Exhibit 4.5
INVESTOR SECURITIES PURCHASE
AGREEMENT
This INVESTOR SECURITIES PURCHASE
AGREEMENT (this “ Agreement ”), is entered into
as of June 15, 2007, by and among CT Technologies Holdings,
LLC, a Delaware limited liability company (the “
Company ”), and the persons listed on Schedule
A hereto (each, an “ Investor ” and
collectively, the “ Investors ”). Certain
defined terms have the meanings given to those terms in
Section 4 below.
WHEREAS, in connection with the
acquisition of Companion Technologies Corporation pursuant to that
certain Stock Purchase Agreement dated as of December 31, 2006
by and among Blue Cross and Blue Shield of South Carolina and the
Company, the Company issued Series A Shares to certain of the
Investors pursuant to the Investors Securities Purchase Agreement
dated as of December 29, 2006 (the “ Original
Agreement ”).
WHEREAS, pursuant to Section 1(d) of
the Original Agreement, the Investors desire to purchase from the
Company, and the Company desires to sell to the Investors, the
Company’s Series A Shares (the “ Series A Shares
”), in the respective quantities and for the respective
prices set forth on Schedule A hereto, as the case may be,
subject to the terms and conditions set forth in this
Agreement.
NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which the parties
acknowledge, the Company and the Investors agree as
follows:
1. Purchase and Sale of
Shares.
(a) Subject to the terms and
conditions of this Agreement, on the Closing Date, each Investor
will purchase, and the Company will sell, the number of Series A
Shares set forth opposite such Investor’s name on Schedule
A for the aggregate consideration set forth opposite such
Investor’s name on Schedule A (the “ Purchase
Price ”). The Investors reserve the right to adjust the
allocations set forth on Schedule A prior to the Closing.
The issuance of any Series A Shares hereunder is conditioned upon
the contemporaneous closing of the transactions contemplated under
the Purchase Agreement. Each Investor will deliver to the Company
(or its designee) a wire transfer of immediately available funds in
the aggregate amount of the Purchase Price payable by such
Investor.
(b) In connection with the purchase
and sale of Series A Shares under this Agreement, each Investor
represents and warrants to the Company that the following
statements are true on the date hereof and will be true on the
Closing Date as if made on such date:
(i) The Series A Shares to be
acquired by such Investor pursuant to this Agreement will be
acquired for such Investor’s own account and not with a view
to, or intention of, distribution thereof in violation of the
Securities Act, any applicable state securities laws or the terms
of the LLC Agreement or the Members Agreement, and such Series A
Shares will not be disposed of in contravention of any such laws or
agreement.
(ii) Such Investor is able to bear
the economic risk of the investment in Series A Shares for an
indefinite period of time, and such Investor understands that
Series A Shares are subject to the transfer restrictions contained
herein and has not been registered under the Securities
Act.
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(iii) Such Investor has had an
opportunity to ask questions and receive answers concerning the
terms and conditions of the offering of Series A Shares and has had
full access to such other information concerning the Company as
such Investor has requested. Such Investor has reviewed, or has had
an opportunity to review copies of the following documents,
(A) the Members Agreement, (B) the LLC Agreement
(C) the Registration Rights Agreement, and (D) the Other
Purchase Agreements that the Company is entering into on the date
of this Agreement.
(iv) Each of this Agreement, the LLC
Agreement, the Members Agreement and the Registration Rights
Agreement constitutes the legal, valid and binding obligation of
such Investor, enforceable against such Investor in accordance with
its terms, and the execution, delivery, and performance of each
such Agreement by such Investor does not and will not conflict
with, violate, or cause a breach of any agreement, contract, or
instrument to which such Investor is a party or any judgment,
order, or decree to which such Investor is subject.
(c) In connection with the purchase
and sale of Series A Shares under this Agreement, the Company
represents and warrants to each Investor that the following
statements are true on the date hereof and will be true on the
Closing Date as if made on such date:
(i) Organization, Corporate
Power . The Company is a limited liability company duly
organized, validly existing and in good standing under the laws of
the State of Delaware and is qualified to do business and in good
standing in every jurisdiction in which the failure to do so would
not, or would reasonably be expected not to, have a material
adverse effect on the assets, operations, business or financial
condition of the Company and its Subsidiaries taken as a whole. The
Company possesses all requisite power and authority necessary to
own and operate its properties, to carry on its businesses as
presently conducted and as proposed to be conducted and to carry
out the transactions contemplated by this Agreement.
(ii) Series A Shares Duly
Authorized . When issued pursuant to this Agreement, all of the
Series A Shares will be duly authorized and validly issued and
outstanding, and will have been issued by the Company in material
compliance with applicable federal and state securities
laws.
(iii) Authorization;
Enforceability . The execution, delivery and performance by the
Company or its officers of this Agreement, the LLC Agreement, the
Members Agreement, the Registration Rights Agreement and all other
agreements contemplated by this Agreement and such other Agreements
to which the Company is a party and the offer, sale and issuance of
Series A Shares have been duly authorized by the Company. This
Agreement, the LLC Agreement, the Members Agreement, the
Registration Rights Agreement, the Other Purchase Agreements and
all such other agreements to which the Company is a party each
constitutes a valid and binding obligation of the Company,
enforceable in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors’ rights
generally and limitations on the availability of equitable
remedies.
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(iv) Brokerage . There are no
claims for brokerage commissions, finders’ fees or similar
compensation in connection with the transactions contemplated by
this Agreement based on any arrangement or agreement binding upon
the Company. The Company will pay, and hold each Investor harmless
against, any liability, loss or expense (including reasonable
attorneys’ fees and out-of-pocket expenses) arising in
connection with any such claim.
(v) Capitalization .
Immediately after the consummation of the transactions contemplated
under Section 1 hereof and the Other Purchase Agreements, the
equity capitalization of the Company will be as set forth on
Schedule 1 attached hereto.
(d) Reduction of ABRY
Commitment . The parties acknowledge that ABRY’s
acquisition of Series A Units hereunder is made in accordance with
Section 1(d) of the Original Agreement and, therefore, the amount
of ABRY’s investment hereunder shall reduce the $40 million
commitment of ABRY described in Section 1(d) of the Original
Agreement on a dollar for dollar basis.
2. Repurchase of Shares. If
any Executive ceases to be employed by the Company or any of its
Subsidiaries (the “ Termination ” of such
Executive), all of the Series A Shares as set forth on Schedule A
hereto for such Executive shall be subject to repurchase by the
Company and ABRY pursuant to the terms and conditions set forth in
this Section 2.
(a) Purchase Price for Series A
Shares . The purchase price for each Series A Share that is
subject to the repurchase provisions set forth in this
Section 2 (an “ Eligible Share ”) shall be
the greater of the Original Purchase Price or Fair Market Value (as
defined below) for such share as of the date of the Termination;
provided that if the Termination results from the
Company’s or a Subsidiary’s Termination of
Executive’s employment for Cause, then the repurchase price
for each Series A Share shall be the lower of the Original Purchase
Price or Fair Market Value of such share. The “ Fair
Market Value ” of any Series A Share on any date means
the amount determined by the Board in its good faith judgment as
the amount that would be received by the holder of such Series A
Share if all of the equity securities of the Company were sold to a
buyer in a single transaction and the proceeds from such
transaction were allocated to the holders of equity securities of
the Company as if the proceeds were distributed in a liquidation of
the Company pursuant to the LLC Agreement; provided ,
however , that if the holder of such Series A Shares
disputes the Board’s determination of Fair Market Value (the
“ Disputing Party ”) and the Disputing Party and
the Board are unable to reach agreement as to the Fair Market Value
within a reasonable period of time, the Company and the Disputing
Party shall seek an independent appraisal of such Fair Market Value
by an independent appraiser experienced in valuing securities such
as the Series A Shares and mutually agreeable to the Company and
the Disputing Party, and the determination of such appraiser shall
be final and binding upon the Company, ABRY and the Disputing
Party. The cost and expense of such appraisal shall be paid 50% by
the Company and 50% by the Disputing Party; provided that the
Company shall pay for the entire cost and expense of such appraisal
if the Company or ABRY, as the case may be, rescinds the applicable
Company Repurchase Notice or Supplemental Repurchase Notice in
accordance with this Agreement, as the case may be.
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(b) Company Repurchase Option
. In the event of the Termination of any Executive’s
employment with the Company or its Subsidiaries, the Company may
elect to purchase all or any portion of the Eligible Shares by
delivering written notice (the “ Company Repurchase
Notice ”) to the holder or holders of the Eligible Shares
during the period beginning on the day after the date of
Termination of such Executive and ending on the 90
th day after the Termination of such Executive (the
“ Repurchase Period ”). The Company Repurchase
Notice shall set forth the Board’s determination of the Fair
Market Value of the Eligible Shares, the number of Eligible Shares
to be acquired by the Company from each holder of the Eligible
Shares, the aggregate consideration to be paid for such shares and
the time and place for the closing of the transaction. At any time
prior to the closing of such transaction, the Company may rescind
the Company Repurchase Notice for any reason (including for no
reason at all) without liability to the holders of the Eligible
Shares. The shares to be repurchased by the Company shall first be
satisfied to the extent possible from the Series A Shares held by
such Executive at the time of delivery of the Company Repurchase
Notice. If the number of Series A Shares then held by such
Executive is less than the total number of Eligible Shares that the
Company has elected to purchase, the Company shall purchase the
remaining Eligible Shares to be purchased from such
Executive’s Permitted Transferees (as defined in the Members
Agreement) who are holders of Eligible Shares under this Agreement,
pro rata according to the number of Eligible Shares held by
such Permitted Transferees at the time of delivery of such Company
Repurchase Notice (determined as close as practicable to the
nearest whole share). If for any reason the Company has not elected
to purchase all of the Eligible Shares pursuant to this
Section 2(b), the Company shall send written notice (the
“ No-Purchase Notice ”) of that election to ABRY
and the Company prior to the end of the Repurchase
Period.
(c) Investor Repurchase
Option . If the Company has not elected to purchase all of the
Eligible Shares pursuant to Section 2(b) above, ABRY shall be
entitled to purchase all or any portion of the Eligible Shares that
are not elected to be purchased by the Company (the “
Available Shares ”). ABRY may elect to purchase any or
all of the Available Shares by giving written notice (the “
Supplemental Repurchase Notice ”) to the holder or
holders of the Available Shares at any time prior to the later to
occur of (i) the end of the Repurchase Period and
(ii) the 30 th day after the day on which the Company delivered
the Company Repurchase Notice or the No-Purchase Notice, as
applicable, to the Company and the holders of Available Shares. The
Supplemental Repurchase Notice shall set forth the number of
Available Shares to be acquired from each holder of Available
Shares, the aggregate consideration to be paid for such shares and
the time and place for the closing of the transaction. At any time
prior to the closing of such transaction, ABRY may rescind the
Supplemental Repurchase Notice for any reason (including for no
reason at all) without liability to the holders of Available
Shares. The shares to be repurchased by ABRY shall first be
satisfied to the extent possible from the Available Shares held by
the applicable Executive at the time of delivery of the
Supplemental Repurchase Notice. If the number of Available Shares
then held by such Executive is less than the total number of
Available Shares that ABRY has elected to purchase, ABRY shall
purchase the remaining Available Shares to be purchased from such
Executive’s Permitted Transferees (as defined in the Members
Agreement) who are holders of Available Shares, pro rata
according to the number of Available Shares held by such Permitted
Transferees at the time of delivery of such Supplemental Repurchase
Notice (determined as close as practicable to the nearest whole
share).
(d) Closing of Repurchase .
The closing of the purchase of such Series A Shares of Executive
pursuant to Sections 2(b) or 2(c) above shall take place on the
date designated in the Company Repurchase Notice or the
Supplemental Repurchase Notice, as applicable. The Company and/or
ABRY shall pay for such Series A Shares to be purchased by delivery
of a check or wire transfer of immediately available funds. The
purchasers of the Series
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A Shares hereunder shall be entitled to receive
customary
