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EXHIBIT 2.11 - Form of GTCR Warrant
THIS WARRANT AND ANY SHARES OF STOCK OBTAINABLE UPON ITS EXERCISE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE'S SECURITIES LAWS AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION UNDER THE SECURITIES ACT OR PURSUANT TO AN EXEMPTION
THEREFROM.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
STOCKHOLDERS AGREEMENT DATED AS OF AUGUST 14, 2000 AMONG THE ISSUER OF SUCH
SECURITIES (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.
SYNAGRO TECHNOLOGIES, INC.
STOCK PURCHASE WARRANT
Date of Issuance: ___________ Certificate No. W-______
FOR VALUE RECEIVED, Synagro Technologies, Inc., a Delaware corporation
(the "Company"), hereby grants to GTCR Capital Partners, L.P., a Delaware
limited partnership, or its registered assigns (the "Registered Holder") the
right to purchase from the Company, at any time or from time to time during the
Exercise Period (as defined in Section 1A below), up to ____________ shares (as
such number of shares shall be adjusted from time to time in accordance with
Section 2 hereof) of the Company's [name of series of Convertible Preferred
Stock], par value $.002 per share (the "Convertible Preferred"), at a per share
purchase price equal to the "Exercise Price" (as defined in Section 5 below).
This Warrant is issued pursuant to the terms of that certain Amended and
Restated GTCR Warrant Agreement, dated as of August 14, 2000 (as amended and
modified from time to time), between the Company and GTCR Capital Partners, L.P.
(the "Warrant Agreement") and is one of the "Warrants" described therein.
Certain capitalized terms used herein and not otherwise defined are defined in
Section 5 hereof. Any capitalized terms used in this Warrant but not defined
herein shall have the meaning ascribed to such term in the Warrant Agreement.
The amount and kind of securities obtainable pursuant to the rights granted
hereunder and the purchase price to be paid for such securities are subject to
adjustment pursuant to the provisions contained in this Warrant.
For income tax purposes, the value of this Warrant on the date hereof
is $______________.
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This Warrant is subject to the following provisions:
Section 1. Exercise of Warrant.
1A. Exercise Period. The Registered Holder may exercise, in whole
or part, the purchase rights represented by this Warrant at any time and from
time to time after the Date of Issuance hereof and prior to the tenth
anniversary thereof (the "Exercise Period"). The Company shall give the
Registered Holder written notice of the expiration of the Exercise Period at
least 30 days but not more than 90 days prior to the end of the Exercise Period.
1B. Exercise Procedure.
(i) This Warrant shall be deemed to have been exercised when
the Company has received all of the following items (the "Exercise Time"):
(a) a completed Exercise Agreement, as described in
Section 1C below, executed by the Person exercising all or any portion
of the purchase rights represented by this Warrant (the "Purchaser");
(b) this Warrant; and
(c) if this Warrant is not registered in the name of the
Purchaser, an Assignment or Assignments in the form set forth in
Exhibit II hereto evidencing the assignment of this Warrant to the
Purchaser, in which case the Registered Holder shall have complied with
the provisions set forth in Section 7 hereof.
(ii) Certificates evidencing the Warrant Shares purchased
upon exercise of all or any portion of this Warrant shall be delivered by the
Company to the Purchaser within five business days after the date of the
Exercise Time. Unless this Warrant has expired or all of the purchase rights
represented hereby have been exercised, the Company shall prepare a new Warrant,
substantially identical hereto, representing the rights formerly represented by
this Warrant which have not expired or been exercised and shall, within such
five-day period, deliver such new Warrant to the Person designated for delivery
in the Exercise Agreement.
(iii) The Warrant Shares issuable upon the exercise of this
Warrant shall be deemed to have been issued to the Purchaser at the Exercise
Time, and the Purchaser shall be deemed for all purposes to have become the
record holder of such Warrant Shares at the Exercise Time.
(iv) The issuance of certificates evidencing Warrant Shares
upon exercise of this Warrant shall be made without charge to the Registered
Holder or the Purchaser for any issuance tax in respect thereof or other cost
incurred by the Company in connection with such exercise and the related
issuance of Warrant Shares. Each Warrant Share issuable upon exercise of this
Warrant shall
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be fully paid and nonassessable and free from all liens and charges with respect
to the issuance thereof.
(v) The Company shall not close its books against the
transfer of this Warrant or of any Warrant Share issued or issuable upon the
exercise of this Warrant in any manner which interferes with the timely exercise
of this Warrant. The Company shall from time to time take all such action as may
be necessary to assure that the par value per share of the unissued Warrant
Shares obtainable upon exercise of this Warrant is at all times equal to or less
than the Exercise Price then in effect.
(vi) The Company shall assist and cooperate with any
Registered Holder or Purchaser required to make any governmental filings or
obtain any governmental approvals prior to or in connection with any exercise of
this Warrant (including, without limitation, making any filings required to be
made by the Company).
(vii) Notwithstanding any other provision hereof, if an
exercise of any portion of this Warrant is to be made in connection with a
registered public offering or the sale of the Company (whether by merger, sale
of stock or otherwise), the exercise of any portion of this Warrant may, at the
election of the holder hereof, be conditioned upon the consummation of the
public offering or the sale of the Company in which case such exercise shall not
be deemed to be effective until the consummation of such transaction.
(viii) The Company shall at all times reserve and keep
available out of its authorized capital stock the number of shares of its
Convertible Preferred issuable upon the exercise of this Warrant solely for the
purpose of issuance upon the exercise of this Warrant. The Company shall take
all such actions as may be necessary to assure that all such Warrant Shares may
be so issued without violation of any applicable law or governmental regulation
or any requirements of any domestic securities exchange upon which the Warrant
Shares may be listed (except for official notice of issuance which shall be
immediately delivered by the Company upon each such issuance). The Company shall
not take any action which would cause the number of authorized but unissued
shares of its Convertible Preferred to be less than the number of such shares
required to be reserved hereunder for issuance upon exercise of this Warrant.
1C. Exercise Agreement. Upon any exercise of this Warrant, a
completed Exercise Agreement substantially in the form of Exhibit I attached
hereto, executed by the Person exercising all or any portion of the purchase
rights represented by this Warrant, shall be delivered to the Company; provided
that, if the Warrant Shares are to be issued to a Person other than the Person
whose name this Warrant is registered, the Exercise Agreement shall also state
the name of the Person to whom the certificates evidencing the Warrant Shares
are to be issued; provided further, if the number of Warrant Shares to be issued
does not include all the Warrant Shares obtainable hereunder, the Exercise
Agreement shall also state the name of the Person to whom a new Warrant for the
unexercised portion of the rights hereunder is to be delivered. Such Exercise
Agreement shall be dated the actual date of execution thereof.
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Section 2. Adjustment of Exercise Price and Number of Shares. In order
to prevent dilution of the rights granted under this Warrant, the Exercise Price
and the number of Warrant Shares obtainable upon exercise of this Warrant shall
each be subject to adjustment from time to time as provided in this Section 2.
2A. Subdivision or Combination of Stock. If the Company at any
time subdivides (by any stock split, stock dividend, recapitalization or
otherwise) its outstanding shares of Convertible Preferred, then the Exercise
Price in effect immediately prior to such subdivision shall be proportionately
reduced and the number of Warrant Shares obtainable upon exercise of this
Warrant shall be proportionately increased. If the Company at any time combines
(by reverse stock split or otherwise) its outstanding shares of Convertible
Preferred, then the Exercise Price in effect immediately prior to such
combination shall be proportionately increased and the number of Warrant Shares
obtainable upon exercise of this Warrant shall be proportionately decreased.
2B. Reorganization, Reclassification, Consolidation, Merger or
Sale. Any recapitalization, reorganization, reclassification, consolidation,
merger, sale of all or substantially all of the Company's assets or other
transaction, which in each case is effected in such a way that the holders of
its outstanding shares of Convertible Preferred are entitled to receive (either
directly or upon subsequent liquidation) stock, securities or assets with
respect to or in exchange for such Convertible Preferred, is referred to herein
as an "Organic Change." Prior to the consummation of any Organic Change, the
Company shall make appropriate provision (in form and substance reasonably
satisfactory to the Registered Holder of this Warrant) to insure that the
Registered Holder of this Warrant shall thereafter have the right to obtain and
receive, in lieu of or in addition to (as the case may be) the Warrant Shares
immediately theretofore obtainable and receivable upon the exercise of this
Warrant, such shares of stock, securities or assets as may be issued or payable
with respect to or in exchange for the number of Warrant Shares immediately
theretofore acquirable and receivable upon exercise of this Warrant had this
Warrant been exercised immediately prior to the Organic Change taking place. In
any such case, the Company shall make appropriate provision (in form and
substance satisfactory to the Registered Holder of this Warrant) with respect to
the Registered Holder's rights and interests to insure that the provisions of
this Section 2 and Sections 3 and 4 hereof shall thereafter be applicable to
this Warrant (including, without limitation, in the case of any such
consolidation, merger or sale in which the successor entity or purchasing entity
is other than the Company and in which the value of the Warrant Shares as
reflected by the terms of such transaction is less than the Exercise Price in
effect immediately prior to such transaction, an immediate adjustment of the
Exercise Price and a corresponding immediate adjustment in the number of Warrant
Shares obtainable and receivable upon exercise of this Warrant). The Company
shall not effect any such consolidation, merger or sale, unless prior to the
consummation thereof, the successor entity (if other than the Company) resulting
from consolidation or merger or the entity purchasing such assets assumes by
written instrument (in form and substance satisfactory to the Registered Holder
of this Warrant), the obligation to deliver to the Registered Holder such shares
of stock, securities or assets as, in accordance with the foregoing provisions,
such holder may be entitled to acquire.
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2C. Certain Events. If any event occurs of the type contemplated
by the provisions of this Section 2 but not expressly provided for by such
provisions, then the Company's board of directors shall make an appropriate
adjustment in the Exercise Price and an appropriate adjustment in the number of
Warrant Shares obtainable upon exercise of this Warrant so as to protect the
rights of the holders of this Warrant; provided that no such adjustment shall
increase the Exercise Price or decrease the number of Warrant Shares obtainable
as otherwise determined pursuant to this Section 2.
2D. Notices.
(i) Immediately upon any adjustment of the Exercise Price,
the Company shall give written notice thereof to the Registered Holder, setting
forth in reasonable detail and certifying the calculation of such adjustment.
(ii) The Company shall give written notice to the Registered
Holder at least 20 days prior to the date on which the Company closes its books
or takes a record (A) with respect to any dividend or distribution upon the
Convertible Preferred, (B) with respect to any pro rata subscription offer to
holders of the Convertible Preferred or (C) for determining rights to vote with
respect to any Organic Change, dissolution or liquidation. The Company shall
also give written notice to the Registered Holder at least 20 days prior to the
date on which any Organic Change, dissolution or liquidation shall take place.
Section 3. Liquidating Dividends. If the Company declares or pays a
dividend upon the Convertible Preferred payable otherwise than in cash out of
earnings or earned surplus (determined in accordance with generally accepted
accounting principles, consistently applied) except for a stock dividend payable
in shares of Convertible Preferred (a "Liquidating Dividend"), then the Company
shall pay to the Registered Holder of this Warrant at the time of payment
thereof the Liquidating Dividend which would have been paid to the Registered
Holder on the Warrant Shares had this Warrant been fully exercised immediately
prior to the date on which the record was taken for such Liquidating Dividend
or, if no record was taken, the date as of which the record holders of
Convertible Preferred entitled to such dividends are to be determined.
Section 4. Purchase Rights. If at any time the Company grants, issues
or sells any Options, Convertible Securities or rights to purchase stock,
warrants, securities or other property pro rata to the record holders of its
shares of Convertible Preferred (the "Purchase Rights"), then the Registered
Holder of this Warrant shall be entitled to acquire, upon the terms applicable
to such Purchase Rights, the aggregate Purchase Rights which such holder could
have acquired if such holder had held the number of Warrant Shares obtainable
upon complete exercise of this Warrant immediately before the date on which the
record is taken for the grant, issuance or sale of such Purchase Rights or, if
no such record is taken, the date as of which the record holders of its shares
of Convertible Preferred are to be determined for the grant, issue or sale of
such Purchase Rights.
Section 5. Definitions. The following terms have meanings set forth
below:
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"Exercise Price" means $.01 per share, which is deemed paid upon the
issuance of this Warrant by virtue of the making of the Loan on the date hereof.
"Convertible Securities" means any stock or securities (directly or
indirectly) convertible into or exchangeable for shares of Convertible
Preferred.
"Options" means any rights or options to subscribe for or purchase
shares of Convertible Preferred and/or Convertible Securities.
"Person" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof.
"Warrant Share" means any share of Convertible Preferred obtained or
obtainable upon the exercise of this Warrant; provided that, if there is a
change such that the securities issuable upon exercise of this Warrant are
issued by an entity other than the Company or there is a change in the type or
class of securities so issuable, then the term "Warrant Share" shall mean one
share of the security issuable upon exercise of the Warrants if such security is
issuable in shares, or shall mean the smallest unit in which such security is
issuable if such security is not issuable in shares.
"Warrant Shares" means, collectively, each Warrant Share obtained or
obtainable upon the exercise of this Warrant.
Section 6. No Voting Rights; Limitations of Liability. This Warrant
shall not entitle the holder hereof to any voting rights or other rights as a
stockholder of the Company. No provision hereof, in the absence of affirmative
action by the Registered Holder to purchase Warrant Shares, and no enumeration
herein of the rights or privileges of the Registered Holder shall give rise to
any liability of the Registered holder for any further payment in respect of the
Warrant Shares or as a stockholder of the Company.
Section 7. Warrant Transferable. Subject to the transfer conditions
referred to in the legends imprinted hereon, this Warrant and all rights
hereunder are transferable, in whole or in part, without charge to the
Registered Holder, upon surrender of this Warrant with a properly executed
Assignment (in the form of Exhibit II attached hereto) at the principal office
of the Company.
Section 8. Warrant Exchangeable for Different Denominations. This
Warrant is exchangeable, upon the surrender hereof by the Registered Holder at
the principal office of the Company, for new Warrants of like tenor representing
in the aggregate the purchase rights hereunder, and each such new Warrant shall
represent such portion of such rights as is designated by the Registered Holder
at the time of such surrender. The date the Company initially issues this
Warrant shall be deemed to be the "Date of Issuance" hereof regardless of the
number of times new certificates representing the unexpired and unexercised
rights formerly represented by this Warrant
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shall be issued. All Warrants representing portions of the rights hereunder are
referred to herein collectively as the "Warrant."
Section 9. Replacement. Upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the Registered Holder shall be
satisfactory) of the ownership and the loss, theft, destruction or mutilation of
this Warrant and/or any certificate evidencing Warrant Shares, and in the case
of any such loss, theft or destruction, upon receipt of indemnity reasonably
satisfactory to the Company (provided that, if the holder is a financial
institution or other institutional investor, its own agreement shall be
satisfactory) or, in the case of any such mutilation, upon surrender of this
Warrant and/or such certificate (as applicable), the Company shall (at its
expense) execute and deliver, in lieu of this Warrant and/or such certificate, a
new Warrant and/or certificate of like kind representing the same rights
represented by, and dated the date of, such lost, stolen, destroyed or mutilated
Warrant and/or certificate (as applicable).
Section 10. Notices. Except as otherwise expressly provided herein, all
notices referred to in this Warrant shall be in writing and shall be delivered
personally, sent by reputable overnight courier service (charges prepaid) or
sent by registered or certified mail, return receipt requested, postage prepaid
and shall be deemed to have been given when so delivered, sent certified or
registered mail (i) to the Company at its principal executive offices and (ii)
to the Registered Holder of this Warrant, at such holder's address as it appears
in the records of the Company (unless otherwise indicated by any such holder).
Section 11. Amendment and Waiver. Except as otherwise provided herein,
the provisions of this Warrant 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 prior written consent of
the holder(s) of a majority of the purchase rights represented by this Warrant.
Section 12. Descriptive Headings. The descriptive headings of the
several Sections and paragraphs of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant.
Section 13. Governing Law. This Warrant shall be governed by, and shall
be construed and enforced in accordance with, the 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 jurisdictions) that would cause
the application of the laws of any jurisdiction other than the State of
Illinois.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
and attested by its duly authorized officers and dated as of the Date of
Issuance.
SYNAGRO TECHNOLOGIES, INC.
By:
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Its:
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Attest:
By:
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Its:
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EXHIBIT I
EXERCISE AGREEMENT
To: Synagro Technologies, Inc. Dated:
The undersigned, pursuant to the provisions set forth in the attached
Warrant (Certificate No. W-____), hereby elects to purchase ________ shares of
[name of series of Convertible Preferred Stock] obtainable under such Warrant,
the purchase price of $.01 per share having previously been paid.
Signature:
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Name:
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On behalf of:
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Its:
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Address:
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EXHIBIT II
ASSIGNMENT
FOR VALUE RECEIVED, _________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant (Certificate No. W-_____) with respect to the number of Warrant Shares
set forth below and covered thereby, unto:
Names of Assignee Address Class of Shares No. of Shares
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Dated: Signature
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Witness
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