EXHIBIT 4.12
EXHIBIT E
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PUT AND CALL AGREEMENT
AGREEMENT (this "AGREEMENT"), dated as of February 28, 1997, by and
between BANKVEST CAPITAL CORP.(the "COMPANY"), a Massachusetts corporation, and
WHITNEY SUBORDINATED DEBT FUND, L.P. (the "WSDF"), a Delaware limited
partnership.
W I T N E S S E T H :
WHEREAS, pursuant to the Securities Purchase Agreement (the "PURCHASE
AGREEMENT"), WSDF has purchased from the Company (i) a subordinated promissory
note (the "NOTE"), due February 27, 2005, in the principal amount of
$15,000,000, (ii) a warrant (the "VESTED WARRANT") to purchase 118,038 shares of
Class A common stock, $1.00 par value per share, of the Company (the "COMMON
STOCK"), for an exercise price and subject to the provisions for exercise as
more fully set forth in the Vested Warrant, and (iii) a warrant (the "VESTING
WARRANT" and together with the Vested Warrant, the "WARRANTS") to purchase up to
an additional 53,654 shares of Class A Common Stock subject to adjustment and
for an exercise price and subject further to the provisions for exercise as more
fully set forth in the Vesting Warrant, in each case upon the terms and subject
to the conditions set forth in the Purchase Agreement;
WHEREAS, WSDF and the Company have agreed that the Holder (as defined
herein) of the Warrants and/or the Warrant Shares (as defined herein) shall have
the right, but not the obligation, to require the Company to purchase all or a
portion of such Warrants and/or Warrant Shares, as the case may be, as provided
herein; and
WHEREAS, WSDF and the Company have further agreed that, the Company
shall have the right, but not the obligation, to purchase from the Holder all of
the Warrants and/or Warrant Shares, as the case may be, as further provided
herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenant and obligations hereinafter set forth, the parties hereto hereby agree
as follows:
SECTION 1. DEFINITIONS. As used herein, the following terms shall
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have the following respective meanings:
"CALL PRICE" has the meaning set forth in Section 3.3.
"CALL OPTIONS" means either of the options described in Section 3.1 or
3.2
"CLOSING DATE" means February 28, 1997.
"COMMON STOCK" means the Class A common stock, $1.00 par value per
share, of the Company, and any class of stock resulting from successive changes
or reclassification of such Common Stock.
"FAIR VALUE" means the fair value of the appropriate security,
property, assets, business or entity as determined by agreement of the Company
and the Holders of two-thirds or more of the Warrant Shares provided that if the
Company and such holders are unable to reach agreement on any determination of
"Fair Value" within thirty (30) days following the occurrence of the event
giving rise to the requirement to make such determination, then such "Fair
Value" shall be as determined by an opinion of an independent investment banking
firm or firms in accordance with the following procedure: In the case of any
event which gives rise to a requirement to determine "Fair Value" pursuant to
the provisions hereof, the Company shall be responsible for initiating the
process by which Fair Value shall be determined as promptly as practicable
following such event, and if the procedures contemplated in connection with
obtaining such opinion have not been complied with fully, then any such
determination of Fair Value for any purpose of under this Agreement (and any
such resulting determination of the Repurchase Price) shall be deemed to be
preliminary and subject to adjustment pending full compliance with such
procedures. The Company and the Holder of the Warrants or Warrant Shares (who,
if more than one, shall agree among themselves by a two-thirds majority based on
the number of Warrant Shares held) shall each retain a separate independent
investment banking firm (which firm, in either case, may be the independent
investment banking firm regularly retained by the Company or such holder);
provided, however, that the Holder may, at its option, elect to rely on the firm
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retained by the Company in lieu of retaining its own firm. The fees and
expenses of the independent investment banking firm selected by the Company
shall be borne by the Company and the fees and expenses of the independent
investment banking firm selected by the Holders of the Warrants and the Warrant
Shares shall be borne by the Holders of such Warrants and the Warrant Shares.
Such firms shall determine the fair value of the security, property, assets,
business or entity, as the case may be, in question and deliver their opinion in
writing to the Company and to such Holder. If such firms cannot jointly make
such determination (or in the event that the Holder has elected to rely upon the
firm retained by the Company and disagrees with the determination made by such
firm), then, unless otherwise directed by agreement of the Company and the
Holder or Holders of two-thirds or more of the Warrant Shares, such firms (or
firm), in their (or its) sole discretion, shall choose another independent
investment banking firm for the Company and such Holders, which firm shall make
such determination and render such an opinion. In either case the determination
so made shall be conclusive and binding on the Company and such Holders. The
fees and expenses of any such determination made by the independent investment
banking firm selected by such independent banking firms (or firm) shall be borne
equally by the Company, on the one hand, and the Holders of the Warrants and
Warrant Shares, on the other hand. In determining Fair Value, no discount
shall be imposed by reason of a minority ownership interest or the illiquidity
of the stock interest being valued. The Fair Value of the Warrant Shares shall
be determined without regard to the fact that the Warrant Shares may constitute
a minority ownership interest in a closely held corporation.
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"HOLDER" means WSDF, its successors and assigns and has the meaning
ascribed to such term as set forth in Section 9 of the Warrants.
"ISSUABLE WARRANT SHARES" means the shares of Common Stock issuable at
any time upon exercise of the Warrants.
"ISSUED WARRANT SHARES" means any shares of Common Stock issued upon
exercise of the Warrants.
"NOTE" has the meaning assigned to that term in the first Whereas
clause.
"PUT OPTIONS" means either of the options described in Sections 2.1 or
2.2.
"REPURCHASE PERIOD" means the period commencing on the earliest of (a)
the seventh anniversary of the Closing Date, (b) acceleration of the Note upon
an Event of Default, or (c) the occurrence of any event requiring a mandatory
prepayment of the Note, and terminating on the earliest of (x) the effective
time of a Qualified Public Offering as such term is defined on the date hereof
in the Stockholders Agreement by and among the Company, WSDF, Primus Capital
Fund III Limited Partnership LP, PNC Venture Corp. and certain stockholders of
the Company and (y) at 5:00 p.m. New York City time on February 27, 2007.
"REPURCHASE PRICE" has the meaning set forth in Section 2.3.
"VESTED WARRANT" has the meaning assigned to that term in the first
Whereas clause.
"VESTING WARRANT" has the meaning assigned to that term in the first
Whereas clause.
"WARRANTS" means the Vested Warrant and the Vesting Warrant dated as
of the Closing Date issued to the Holder and all warrants issued upon the
transfer or division of or in substitution for any Warrant (each a "WARRANT").
"WARRANT SHARES" means, prior to the exercise of all or any part of
the Warrants, the Issuable Warrant Shares remaining issuable upon exercise
thereof, and, following the exercise of all or a part of the Warrants, the
Issued Warrant Shares.
SECTION 2. PUT OPTIONS.
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2.1 COMPANY'S OBLIGATION TO REPURCHASE WARRANTS. Upon receipt of
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written notice from the Holder of the Warrants at any time during the Repurchase
Period (the "PUT NOTICE"), the Company shall, within sixty (60) days of the date
designated in such Put Notice, repurchase from such Holder all or any portion of
the Warrants for an amount determined by multiplying (a) the Repurchase Price
per share of Common Stock as of the date specified in such notice less the
Exercise
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Price per share of Common Stock in effect on the date of such Put Notice, by (b)
the number of Issuable Warrant Shares as of such date. Upon such date designated
for the repurchase of the Warrants pursuant to this Section 2.1, the Holder
shall surrender the Warrants as designated in the Put Notice, to the Company,
without being required to make any representation or warranty (other than that
the Holder has good and valid title to the Warrants free and clear of liens,
claims, encumbrances and restrictions of any kind), against payment therefor by
(at the option of the Holder) (i) wire transfer to an account in a bank located
in the United States designated by the Holder for such purposes or (ii) delivery
of a certified or official bank check drawn on a member of the New York Federal
Reserve Clearing House.
2.2 COMPANY'S OBLIGATION TO REPURCHASE ISSUED WARRANT SHARES. Upon
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receipt of a Put Notice from any Holder of Issued Warrant Shares, at any time
during the Repurchase Period, the Company shall, within sixty (60) days of the
date designated in such Put Notice, repurchase from such Holder all or any
portion of the Issued Warrant Shares held by such Holder for an amount equal to
the number of such shares multiplied by the Repurchase Price per share as of the
date of such notice. Upon the date designated for such repurchase, the Holder
of such Issued Warrant Shares shall deliver to the Company, one or more
certificates representing the shares being repurchased duly endorsed for
transfer to the Company, without being required to make any representation or
warranty (other than that such Holder has good and valid title to the Issued
Warrant Shares free and clear of liens, claims, encumbrances and restrictions of
any kind), against payment therefor by (at the option of the Holder) (i) wire
transfer to an account in a bank located in the United States designated by the
Holder for such purposes or ii) delivery of a certified or official bank check
drawn on a member of the New York Federal Reserve Clearing House.
2.3 DETERMINATION OF THE REPURCHASE PRICE. For the purposes of this
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Section 2 the Repurchase Price per share of Common Stock as of a date specified
in the Put Notice given under Section 2.1 or 2.2 (the "REPURCHASE PRICE") shall
be equal to the Fair Value of the Company, as of the date of such
determination; divided by number of shares of Common Stock outstanding on a
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fully diluted basis (including the Warrant Shares, after giving effect to the
payment of the Exercise Price therefor), as of such date.
2.4 Anything in Sections 2.1 or 2.2 to the contrary
notwithstanding,
(a) each Put Notice must be accompanied by similar Put Notices from
Holders of all other Warrants and all other Issued Warrant Shares, except that
if the limitation in subsection (b) hereinbelow restricts the aggregate
Repurchase Price to be paid to Holder of Warrants and Issued Warrant Shares,
then the Holders of Warrants and Issued Warrant Shares shall have the right to
exercise the Put Options on one additional occasion with respect to the Warrants
and Issued Warrant Shares not repurchased;
(b) if the Put Options are exercised prior to the maturity of the
Note, by acceleration or otherwise, at a time when there remains outstanding any
shares of the Company's Series A Convertible Preferred Stock or Series B
Convertible Preferred Stock, then the Put Options
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may be exercised only with respect to portions of Warrants and/or Issued Warrant
Shares such that the aggregate Repurchase Price for all such securities to be
paid by the Company to the Holders of Warrants and/or Issued Warrant Shares
shall not exceed $2 million; and
(c) the Company shall not be obligated to repurchase Warrants or
Issued Warrant Shares if after completion of such repurchase and by reason
thereof, the Company would be in violation of any financial covenant contained
in any agreement relating to Senior Indebtedness as such term is defined in the
Purchase Agreement, or if the repurchase is prohibited by provisions of the
Business Corporation Law of Massachusetts.
SECTION 3. CALL OPTIONS.
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3.1 COMPANY'S OPTION TO REPURCHASE WARRANTS. By giving written
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notice of its intention to repurchase all of the Warrants (a "CALL NOTICE") to
the Holder thereof (which Call Notice must be accompanied by similar Call
Notices to the Holders of all other Warrants and Issued Warrant Shares), the
Company shall have the right during the Repurchase Period to repurchase all of
the Warrants from the Holder thereof for an amount determined by multiplying (a)
the Call Price per share of Common Stock less the Exercise Price per share of
Common Stock in effect on the date of such Call Notice by (b) the number of
Issuable Shares at the time issuable upon the exercise of the Warrants. The Call
Notice (which shall be irrevocable) shall (i) designate the date of repurchase,
which date shall be not more than thirty (30) days from the date of such notice,
(ii) state the Call Price per share of Common Stock as of the date of such
notice and the Exercise Price per share in effect on such date (iii) state the
number of Issuable Shares issuable upon exercise of the Warrants subject to
repurchase and (iv) indicate the method by which the Call Price per share of
Common Stock was calculated. On the date so designated in the Call Notice
pursuant to this Section 3.1, the Holder shall surrender the Warrants to the
Company, without being required to make any representation or warranty (other
than that the Holder has good and valid title to the Warrants free and clear of
liens, claims, encumbrances and restrictions of any kind), against payment
therefor by (at the option of the Holder) (i) wire transfer to an account in a
bank located in the United States designated by the Holder for such purposes or
(ii) a certified or official bank check drawn on a member of the New York
Federal Reserve Clearing House payable to the order of the Holder.
3.2 COMPANY'S OPTION TO REPURCHASE ISSUED WARRANT SHARES. By giving
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a Call Notice to the Holders of any Issued Warrant Shares (which Call Notice
must be accompanied by similar Call Notices to the Holders of all Warrants and
all other Issued Warrant Shares), the Company shall have the right during the
Repurchase Period to repurchase all Issued Warrant Shares at a price per share
equal to the Call Price per share of Common Stock as of the date of such Call
Notice. The Call Notice (which shall be irrevocable) shall (i) designate the
date of repurchase, which date shall be not more than thirty (30) days from the
date of such notice, (ii) state the Call Price per share of Common Stock as of
the date of such notice, (iii) state the number of Issued Warrant Shares subject
to repurchase, and (iv) indicate the method by which the Call Price per share
was calculated. On the date so designated, the Holders of the Issued Warrant
Shares shall deliver to the Company,
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one or more certificates representing such shares duly endorsed for transfer to
the Company, without being required to make any representation or warranty
(other than that such Holder has good and valid title to the Issued Warrant
Shares free and clear of liens, claims, encumbrances and restrictions of any
kind), against payment therefor by (at the option of the Holder) (i) wire
transfer to an account in a bank located in the United States designated by the
Holder for such purposes or (ii) delivery of a certified or official bank check
drawn on a member of the New York Federal Reserve Clearing House.
3.3 DETERMINATION OF CALL PRICE. For the purposes of this Section 3,
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the Call Price per share of Common Stock as of the date specified in the Call
Notice given pursuant to Section 3.1 or 3.2 (the "CALL PRICE") shall be equal to
the Repurchase Price as of such date.
3.4 ADJUSTMENT FOR SUBSEQUENT EVENTS. If a Change of Control or an
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Initial Public Offering shall occur within one hundred eighty (180) days after
the date of the exercise of the Company's Call Option pursuant to this Section 3
herein evidencing a Fair Value per share of Common Stock greater than the Call
Price per share of Common Stock in effect on the date of the Call Notice, then
the Company shall pay to the Holders of the Warrants or Issued Warrant Shares
repurchased pursuant to this Section 3 an amount equal to (x) (i) the Fair Value
per share of Common Stock evidenced after taking into effect the Change of
Control or the Initial Public Offering multiplied by (ii) the sum of the number
of Issuable Warrant Shares issuable upon exercise of Warrants repurchased
pursuant to this Section 3 plus the number of Issued Warrant Shares repurchased
pursuant to this Section 3, minus (y) the aggregate Call Price in effect at the
time of said repurchase.
SECTION 4. DURATION OF AGREEMENT. The rights and obligations of the
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parties under this Agreement shall terminate upon the earliest to occur of (i)
the transfer to the Company of all Warrants and the Warrant Shares owned by such
Holder and delivery to the Holder of the Repurchase Price or Call Price, as the
case may be, and (ii) Repurchase Period.
SECTION 5. COVENANTS AND WARRANTIES. The Company covenants and
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warrants as follows:
5.1 The execution, delivery and performance of this Agreement by the
Company will not violate any provision of law, any order of any court or other
agency of government, or any provision of any indenture, agreement or other
instrument to which the Company or any of its properties or assets is bound, or
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any such indenture, agreement or other instrument,
or result in the creation or imposition of any lien, charge or encumbrance of
any nature whatsoever upon any of the properties or assets of the Company.
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5.2 This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.
5.3 Neither the Company nor any of its Subsidiaries shall enter into
any agreement which contains any clause which directly or indirectly prohibits
the payment by the Company or any of its Subsidiaries required under this
Agreement, provided that the foregoing shall not include customary financial
covenants, even if such covenants might be violated as a result of such payment
being made.
SECTION 6. DEFAULT AND REMEDIES.
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6.1 DEFAULT. The failure by the Company to purchase the Warrants or
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the Warrant Shares pursuant to Sections 2 or 3 herein, shall constitute an Event
of Default under Section 6(a)(iv) of the Note and the Holders shall be afforded
all of the remedies set forth therein.
6.2 REMEDIES. The Company stipulates that the remedies at law of the
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Holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate and that, to the fullest extent
permitted by law, such terms may be specifically enforced by a decree for the
specific performance of any agreement contained herein or by an injunction
against a violation of any of the terms hereof or otherwise.
SECTION 7. SUCCESSORS AND ASSIGNS. This Agreement and the rights
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evidenced hereby shall inure to the benefit of and be binding upon the
successors and assigns of the Company, and the Holder of the Warrants and the
Holder of the Warrant Shares, and shall be enforceable by any such Holder or
Holders.
SECTION 8. NOTICES. All notices, requests and other communications
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to be given or otherwise made to the Holder or other parties hereto shall be
deemed to be sufficient if contained in a written instrument duly transmitted by
telecopy or telex or duly sent by overnight courier service or first class
registered or certified mail, postage prepaid, addressed to such party at the
address set forth below or at such other address as may hereafter be designated
in writing by the addressee to the addressor listing all parties:
(a) if to the Holder:
Whitney Subordinated Debt Fund, L.P.
177 Broad Street
7
Stamford, Connecticut 06901
Telecopier No.: (203) 973-1422
Attention: Mr. James H. Fordyce
Mr. Daniel J. O'Brien
with a copy to:
Morrison Cohen Singer & Weinstein, LLP
750 Lexington Avenue
New York, New York 10022
Telecopier No.: (212) 735-8708
Attention: David A. Scherl, Esq.
(b) if to the Company:
BankVest Capital Corp.
114 Turnpike Road
Westboro, MA 01581
Attention: Paul S. Gass
Telecopier: (502) 635-6002
with a copy to:
Goldstein & Manello, P.C.
265 Franklin Street
Boston, MA 02110
Attention: Richard J. Snyder, Esq.
Telecopier: (617) 439-8988
or to such other address or addresses as shall have been furnished in writing to
the other parties hereto. Each Holder agrees, at all times, to provide the
Company with an address for notices hereunder.
All notices hereunder shall be effective on the date of transmission
if transmitted by telex or telecopy, on the first day after delivery to an
overnight national courier service if sent by such service and on the date of
receipt if sent by mail.
SECTION 9. MODIFICATION. Except as otherwise provided herein,
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neither this Agreement nor any provision hereof shall be modified, changed,
discharged or terminated except by an instrument in writing signed by the party
against whom the enforcement of any modification, change, discharge or
termination is sought or by the agreement of the WSDF, and a majority of all
other Holders of the Warrants or Warrant Shares, if any, subject to this
Agreement (calculated on
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a fully-diluted basis); provided, however, that no modification or amendment
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shall be effective to reduce the percentage of the Warrant Shares the consent of
the Holders of which is required under this Section 9.
SECTION 10. ENTIRE AGREEMENT. This Agreement constitutes the entire
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agreement among the undersigned with respect to matters or understandings
involving the ownership, control or disposition of their Warrants and Warrants
Shares and supersedes any and all prior agreements or understandings, oral or
written, among any or all of the undersigned relating to such ownership, control
or disposition.
SECTION 11. GOVERNING LAW. This agreement shall be governed by, and
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construed in accordance with, the laws of the State of New York.
SECTION 12. COUNTERPARTS. This Agreement may be executed in one or
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more counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
BANKVEST CAPITAL CORP.
By: _______________________________________
Name:
Title:
WHITNEY SUBORDINATED DEBT FUND, L.P.
By: _______________________________________
Name:
A General Partner
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