INVESTOR AGREEMENT by and among EURADIUS ACQUISITION CO., TSG HOLDINGS CORP., PARTICIPATIEMAATSCHAPPIJ NEUSHOORN B.V. and PARTICIPATIEMAATSCHAPPIJ OLIFANT B.V. Dated as of May 16, 2007
Execution
Counterpart
Exhibit
10.42
by and
among
EURADIUS
ACQUISITION CO.,
TSG
HOLDINGS CORP.,
PARTICIPATIEMAATSCHAPPIJ
NEUSHOORN B.V.
and
PARTICIPATIEMAATSCHAPPIJ
OLIFANT B.V.
Dated as
of May 16, 2007
TABLE
OF CONTENTS
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Page
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ARTICLE
I RESTRICTIONS
ON TRANSFER OF SECURITIES
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1
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1.1.
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Restrictions
on Transfers of Securities
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1
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1.2.
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Legend
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3
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1.3.
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Notation
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3
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ARTICLE
II OTHER
COVENANTS
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4
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2.1.
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Redemption
of Series A Preferred Stock.
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4
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2.2.
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Corporate
Opportunity
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7
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ARTICLE
III MISCELLANEOUS
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7
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3.1.
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Amendment
and Modification
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7
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3.2.
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Successors
and Assigns
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7
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3.3.
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Separability
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7
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3.4.
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Notices
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7
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3.5.
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Governing
Law
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9
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3.6.
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Headings
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9
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3.7.
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Counterparts
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9
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3.8.
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Further
Assurances
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9
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3.9.
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Termination
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9
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3.10.
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Remedies
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9
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3.11.
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Pronouns
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9
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3.12.
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Entire
Agreement
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I
Investors and Securities
-ii-
DEFINED
TERMS
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Affiliate
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2
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Agreement
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1
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Company
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1
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Company
Change of Control
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5
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Company
Sales Event
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5
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3
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Investors
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1
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Jefferies
Associates
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2
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Jefferies
Partner
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2
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Management
Investors
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1
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Mandatory
Redemption
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3
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Mandatory
Redemption Date
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4
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Mandatory
Redemption Notice
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4
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Mandatory
Redemption Price
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3
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Net
Proceeds
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5
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Neushoorn
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1
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Olifant
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1
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Parent
Sales Event
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6
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Parent
Securities Holders Agreement
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6
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Permitted
Holders
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6
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Permitted
Transferee
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2
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Preferred
Stock
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1
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Public
Offering
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6
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Redemption
Event
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6
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Securities
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1
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Securities
Act
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2
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Securities
Act
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3
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Series
A Liquidation Preference
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6
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Special
Registration Statement
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6
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Subsidiary
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7
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Transfer
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1
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Trigger
Event
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7
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Unit
Offering
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7
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-iii-
THIS IS
AN INVESTOR AGREEMENT, dated as of May 16, 2007 (the “Agreement”), by and
among Euradius Acquisition Co., a Delaware corporation (the “Company”), TSG
Holdings Corp., a Delaware corporation (the “Parent”),
Participatiemaatschappij Neushoorn B.V., a private limited liability company
organized under the laws of the Netherlands (“Neushoorn”) and
Participatiemaatschappij Olifant B.V., a private limited liability company
organized under the laws of the Netherlands (“Olifant” and,
together with Neushoorn, the “Investors”).
Background
A. Each
Investor owns the number of shares of the Company’s Series A 8% Cumulative
Compounding Preferred Stock, par value $.001 per share (the “Series A Preferred
Stock”) set forth opposite such Investor’s name on Schedule I
hereto.
B.
The Investors and the Company wish to set forth herein certain agreements
regarding their future relationships and their rights and obligations with
respect to Series A Preferred Stock of the Company.
C.
As used herein, the term “Securities” shall
mean Series A Preferred Stock, and any securities of the Company (or
a successor to the Company) received on account of ownership of Series A
Preferred Stock.
Terms
In
consideration of the mutual covenants contained herein, and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE
I
RESTRICTIONS
ON TRANSFER OF SECURITIES
1.1. Restrictions on Transfers of
Securities. The following restrictions on Transfer (as defined
in Section 1.1(a) below) shall apply to all Securities owned by any Investor or
Permitted Transferee (as defined in Section 1.1(b) below):
(a)
No Investor or Permitted Transferee shall Transfer (other than in
connection with a redemption or purchase by the Company) any Securities unless
(i) such Transfer is to a person approved in advance in writing by Parent, and
(ii) such Transfer complies with the provisions of this Section
1.1. Any purported Transfer in violation of this Agreement shall be
null and void and of no force and effect, and the purported transferee shall
have no rights or privileges in or with respect to the Company. As
used herein, “Transfer” includes
the making of any sale, exchange, assignment, hypothecation, gift, security
interest, pledge or other encumbrance, or any contract therefor, any voting
trust or other agreement or arrangement with respect to the transfer or grant of
voting rights or any other beneficial interest in any of the Securities, the
creation of any other claim thereto or any other transfer or disposition
whatsoever, whether voluntary or involuntary, affecting the right, title,
interest or possession in or to such Securities.
Each
certificate evidencing the Securities transferred shall bear the legends set
forth in Section 1.2 hereof .
Nothing
in this Section 1.1(a) shall prevent the Transfer of Securities by an Investor
or a Permitted Transferee to one or more of its Permitted Transferees or to the
Company; provided, however, that each
such Permitted Transferee shall take such Securities subject to and be fully
bound by the terms of this Agreement applicable to it with the same effect as if
it were an Investor hereunder; and provided further, however, that (i) no
person shall be a Permitted Transferee unless such transferee executes and
delivers a joinder to this Agreement reasonably satisfactory in form and
substance to the Company which joinder states that such person agrees to be
fully bound by this Agreement as if it were an Investor hereunder, and (ii) no
Transfer shall be effected except in compliance with the registration
requirements of the Securities Act of 1933, as amended (the “Securities Act”) and
any applicable state securities laws or pursuant to an available exemption
therefrom.
(b) As
used herein, “Permitted Transferee”
shall mean:
(i)
in the case of any Investor or Permitted Transferee who is a natural
person, such person’s spouse or children or grandchildren (in each case, natural
or adopted), or any trust for the sole benefit of such person, such person’s
spouse or children or grandchildren (in each case, natural or adopted), or any
corporation, partnership or limited liability company in which the direct and
beneficial owner of all of the equity interest is such individual person or such
person’s spouse or children or grandchildren (in each case, natural or
adopted);
(ii)
in the case of any Investor or Permitted Transferee who is a
natural person, the heirs, executors, administrators or personal representatives
upon the death of such person or upon the incompetency or disability of such
person for purposes of the protection and management of such person’s
assets;
(iii) in
the case of any Investor or Permitted Transferee who is not a natural person,
(I) any corporation, partnership or other entity that is an Affiliate (as
hereinafter defined) of such Investor.
(c) As
used herein, “Affiliate” means,
with respect to any person, any person directly or indirectly controlling,
controlled by or under common control with such person.
2
1.2. Legend. Any
certificates representing Securities shall bear the following legend (in
addition to any other legend required under applicable law):
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF WITHOUT
REGISTRATION UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS
OR THE DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY SATISFACTORY
TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO THE TERMS AND
CONDITIONS OF AN INVESTOR AGREEMENT BY AND AMONG THE COMPANY AND THE HOLDERS
SPECIFIED THEREIN, AS AMENDED FROM TIME TO TIME (THE “INVESTOR AGREEMENT”), A
COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE
COMPANY. THE SALE, TRANSFER, ASSIGNMENT OR OTHER DISPOSITION OF THE
SECURITIES IS SUBJECT TO THE TERMS OF SUCH AGREEMENT AND THE SECURITIES ARE
TRANSFERABLE OR OTHERWISE DISPOSABLE ONLY UPON PROOF OF COMPLIANCE
THEREWITH. hidden
text do not remove
1.3. Notation. A
notation will be made in the appropriate transfer records of the Company with
respect to the restrictions on transfer of the Securities referred to in this
Agreement.
ARTICLE
II
OTHER
COVENANTS
2.1. Redemption of Series A
Preferred Stock.
(a) To
the extent it is lawfully able to do so, subject to Section 2.1(d) and 2.1(e)
below, in the event of the occurrence of a Trigger Event, the Company shall
redeem in accordance with this Article II the number of shares of Series A
Preferred Stock calculated in accordance with Section 2.1(d) from the Investors
(a “Mandatory
Redemption”) at a redemption price per share (the “Mandatory Redemption
Price”) equal to the Series A Liquidation Preference for such share as of
the Mandatory Redemption Date (as defined below) specified in the Mandatory
Redemption Notice referred to below. Notwithstanding the foregoing,
the Company shall not effect any Mandatory Redemption in the event holders of a
majority of the outstanding shares of Series A Preferred Stock have delivered a
notice to the Company prior to the Mandatory Redemption Date (as defined below)
objecting to such Mandatory Redemption.
3
(b) Mandatory Redemption
Date. The Mandatory Redemption Date shall be a date selected
by the Company which is no later than sixty (60) days after the occurrence of
the applicable Trigger Event (the “Mandatory Redemption
Date”).
(c) Procedure. At
least ten (10) days prior to the Mandatory Redemption Date, written notice shall
be mailed, postage prepaid, to each holder of record of shares of Series A
Preferred Stock to be redeemed, at such holder’s post office address last shown
on the records of the Company, notifying such holder of the redemption of such
shares to be redeemed at that time, specifying the Mandatory Redemption Date,
the Mandatory Redemption Price, and calling upon such holder to surrender to the
Company, in the manner and at the place designated, such holder’s certificate or
certificates representing the shares to be redeemed (such notice is hereinafter
referred to as the “Mandatory Redemption
Notice”). On or after the Mandatory Redemption Date, each
holder of shares of Series A Preferred Stock to be redeemed shall surrender such
holder’s certificate or certificates representing shares to the Company, in the
manner and at the place designated in the Mandatory Redemption Notice, and
thereupon the Mandatory Redemption Price of such shares shall be payable to the
order of the person whose name appears on such certificate or certificates as
the owner of such shares and each surrendered certificate shall be
canceled. In the event less than all the shares represented by any
such certificate are redeemed, a new certificate shall be issued representing
the unredeemed shares. From and after the Mandatory Redemption Date,
unless there shall have been a default in payment of the Mandatory Redemption
Price, all rights of the holders of shares of Series A Preferred Stock
designated for redemption in the Mandatory Redemption Notice as holders of
shares of Series A Preferred Stock of the Company (except the right to receive
the Mandatory Redemption Price without interest upon surrender of their
certificate or certificates) shall cease with respect to such shares, and such
shares shall not subsequently be transferred on the books of the Company or be
deemed to be outstanding for any purpose whatsoever.
(d) Shares to be
Redeemed. Upon a Trigger Event which is a Redemption Event,
the Company shall redeem that portion of the outstanding shares of Series A
Preferred Stock equal to a fraction, the numerator of which is equal to the
amount paid by the Parent to redeem shares of preferred stock of Parent in
connection with the applicable Redemption Event, and the denominator of which is
equal to the amount necessary to redeem in full all of the outstanding shares of
preferred stock of Parent immediately prior to such Redemption
Event. Upon a Trigger Event which is a Company Sales Event, the
Company shall redeem the number of shares of Series A Preferred Stock calculated
by dividing the Net Proceeds by the Mandatory Redemption Price (up to the
maximum number of shares of Series A Preferred Stock which are
outstanding). Upon a Trigger Event which is a Company Change of
Control, the Company shall redeem all of the outstanding shares of Series A
Preferred Stock. In the event less than all of the shares of Series A
Preferred Stock are to be redeemed, such shares shall be redeemed
ratably among all holders of such shares.
4
(e) Insufficient
Funds. If the funds of the Company legally available for
redemption of shares of Series A Preferred Stock on any Mandatory Redemption
Date are insufficient to redeem the total number of shares of Series A Preferred
Stock to be redeemed on such date, those funds that are legally available shall
be used to redeem the maximum number of shares of Series A Preferred Stock,
ratably among the holders of such shares to be redeemed. At any time
thereafter when additional funds of the Company are legally available for
redemption of shares of Series A Preferred Stock, such funds shall immediately
be used to redeem the balance of the shares which the Company has become
obligated to redeem but which it has not redeemed, at a price per share equal to
the Mandatory Redemption Price (as previously determined), plus accrued
dividends at a rate per annum
equal to 8.0% to the date of actual
redemption. Notwithstanding the foregoing, (i) in the case
of a Trigger Event which is a Redemption Event, if the Company has insufficient
funds to redeem the total number of shares of Series A Preferred Stock required
by Section 2.1(a) above to be redeemed on such date, Parent shall purchase, or
contribute funds to the Company to enable the Company to redeem, the Series A
Preferred Stock required to be redeemed on such date from the holders of such
shares and (ii) in the case of a Trigger Event which is a Company Change of
Control, if the Company has insufficient funds to redeem the total number of
shares of Series A Preferred Stock required by Section 2.1(a) above to be
redeemed on such date, Parent shall purchase, or contribute funds to the Company
to enable the Company to redeem, the number of shares of Series A Preferred
Stock calculated by dividing the Net Proceeds by the Mandatory Redemption Price
(up to the maximum number of shares of Series A Preferred Stock which are
outstanding).
(f) Certain
Definitions. The terms defined below shall have the following
meanings when used in this Article II:
(i)
“Company Change of
Control” means any one or a series of related transactions in which the
Parent fail to beneficially own, directly or indirectly, or have the power to
direct the voting of, at least 50.1% of the voting equity of the Company,
measured by voting power rather than number of shares or interests.
(ii)
“Company
Sales Event” means the sale of any Subsidiary or division of the Company
that generated in the most recent prior fiscal year more than 50% of the
consolidated gross revenue of the Company and its Subsidiaries.
(iii) “Net Proceeds” means
(1) in the case of a Company Sales Event, the proceeds, net of (A) commissions
and other transaction costs, fees and expenses attributable to such transaction
and payable in connection therewith, (B) transfer taxes, (C) amounts payable to
holders of liens, if any, (D) an appropriate reserve for income taxes in
accordance with generally accepted accounting principles in connection
therewith, and (E) amounts provided as a reserve, in accordance with the good
faith judgment of the board of directors of the Company, against (x) any
liabilities under any indemnification obligations associated with such sale or
(y) any other liabilities retained by the Company or Subsidiary associated with
the properties sold in such sale and (2) in the case of a Company Change of
Control, the proceeds, net of commissions and other transaction costs, fees and
expenses attributable to such transaction and payable in connection
therewith.
(iv) “Parent Change of
Control” means any one or a series of related transactions in which the
Permitted Holders fail to beneficially own, directly or indirectly, or have the
power to direct the voting of, at least 50.1% of the voting equity of the
Parent, measured by voting power rather than number of shares or
interests.
5
(v)
“Parent Sales
Event” means the sale of any subsidiary or division of the
Parent (other than the Company and its subsidiaries) that generated in the most
recent prior fiscal year more than 50% of the consolidated gross revenue of the
Parent and its Subsidiaries (excluding the Company and its
Subsidiaries).
(vi) “Parent Securities Holders
Agreement” means that certain Amended and Restated Securities Holders
Agreement dated as of the date hereof among the Parent and the investors
signatory thereto.
(vii) “Public Offering”
means a successfully completed firm commitment underwritten public offering
pursuant to an effective registration statement under the Securities Act (other
than a Special Registration Statement) in respect of the offer and sale of
shares of common stock of the Parent resulting in aggregate net proceeds to the
Parent and any stockholder selling shares of common stock of the Parent in such
offering of not less than $50,000,000.
(viii) “Permitted
Holders” means The Sheridan Group Holdings (BRS), LLC, The
Sheridan Group Holdings (Jefferies), LLC and their respective Permitted
Transferees (as defined in the Parent Securities Holders
Agreement).
(ix) “Redemption Event”
means the redemption of preferred stock of the Parent including, without
limitation, as a result of a Public Offering, a Parent Change of Control or a
Parent Sales Event, but specifically excluding redemptions in connection with
the repurchase of preferred stock from departing employees or directors pursuant
to Section 4.3 of the Parent Securities Holders Agreement.
(x)
“Series A
Liquidation Preference” means the Liquidation Preference with respect to
the Series A Preferred Stock set forth in the Company’s certificate of
incorporation.
(xi)
“Special
Registration Statement” means (i) a registration statement on Form S-8 or
S-4 or any similar or successor form or any other registration statement
relating to an exchange offer or an offering of securities solely to the Parent
and its Subsidiaries’ employees or security holders or to security holders of a
corporation or other entity being acquired by, or merged with, the Parent or
(ii) a registration statement registering a Unit Offering;
(xii) “Subsidiary” means a
corporation, partnership, limited liability or other business entity with
respect to which the Parent (or another Subsidiary) owns 50% or more of the
total combined voting power of all classes of stock (or other voting
interests).
6
(xiii) “Trigger Event” means
a Redemption Event, a Company Change of Control or a Company Sales
Event.
(xiv) “Unit Offering” means
a public offering of a combination of debt and equity securities of the Parent
in which (i) not more than 10% of the gross proceeds received from the sale of
such securities is attributed to such equity securities, and (ii) after giving
effect to such offering, the Parent does not have a class of equity securities
required to be registered under the Exchange Act.
2.2. Corporate
Opportunity. To the fullest extent permitted by any applicable
law, the doctrine of corporate opportunity, or any other analogous doctrine,
shall not apply with respect to the Parent or any Parent
Affiliates.
ARTICLE
III
MISCELLANEOUS
3.1. Amendment and
Modification. This Agreement may be amended or modified, or
any provision hereof may be waived, provided that such amendment, modification
or waiver is set forth in a writing executed by each of the parties
hereto. No course of dealing between or among any persons having any
interest in this Agreement will be deemed effective to modify, amend or
discharge any part of this Agreement or any rights or obligations of any person
under or by reason of this Agreement.
3.2. Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the successors and permitted assigns and
executors, administrators and heirs of each party hereto. Except as
contemplated hereby in connection with Transfers of Securities, this Agreement,
and any rights or obligations existing hereunder, may not be assigned or
otherwise transferred by any party without the prior written consent of the
other parties hereto.
3.3. Separability. In
the event that any provision of this Agreement or the application of any
provision hereof is declared to be illegal, invalid or otherwise unenforceable
by a court of competent jurisdiction, the remaining provisions shall remain in
full force and effect unless deletion of such provision causes this Agreement to
become materially adverse to any party, in which event the parties shall use
reasonable efforts to arrive at an accommodation which best preserves for the
parties the benefits and obligations of the offending provision.
3.4. Notices. All
notices provided for or permitted hereunder shall be made in writing by
hand-delivery, registered or certified first-class mail, fax or reputable
courier guaranteeing overnight delivery to the other party at the following
addresses (or at such other address as shall be given in writing by any party to
the others):
7
If to the
Company, to:
Euradius
Acquisition Co.
c/o TSG
Holdings Corp.
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Fax: (▇▇▇)
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with a
required copy to:
Dechert
LLP
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Centre
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Fax: (▇▇▇)
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If to the
Parent, to:
TSG
Holdings Corp.
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Fax: (▇▇▇)
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with a
required copy to:
Dechert
LLP
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Centre
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8
If to any
of the Investors, to:
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Meppel
The
Netherlands
Attention: ▇▇▇▇
Ringsma
with a
required copy to:
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& Whitney LLP
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All such
notices shall be deemed to have been duly given: when delivered by hand, if
personally delivered; four business days after being deposited in the mail,
postage prepaid, if mailed; when confirmation of transmission is received, if
faxed during normal business hours (or, if not faxed during normal business
hours, the next business day after confirmation of transmission); and on the
next business day, if timely delivered to a reputable courier guaranteeing
overnight delivery.
3.5. Governing
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, without giving
effect to principles of conflicts of law.
3.6. Headings. The
headings preceding the text of the sections and subsections of this Agreement
are for convenience of reference only and shall not constitute a part of this
Agreement, nor shall they affect its meaning, construction or
effect.
3.7. Counterparts. This
Agreement may be executed in two or more counterparts and by the parties hereto
in separate counterparts, each of which when so executed shall be deemed to be
an original, and all of which taken together shall constitute one and the same
instrument.
3.8. Further
Assurances. Each party shall cooperate and take such action as
may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
3.9. Termination. This
Agreement shall terminate on the written agreement of the Investors who are
parties hereto or when the Investors cease to own any
Securities.
3.10. Remedies. In
the event of a breach or a threatened breach by any party to this Agreement of
its obligations under this Agreement, any party injured or to be injured by such
breach, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The parties agree that the provisions of
this Agreement shall be specifically enforceable, it being agreed by the parties
that the remedy at law, including monetary damages, for breach of such provision
will be inadequate compensation for any loss and that any defense in any action
for specific performance that a remedy at law would be adequate is
waived.
9
3.11. Pronouns. Whenever
the context may require, any pronouns used herein shall be deemed also to
include the corresponding neuter, masculine or feminine forms.
3.12. Entire
Agreement. This Agreement sets forth the entire agreement and
understanding among the parties and supersedes all prior agreements and
understandings, written or oral, relating to the subject matter of this
Agreement.
10
IN
WITNESS WHEREOF, the parties hereto have executed this Investor Agreement the
day and year first above written.
|
EURADIUS
ACQUISITION CO.
|
||
|
By:
|
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Title:
President
|
||
|
TSG
HOLDINGS CORP.
|
||
|
By:
|
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Title:
President
|
||
|
PARTICIPATIEMAATSCHAPPIJ
NEUSHOORN B.V.
|
||
|
By:
|
/s/ ▇▇▇▇▇▇
▇▇▇
|
|
|
Name:
▇▇▇▇▇▇ ▇▇▇
|
||
|
Title:
Managing Director
|
||
|
PARTICIPATIEMAATSCHAPPIJ
OLIFANT B.V.
|
||
|
By:
|
/s/ Rombout
Eikelenboom
|
|
|
Name:
Rombout Eikelenboom
|
||
|
Title:
Managing Director
|
||
11
Investors and
Securities
|
Investor
|
Number of Series A
Preferred Stock
|
|||
|
Particioatiemaatschappij
Nueshoorn B.V.
|
6545.70 | |||
|
Particioatiemaatschappij
Olifant B.V.
|
2454.30 | |||
|
Total
|
9000.00 | |||