemed
at such Exchange Share Redemption, if any, held by such Stockholder, registered
in such Stockholder's name or its nominee's name (collectively, the "Exchange
Share Redemption Consideration").
Section 3. Conditions of Each Stockholder's Obligation at the Closing. The
obligation of each Stockholder to deliver its shares of Class A Preferred for
redemption and exchange hereunder at the Closing is subject to the satisfaction
as of the Closing of the following conditions:
3A. Representations and Warranties. The representations and warranties
contained in Section 5 hereof shall be true and correct in all material
respects at and as of the Closing as though then made, except to the extent
of changes caused by the transactions expressly contemplated herein.
3B. Initial Public Offering. The Company shall consummate the Initial
Public offering concurrently with the transactions contemplated hereby.
3C. Amendment of Certificate of Incorporation; Termination of Purchase
Agreement. The Company shall have adopted, and the stockholders of the
Company shall have approved, the amended and restated certificate of
incorporation in the form of Exhibit A
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attached hereto (the "Restated Certificate"), and the Restated Certificate
shall be filed with the Secretary of State of the State of Delaware
immediately after the Closing without having been further amended or
modified. In addition, the Company shall have terminated that certain
Purchase Agreement, dated as of March 23, 1999, as amended (the "Purchase
Agreement"), by and among the Company and GTCR Fund VI, Executive Fund and
Associates Fund.
3D. Securities Law Compliance. The Company shall have made all filings
under all applicable federal and state securities laws necessary to
consummate the issuance of the Common Stock pursuant to this Agreement in
compliance with such laws.
3E. Issuance of Capital Stock. From the date hereof until the Closing
Date, the Company shall not have issued any additional shares of its
capital stock other than in connection with (i) the exercise of options
granted pursuant to a plan approved by the Board of Directors and
stockholders of the Company and/or (ii) the Initial Public Offering.
3F. Release of Guaranty. The Company shall have obtained a full and
unconditional release of the GTCR Guaranty.
3G. Closing Documents. The Company shall have delivered to each
Stockholder the following documents, which shall be in form and substance
reasonably satisfactory to the holders of a majority of the shares of Class
A Preferred:
(a) A certificate of an authorized officer of the Company stating
that the conditions specified in Sections 3A through 3F,
inclusive, have been satisfied.
(b) Certified copies of (i) the resolutions adopted by the Company's
board of directors authorizing the execution, delivery and
performance of this Agreement and all other agreements
contemplated hereby, the filing of the Restated Certificate, the
issuance of the Exchange Shares and the consummation of all other
transactions contemplated by this Agreement, and (ii) the
resolutions duly adopted by the Company's stockholders adopting
the Restated Certificate.
(c) Certified copies of the Company's certificate of incorporation
and the Company's bylaws, each as in effect at the Closing.
3H. Waiver. Any condition specified in this Section 3 may be waived on
behalf of all Stockholders if consented to by the holders of a majority of
the shares of Class A Preferred held by all Stockholders.
Section 4. Conditions of the Company's Obligation at the Closing. The
obligation of the Company to consummate the redemption and exchange hereunder at
the Closing is subject to the satisfaction as of the Closing of the following
conditions:
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4A. Representations and Warranties. The representations and warranties
contained in Section 6 hereof shall be true and correct in all material
respects at and as of the Closing as though then made, except to the extent
of changes caused by the transactions expressly contemplated herein.
4B. Initial Public Offering. The Company shall consummate the Initial
Public offering concurrently with the transactions contemplated hereby.
4C. Waiver. Any condition specified in this Section 4 may be waived by
the Company.
Section 5. Representations and Warranties of the Company. As a material
inducement to the Stockholders to enter into this Agreement and to perform their
obligations hereunder, the Company hereby represents and warrants that:
5A. Organization and Corporate Power. The Company is a corporation
duly organized, validly existing and in good standing under the laws of
Delaware and is qualified to do business in every jurisdiction in which the
failure to so qualify has had or would reasonably be expected to have a
material adverse effect on the financial condition, operating results,
assets or operations or business prospects of the Company and its
Subsidiaries taken as a whole.
5B. Authorization, No Breach. 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 and executed by the Company
and the Restated Certificate has been duly authorized. This Agreement and
all other agreements contemplated hereby to which the Company is a party
each constitutes a valid and binding obligation of the Company, enforceable
in accordance with its terms. Subject to the filing of the Restated
Certificate with the Secretary of State of the State of Delaware, the
execution and delivery by the Company of this Agreement and all other
agreements contemplated hereby to which the Company is a party, the
issuance of the Exchange Shares hereunder, and the fulfillment of and
compliance with the respective terms hereof and thereof by the Company, do
not and shall not (i) conflict with or result in a breach of the terms,
conditions or provisions of, (ii) constitute a default under, (iii) result
in the creation of any lien, security interest, charge or encumbrance upon
the Company's or any Subsidiary's capital stock or assets pursuant to, (iv)
give any third party the right to modify, terminate or accelerate any
obligation under, (v) result in a violation of, or (vi) require any
authorization, consent, approval, exemption or other action by or notice or
declaration to, or filing with, any court or administrative or governmental
body or agency pursuant to, the Restated Certificate or the certificate of
incorporation of any Subsidiary, or any law, statute, rule or regulation to
which the Company or any Subsidiary is subject, or any agreement,
instrument, order, judgment or decree to which the Company or any
Subsidiary is a party or by which their respective property is bound, other
than as expressly contemplated in such agreements described above and other
than those made and obtained.
5C. Capital Stock and Related Matters. As of the date hereof, the
authorized capital stock of the Company consists of 100,000,000 shares of Common
Stock, 39,855,268 of which are issued and outstanding, and 96,632 shares of
Class A Preferred, 41,869.1986 of which are issued and outstanding. As of the
Closing, all of the outstanding shares of the Company's capital stock (including
the Exchange Shares) shall be validly issued, fully paid and non-assessable.
There are no statutory or contractual stockholders preemptive rights or rights
of refusal with respect to the issuance of Exchange Shares hereunder which have
not been waived or terminated. The offer, sale and issuance of the Exchange
Shares hereunder do not require registration under the Securities Act or any
applicable state securities laws.
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Section 6. Representations and Warranties of the Stockholders. As a
material inducement to the Company to enter into this Agreement and to perform
its obligations hereunder, each Stockholder hereby represents and warrants to
the Company, as to itself only and not jointly and severally, that:
6A. Organization and Corporate Power. Each Stockholder that is not a
natural person is a corporation, partnership, limited partnership, limited
liability company, trust or other entity duly organized, validly existing
and in good standing under the laws of the state of its formation.
6B. Authorization; Enforceability. The execution, delivery and
performance of this Agreement and all other agreements contemplated hereby
to which the Stockholder is a party has been duly authorized and executed
by the Stockholder. This Agreement and all other agreements contemplated
hereby to which the Stockholder is a party each constitutes a valid and
binding obligation of such Stockholder, enforceable in accordance with its
terms.
6C. No Violation. The execution and delivery by the Stockholder of
this Agreement and all other agreements contemplated hereby to which the
Stockholder is a party, and the fulfillment of and compliance with the
respective terms hereof and thereof by the Stockholder, do not and shall
not (a) conflict with, result in a breach of any of the terms, conditions
or provisions of, (b) constitute a default under, (c) result in the
violation of, (d) result in the creation of any lien, security interest,
charge or encumbrance upon such Stockholders' shares of Class A Preferred,
(e) give any third party the right to terminate or to accelerate any
obligation under, or (f) require any authorization, consent, approval,
execution or other action by or notice to or filing with any court or
administrative or governmental body under, the provisions of any formation
or governing documents or the like of the Stockholder (where the
Stockholder is an entity) or any law, statute, regulation, rule, judgment,
order, instrument, decree or other restriction of any government,
governmental agency or court to which the Stockholder is subject or by
which its, his or her property is bound or any agreement to which the
Stockholder is a party.
6D. Ownership. Each Stockholder owns the shares of Class A Preferred
set forth opposite such Stockholder's name on the Schedule of Stockholders
free and clear of any restrictions on transfer, claims, taxes, liens,
charges, encumbrances, pledges, security interests, options, warrants,
rights, contracts, calls, commitments, equities and demands, except for
applicable restrictions on transfer under securities laws. The shares of
Class A Preferred set forth opposite such Stockholder's name on the
Schedule of Stockholders are all of the shares of Class A Preferred owned
by such Stockholder.
Section 7. Definitions. For the purposes of this Agreement, the following
terms have the meanings set forth below:
"Xxxxxx Indebtedness" means all outstanding principal and accrued
unpaid interest thereon payable by the Company to Xxxxxx Trust and Savings
Bank pursuant to that Unsecured Note made by the Company in favor of Xxxxxx
Trust and Savings Bank on July 16, 1999.
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"GTCR Guaranty" means all obligations of every kind and nature of GTCR
Fund VI pursuant to that certain Guaranty, dated as of July 16, 1999,
executed by GTCR Fund VI in favor of Xxxxxx Trust and Savings Bank with
respect to the Xxxxxx Indebtedness.
"GTCR Indebtedness" means all outstanding principal and accrued unpaid
interest thereon payable by the Company to GTCR Capital pursuant to that
Promissory note made by the Company in favor of GTCR Capital on November
24, 1999.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business
entity of which (i) if a corporation, a majority of the total voting power
of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a
combination thereof, or (ii) if a limited liability company, partnership,
association or other business entity, a majority of the partnership or
other similar ownership interest thereof is at the time owned or
controlled, directly or indirectly, by any Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof,
a Person or Persons shall be deemed to have a majority ownership interest
in a limited liability company, partnership, association or other business
entity if such Person or Persons shall be allocated a majority of limited
liability company, partnership, association or other business entity gains
or losses or shall be or control any managing director or general partner
of such limited liability company, partnership, association or other
business entity.
Section 8. Miscellaneous.
8A. Termination. This Agreement shall terminate upon the earlier of
(i) May 31, 2000, if the Initial Public Offering has not occurred by such
date, and (ii) the delivery of notice by the Company to each Stockholder
that the Initial Public Offering will not be consummated.
8B. Remedies. 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.
8C. 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 Class A Preferred (or
the Exchange Shares issued in exchange therefor).
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8D. 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 party or on such party's
behalf.
8E. 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. In addition, and whether or not any express assignment
has been made, the provisions of this Agreement which are for any
Stockholder's benefit as a Stockholder or holder of Class A Preferred or
Exchange Shares are also for the benefit of, and enforceable by, any
subsequent holder of such Class A Preferred or Exchange Shares, as the case
may be. No Stockholder may transfer any shares of Class A Preferred or
Exchange Shares without (i) first obtaining the written agreement of the
transferee to be bound by the provisions of this Agreement and (ii)
providing written notice of such transfer to the Company.
8F. 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.
8G. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures of
more than one party, but all of which taken together shall constitute one
and the same Agreement.
8H. Descriptive Headings, Interpretation. The descriptive headings of
this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement. The use of the word "'including" in
this Agreement shall be by way of example rather than by limitation.
8I. 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 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.
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8J. 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 overnight
courier service (charges prepaid) or telecopied to the recipient. Such
notices, demands and other communications shall be sent to the Company and
each Stockholder at the address indicated next to such party's name on the
signature pages hereto 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.
8K. Entire Agreement. Except as otherwise expressly set forth herein,
this Agreement embodies the complete agreement 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 in any way. Without limiting the foregoing, each of the Company and
each Stockholder hereby waives any rights it may have under the Certificate
with respect to the redemption or conversion of the Class A Preferred and
agrees that this Agreement shall govern such matters.
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IN WITNESS WHEREOF, the parties hereto have executed this Recapitalization
Agreement on the date first written above.
Address: ZEFER CORP.
By: /s/ Xxxxx Xxxxx
----------------------------
Its:
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Address: GTCR FUND VI, L.P.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000 By: GTCR Partners VI, L.P.
Attention: Xxxxxx X. Xxxxxxxx Its: General Partner
Xxxxxxx X. XxXxxx
Telecopier: 312/382-2201 By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Its: Principal
Address: GTCR VI EXECUTIVE FUND, L.P.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000 By: GTCR Partners VI, L.P.
Attention: Xxxxxx X. Xxxxxxxx Its: General Partner
Xxxxxxx X. XxXxxx
Telecopier: 312/382-2201 By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Its: Principal
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Address: GTCR ASSOCIATES VI
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000 By: GTCR Partners VI, L.P.
Attention: Xxxxxx X. Xxxxxxxx Its: Managing General Partner
Xxxxxxx X. XxXxxx
Telecopier: 312/382-2201 By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Its: Principal
Address: GTCR CAPITAL PARTNERS, L.P.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000 By: GTCR Mezzanine Partners, L.P.
Attention: Xxxxxx X. Xxxxxxxx Its: General Partner
Xxxxxxx X. XxXxxx
Telecopier: 312/382-2201 By: GTCR Partners VI, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Its: Principal
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Xxxxx Xxxxxxxx
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___________________________________
Xxxxx Xxxxx
*
___________________________________
Xxxxx Xxxxxxx
*
___________________________________
Xxxxx Xxxxx
*
___________________________________
Xxxxxx Xxxxxxxx
*
___________________________________
Francis Torby
*
___________________________________
Xxxxxxx Xxxxxxxx
*
___________________________________
Xxxxxx Xxxxx
*
___________________________________
Xxxxx Xxxx
/s/ Xxxxx Xxxxx
--------------------------------------
* By Xxxxx Xxxxx, Attorney-in-Fact
- 14 -
SCHEDULE OF STOCKHOLDERS
================================================================================
Name Shares of Class A Preferred
--------------------------------------------------------------------------------
GTCR Fund VI, L.P. 37,224.5765
--------------------------------------------------------------------------------
GTCR VI Executive Fund, L.P. 266.5186
--------------------------------------------------------------------------------
GTCR Associates VI 84.5659
--------------------------------------------------------------------------------
GTCR Capital Partners, L.P. 3,291.5376
--------------------------------------------------------------------------------
Xxxxxxxx, Xxxxxxx 80
--------------------------------------------------------------------------------
Xxxxxxxx, Xxxxxxx 20
--------------------------------------------------------------------------------
Xxxxxxxx, Xxxxx 141
--------------------------------------------------------------------------------
Xxxxxxx, Xxxxxx 20
--------------------------------------------------------------------------------
Xxxxx, Xxxxx 24
--------------------------------------------------------------------------------
Xxxx, Xxxxxx 121
--------------------------------------------------------------------------------
Xxxxx, Xxxxxxx 20
--------------------------------------------------------------------------------
Xxxxxxxx, Xxxxxxx 20
--------------------------------------------------------------------------------
Xxxxxxx, Xxxxxxx 10
--------------------------------------------------------------------------------
Xxxxx, Xxxx 80
--------------------------------------------------------------------------------
Xxxxx, Xxxxx 70
--------------------------------------------------------------------------------
Xxxxxxxxxx, Xxxxx 20
--------------------------------------------------------------------------------
Xxxxxxxx, Xxxx 80
--------------------------------------------------------------------------------
Xxxxx, Xxxxxxx 40
--------------------------------------------------------------------------------
Xxxxx, Xxxxx 20
--------------------------------------------------------------------------------
Xxxxxxx, Xxxxx 20
--------------------------------------------------------------------------------
Xxxxx, Xxxxx 40
--------------------------------------------------------------------------------
Xxxxxxxx, Xxxxxx 40
--------------------------------------------------------------------------------
Torby, Xxxxxxx 40
--------------------------------------------------------------------------------
Xxxxxxxx, Xxxxxxx 20
--------------------------------------------------------------------------------
Xxxxx, Xxxxxx 56
--------------------------------------------------------------------------------
Xxxx, Xxxxx 20
================================================================================
- 15 -
EXHIBIT A
[RESTATED CERTIFICATE]
- 16 -
