Exhibit 4.4
INVESTOR SECURITIES PURCHASE
AGREEMENT
This INVESTOR SECURITIES PURCHASE
AGREEMENT (this “ Agreement ”), is entered into
as of September 22, 2008, 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 3 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, (a) pursuant to
Section l(d) of the Original Agreement, ABRY, as an affiliate of
ABRY V, and (b) each other Investor set forth on Schedule
A attached hereto, 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 issuance of any Series A Shares hereunder
is conditioned upon the contemporaneous closing of the transactions
contemplated under the Merger Agreement. On the Closing Date, 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,
severally and not jointly, 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.
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(ii) Such Investor is an accredited
investor as such term is defined in Regulation D promulgated
pursuant to Section 4(2) of the Securities Act. Such Investor
acknowledges and agrees that the Series A Shares are being sold in
reliance on an exemption from registration under the Securities Act
and exemptions contained in applicable state securities laws, and
that the Series A Shares cannot and may not be sold or transferred
except in a transaction that is exempt under the Securities Act and
those state acts or pursuant to an effective registration statement
under the Securities Act and those state acts or in a transaction
that is otherwise in compliance with the Securities Act and those
state acts. Such Investor understands that it has no contractual
right for the registration under the Securities Act of the Series A
Shares for public sale (other than under the Registration Rights
Agreement) and that, unless the Series A Shares are registered or
an exemption from registration is available, the Series A Shares
may be required to be held indefinitely.
(iii) 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 have not been registered under the Securities
Act.
(iv) 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 Merger
Agreement that the Company is entering into on the date of this
Agreement.
(v) 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, 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 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.
(vi) As an inducement to the Company
to sell the Series A Shares to such Investor, such Investor
acknowledges and agrees that the Company and the other Investors
shall have no duty or obligation to disclose to such Investor, and
such Investor shall have no right under this Agreement to be
advised of, any material information regarding the Company or any
of its Subsidiaries at any time after the date of this
Agreement.
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(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 is in
good standing in every jurisdiction in which the failure to do so
would not, or would not reasonably be expected 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 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 Original Agreement and all such
other agreements to which the Company is a party each constitute 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.
(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, the equity capitalization of the
Company will be as set forth on Schedule 1 attached
hereto.
(vi) Private Offering; Consents
and Approvals . No consent, approval, order, or authorization
of, or registration, qualification, designation, declaration, or
filing with, any federal, state, or local governmental authority on
the part of the Company is required in connection with the offer,
sale, or issuance of the Series A Shares or the consummation of any
other transaction contemplated hereby, except for compliance with
applicable state securities laws, which compliance will have
occurred within the appropriate time periods therefor. Assuming
that the representations of the Investors set forth in Section l(b)
hereto are true and correct, the offer, sale, and issuance of the
Series A Shares in conformity with the terms of this Agreement are
exempt from the registration requirements of Section 5 of the
Securities Act, and from the qualification requirements of each
applicable state securities laws, and neither the Company nor any
authorized agent acting on its behalf will take any action
hereafter that would cause the loss of such exemptions.
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(vii) Registration Rights; Voting
Rights . Other than pursuant to the Registration Rights
Agreement, the Company has not granted or agreed to grant, and is
not under any obligation to provide, any rights to register under
the Securities Act any of its presently outstanding securities or
any of its securities that may be issued subsequently, and to the
Company’s knowledge, except as set forth in the LLC Agreement
and the Members Agreement, no stockholder of the Company has
entered into any agreement with respect to the voting of equity
securities of the Company.
(viii) Notwithstanding anything to
the contrary in this Agreement, the issuance of Series A Shares
pursuant to this Agreement does not (i) require the Company to
register under the Investment Company Act of 1940, as amended from
time to time, (ii) cause the Company to have more than 100
partners (within the meaning of Treasury Regulation
Section 1.7704-l(h), including the look-through rule in
Treasury Regulation Section 1.7704-l(h)(3)), (iii) affect
the Company’s existence or qualification as a limited
liability company under the Delaware Limited Liability Company Act,
as the same may be amended from time to time, (iv) cause the
Company to be classified as other than a partnership for United
States federal income tax purposes or (v) result in a
termination of the Company under Code Section 708, unless the
board of directors of the Company has determined that any such
termination will not have a material adverse impact on the Members,
or (vi) cause the application of the tax-exempt use property
rules of Code Sections 168(g)(l)(B) and 168(h) to the Company or
its Members.
(d) Reduction of ABRY
Commitment . The parties acknowledge that ABRY’s
acquisition of Series A Units hereunder is made in accordance with
Section l(d) of the Original Agreement and, therefore, the amount
of ABRY’s investment hereunder shall reduce the $40 million
commitment of ABRY V (and its affiliates and co-investors)
described in Section l(d) of the Original Agreement on a dollar for
dollar basis. The Company further acknowledges that, following the
transactions contemplated hereby, such $40 million commitment is
fully funded and satisfied pursuant to Section l(d) of the Original
Agreement.
2. Other
Agreements.
(a) Any certificates representing
the Series A Shares will bear the legend set forth in
Section 11.4 of the LLC Agreement.
(b) Each Investor acknowledges that
the transfer of Series A Shares is subject to the provisions of the
Securities Act, applicable state securities laws, the LLC Agreement
and the Members Agreement.
3. Definitions.
“ ABRY ” means
ABRY Partners VI, L.P., a Delaware limited partnership.
“ ABRY V ” means
ABRY Partners V, L.P., a Delaware limited partnership.
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“ Closing Date ”
means the date on which the transactions contemplated under the
Merger Agreement are consummated.
“ Code ” means
the Internal Revenue Code of 1986, as amended from time to
time.
“ LLC Agreement ”
means the Company’s Amended and Restated Limited Liability
Company Agreement to be entered into as of the Closing Date, as in
effect from time to time.
“ Member ” has
the meaning set forth in the LLC Agreement.
“ Members Agreement
” means the Amended and Restated Members Agreement, to be
entered into as of the Closing Date, by and among the Company and
the members of the Company, as in effect from time to
time.
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