EXHIBIT 99.10
EXECUTION COPY
SETTLEMENT AGREEMENT
This Settlement Agreement, dated this 24th day of April, 2009 (this
"AGREEMENT"), by and among Springbok Capital Management, LLC, Springbok Capital
Onshore, LLC, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Soundpost Partners, LP, ▇▇▇▇▇ ▇▇▇▇▇▇, Lyrical
Partners, L.P., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the
foregoing individuals and entities being collectively referred to herein as the
"SPRINGBOK GROUP"), and MCG Capital Corporation, a Delaware corporation (the
"COMPANY").
WHEREAS, the Springbok Group (i) has nominated three individuals for
election (the "CONTESTED ELECTION") to the Company's Board of Directors (the
"BOARD") at the 2009 annual meeting of stockholders of the Company (the "2009
ANNUAL MEETING") and (ii) has taken certain actions in furtherance thereof,
including, but not limited to, requesting to inspect certain of the Company's
books and records pursuant to Section 220 of the Delaware General Corporation
Law (such letter and related requests, the "DEMAND"); and
WHEREAS, the Company has accepted ▇▇. ▇▇▇▇▇▇▇▇▇'▇ and Springbok
Capital Onshore, LLC's nominations of ▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇
as candidates for election to the Board; and
WHEREAS, Springbok Capital Onshore, LLC; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇ ▇▇▇▇;
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ have filed an action against ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, A. ▇▇▇▇ ▇▇▇▇▇, III, ▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III, ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇, ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, and
MCG in the Court of Chancery of the State of Delaware on February 11, 2009,
captioned Springbok Capital Onshore, LLC, et al. ▇. ▇▇▇▇▇▇, et al., Case No.
4358-VCL (the "Delaware Action"), seeking (a) a declaratory judgment that MCG's
directors had breached their fiduciary duties in adopting certain of MCG's
bylaws, that those bylaws were invalid, and that ▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇, and
▇▇. ▇▇▇▇▇▇▇ had been properly nominated to stand for election at the 2009 Annual
Meeting, (b) injunctive relief relating thereto, and (c) costs and expenses,
including attorneys' fees; and
WHEREAS, the Company has filed an action against Springbok Capital
Management, LLC; Springbok Capital Onshore, LLC; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇; Soundpost
Partners, LP; ▇▇▇▇▇ ▇▇▇▇▇▇, Lyrical Partners, LP; and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in the
United States District Court for the Southern District of New York on March 4,
2009, captioned MCG CAPITAL CORP. V. SPRINGBOK CAPITAL MANAGEMENT, LLC, ET AL.,
Case No. 09-CV-2003 (the "New York Action"), which alleged that the defendants'
Schedule 13D filings (the "13D Filings") were inadequate and sought injunctive
relief; and
WHEREAS, the Company and the members of the Springbok Group have
determined that the interests of the Company and its stockholders would be best
served at this time by, among other things, avoiding the Contested Election and
the substantial expense and disruption that may result therefrom.
NOW, THEREFORE, in consideration of the foregoing premises and the
respective representations, warranties and agreements hereinafter set forth,
and, intending to be legally bound hereby, the parties hereby agree as follows:
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Section 1. BOARD APPOINTMENT; BOARD SIZE.
(a) The Board shall (i) appoint ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the "SPRINGBOK
NOMINEE") to the Board, effective April 30, 2009, to serve as a Class II
director, (ii) nominate the Springbok Nominee at the 2009 Annual Meeting for
re-election as a Class II director with a term expiring at the Company's 2012
Annual Meeting of Stockholders (the "VACANCY DATE"), (iii) recommend that the
stockholders of the Company at the 2009 Annual Meeting vote to elect the
Springbok Nominee as a director, and (iv) use its reasonable best efforts (which
shall include the solicitation of proxies) to ensure that the Springbok Nominee
is elected at the 2009 Annual Meeting. ▇▇. ▇▇▇▇▇▇▇▇▇ will not be required to
provide a description of any compensation or other material monetary agreements,
arrangements or understandings, as described in Article II, Section 11 of the
Company's Amended and Restated Bylaws.
(b) If the Springbok Nominee is not elected to the Board at the 2009
Annual Meeting, Springbok Capital Management, LLC, Springbok Capital Onshore,
LLC, Soundpost Partners, LP, and Lyrical Partners, L.P. (the "SPRINGBOK CONSENT
GROUP") shall thereafter be entitled to nominate an individual to serve on the
Board, subject to a determination by the Board's Nominating and Corporate
Governance Committee that such individual is qualified, which agreement may not
be unreasonably withheld, and thereafter, the Board will promptly appoint such
individual to the Board to serve until the Vacancy Date.
(c) The size of the Board shall be decreased to eight (8) members as
promptly as practicable following the appointment of the Springbok Nominee but,
in any event, no later than August 31, 2009. The composition of the Board shall
consist of six (6) independent directors and two (2) management directors until
the Vacancy Date. The aforementioned size and composition of the Board may be
changed prior to the Vacancy Date, only with the express written consent of the
Springbok Consent Group, which consent shall be provided in the Springbok
Consent Group's sole discretion; PROVIDED that the size of the Board may be
increased in connection with a merger, share exchange or other business
combination in which the Company is the surviving entity and which is approved
by the stockholders of the Company. This Section 1(c) shall terminate in its
entirety upon the occurrence of a Change of Control (as defined below) of the
Company.
Section 2. CONTESTED ELECTION; VOTING; SPRINGBOK GROUP SCHEDULE 13D;
PROXY STATEMENT AND DEMAND WITHDRAWAL; NOMINEE INFORMATION.
(a) The Springbok Group hereby withdraws the notice submitted to the
Company on January 16, 2009 in which it nominated ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ as nominees for election at the 2009 Annual Meeting,
which withdrawal shall be irrevocable and effective as of the date that the
Springbok Nominee is nominated and recommended by the Company for re-election as
a director as described above. The Springbok Group shall promptly cease, and
shall cause all of their affiliates (as defined in Rule 12b-2 of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT")) ("AFFILIATES") to cease,
any and all efforts with respect to the Contested Election.
(b) The Springbok Group and their Affiliates shall (i) vote all shares
of the Voting Securities (as defined below) which they beneficially own (as
determined by Rule 13d-3 of the Exchange Act) as of the record date in favor of,
and will support, the election of each of the Company's director nominees at
each meeting of stockholders of the Company to elect
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directors of the Company held on or before the Standstill Date (as defined
below), (ii) vote at the 2009 Annual Meeting all shares of Voting Securities
which they beneficially own as of the record date, with respect to the proposals
described in the Company's preliminary proxy materials filed on April 9, 2009,
which are to be submitted to the Company's stockholders at the 2009 Annual
Meeting, in accordance with the Board's recommendation, and (iii) will not
support or participate in any "withhold the vote" or similar campaign with
respect to any meeting to elect directors of the Company held on or before the
Standstill Date, and, in the event of any such campaign, will vote their shares
in accordance with this paragraph.
(c) The Springbok Group shall promptly file an amendment to its
Schedule 13D with respect to the Company (the "SCHEDULE 13D") reporting the
entry into this Agreement, amending applicable items to conform to its
obligations hereunder and appending this Agreement and the Press Release (as
hereinafter defined in Section 6) as exhibits thereto.
(d) The Springbok Group hereby irrevocably withdraws its Demand, and
shall promptly return to the Company all materials and summaries or duplicates
thereof that have been delivered to the Springbok Group or its Representatives
(as defined in Section 3(c) below) prior to the date hereof in response to the
Demand.
(e) The Springbok Group shall promptly provide to the Company any
information reasonably requested by the Company for inclusion in any filings
with the U.S. Securities and Exchange Commission.
Section 3. ADDITIONAL AGREEMENTS.
(a) REPLACEMENT NOMINEE. If, on or prior to the Vacancy Date, ▇▇.
▇▇▇▇▇▇▇▇▇ becomes unable to serve as a director of the Company, the Springbok
Consent Group shall be entitled to nominate an individual to serve on the Board,
subject to a determination by the Board's Nominating & Corporate Governance
Committee that such individual is qualified, which agreement may not be
unreasonably withheld (such individual or any replacement nominee selected
pursuant to Section 1(b) or Section 3(a), a "REPLACEMENT NOMINEE") and the Board
shall promptly appoint such nominee to the Board to serve for the remainder of
▇▇. ▇▇▇▇▇▇▇▇▇'▇ term. The Replacement Nominee will not be required to provide a
description of any compensation or other material monetary agreements,
arrangements or understandings, as described in Article II, Section 11 of the
Company's Amended and Restated Bylaws.
(b) COMMITTEE PARTICIPATION. Subject to applicable law and the NASDAQ
Global Select Market listing standards, the Board shall, effective April 30,
2009, appoint ▇▇. ▇▇▇▇▇▇▇▇▇ (or the Replacement Nominee, if applicable), at his
request, to each of the Nominating and Corporate Governance, Audit, Compensation
and Investment and Valuation Committees.
(c) STANDSTILL AGREEMENT. Each member of the Springbok Group will not,
and will cause each of its respective Affiliates, directors, officers,
employees, agents, consultants, advisors or other representatives, including
legal counsel, accountants and financial advisors (collectively,
"REPRESENTATIVES") not to, do any of the following, directly or indirectly, for
a period commencing on the date hereof and ending on the day after the date of
the 2010 Annual Meeting of Stockholders, including any adjournments or
postponements thereof (the "STANDSTILL DATE"), unless they have obtained the
prior written consent of the Board:
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(i) (A) engage, or in any way participate, directly or
indirectly, in any "solicitation" (as such term is defined in Rule 14a-1(l)
promulgated by the SEC under the Exchange Act) of proxies or consents in
any "election contest" with respect to the Company's directors (regardless
of whether it involves the election or removal of directors of the
Company), (B) seek to advise, encourage or influence any Person with
respect to the voting of any voting securities of the Company in any
"election contest" with respect to the Company's directors (regardless of
whether it involves the election, removal of or withholding votes for
directors of the Company), (C) initiate, propose or otherwise "solicit" (as
such term is defined in Rule 14a-1(l) promulgated by the SEC under the
Exchange Act) stockholders of the Company for the approval of stockholder
proposals in connection with the election or removal of or withholding
votes for directors of the Company, or (D) induce or attempt to induce any
other Person to initiate any such shareholder proposal;
(ii) form, join or in any way participate in a partnership,
syndicate, or other group, including without limitation any "group" as
defined under Section 13(d)(3) of the Exchange Act, with respect to any
voting securities of the Company in connection with any "election contest"
with respect to the Company's directors (regardless of whether it involves
the election or removal of or withholding votes for directors of the
Company), other than a "group" that only includes members who are currently
identified as Reporting Persons in the Springbok Group's Schedule 13D
filings (or Affiliates thereof or successors thereto) or parties to this
Agreement;
(iii) seek, alone or in concert with others, (A) to call a
meeting of stockholders or solicit consents from stockholders or conduct a
nonbinding referendum of stockholders, (B) to obtain representation on the
Board except as otherwise expressly permitted in this Agreement, (C) to
effect the removal of any member of the Board (PROVIDED that this shall not
pertain to any members of the Springbok Group who are directors of the
Company), (D) to make a stockholder proposal at any meeting of the
stockholders of the Company except as otherwise expressly permitted in this
Agreement, or (E) to amend any provision of the Company's Restated
Certificate of Incorporation or the Company's Amended and Restated Bylaws;
(iv) sell, offer or agree to sell, all or substantially all,
directly or indirectly, through swap or hedging transactions or otherwise,
any voting rights decoupled from the underlying Voting Securities held by
the Springbok Group to any Third Party (as defined below);
(v) other than ▇▇. ▇▇▇▇▇▇▇▇▇, the Replacement Nominee or any
other member of the Springbok Group who is a director of the Company, if
applicable, in their capacity as a director, effect or seek to effect
(including, without limitation, by entering into any discussions,
negotiations, agreements or understandings, whether or not legally
enforceable, with any Person), offer or propose to effect, cause or
participate in, or in any way assist or facilitate any other Person to
effect or seek, offer or propose to effect or participate in, (i) any
acquisition of more than ten percent (10%) of any securities, or any
material assets or businesses, of the Company or any of its subsidiaries or
portfolio companies, (ii) any tender offer or exchange offer, merger,
acquisition, share exchange or other business combination involving more
than ten percent (10%) of any of the Voting Securities or any of the
material assets or businesses of the Company or any of its
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subsidiaries or portfolio companies, or (iii) any recapitalization,
restructuring, liquidation, dissolution or other extraordinary transaction
with respect to the Company or any of its subsidiaries or portfolio
companies or any material portion of its or their businesses;
(vi) enter into any discussions, negotiations, agreements or
understandings with any Third Party with respect to the foregoing, or
advise, assist, encourage or seek to persuade any Third Party to take any
action with respect to any of the foregoing, or otherwise take or cause any
action inconsistent with any of the foregoing; or
(vii) request, directly or indirectly, any amendment or waiver of
any provision of this Section 3(c) (including this clause (vii) by the
Company or any of its Representatives).
(d) EXPENSES. Within five (5) business days following the dismissal of
the Delaware Action, the Company agrees to reimburse the Springbok Group the sum
of $550,000. If any party to this Agreement brings an action or other legal
proceeding with respect to this Agreement against another party to this
Agreement, the party that is found to have been in violation of this Agreement
shall be responsible for all fees and expenses (including attorney's fees, costs
and expenses). Except as otherwise provided in this clause (d), all attorneys'
fees, costs and expenses incurred by each of the parties hereto will be borne by
such party.
(e) RELEASE; WAIVER. Promptly after the execution of this Agreement,
the Company shall file a voluntary dismissal with prejudice of the New York
Action and shall not, nor shall any director, officer or employee of the
Company, thereafter ▇▇▇ the Springbok Group or any member thereof, with respect
to any matter relating to the Contested Election, the 2009 Annual Meeting, the
Demand or the 13D Filings; and the Springbok Group shall cause Springbok Capital
Onshore, LLC; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇ ▇▇▇▇; and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, to file a
voluntary dismissal with prejudice of the Delaware Action and shall not, nor
shall any member of the Springbok Group, thereafter ▇▇▇ the Company with respect
to any matter relating to the Contested Election, the 2009 Annual Meeting, the
Demand or the 13D Filings. On behalf of themselves and each of their respective
directors, officers, managers, members, and employees, the Company and the
Springbok Group hereby release and forever discharge each other, and each of
their respective successors, assigns, parent and subsidiary companies, joint
ventures, partnerships, owners, directors, officers, partners, principals,
managers, members, employees, attorneys, consultants, financial advisors,
shareholders, insurers and agents (collectively, "AFFILIATED PERSONS"), from all
claims and demands, rights and causes of action of any kind arising out of or
relating to the Contested Election, the 2009 Annual Meeting, the Demand, the 13D
Filings, the contemplated proxy contest in connection with the 2009 Annual
Meeting, the Delaware and New York Actions and all other actions, and/or any and
all claims of any kind, whether asserted or unasserted, known or unknown, that
have been, could have been, or may ever be raised in any court, tribunal or
proceeding, by or against the Company or the Springbok Group or any of their
respective Affiliated Persons, including without limitation any claim for
attorneys fees or expenses, from the beginning of time through the date of this
release. Notwithstanding anything to the contrary in this paragraph, the Company
and the Springbok Group do not release any obligations or claims related to the
enforcement of the terms and provisions of this Agreement.
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(f) TERMINATION. Subsections (a) and (c) of this Section 3 shall
terminate upon the occurrence of a Change of Control (as defined below) of the
Company.
Section 4. REPRESENTATIONS AND WARRANTIES.
(a) The members of the Springbok Group represent and warrant, each as
to themselves, as follows:
(i) Each member of the Springbok Group has the power and
authority to execute, deliver and carry out the terms and provisions of
this Agreement and to consummate the transactions contemplated hereby.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by each member of the Springbok Group, constitutes a
valid and binding obligation and agreement of each such member and is
enforceable against each such member in accordance with its terms.
(iii) The members of the Springbok Group, together with their
Affiliates, beneficially own, directly or indirectly, an aggregate of
7,544,600 shares of Common Stock as set forth by beneficial owner and
amount on EXHIBIT A hereto and such shares of Common Stock constitute all
of the Voting Securities of the Company beneficially owned by the members
of the Springbok Group and their Affiliates.
(iv) ▇▇. ▇▇▇▇▇▇▇▇▇ (or the Replacement Nominee, if applicable)
(A) is "independent" under the NASDAQ Stock Market, Inc. listing standards
and Rule 10A-3 of the Exchange Act and (B) is not an "interested person" as
defined in the Investment Company Act of 1940, as amended.
(v) The information provided with respect to ▇▇. ▇▇▇▇▇▇▇▇▇ (or
the Replacement Nominee, if applicable) for inclusion in any filings by the
Company with the U.S. Securities and Exchange Commission (A) shall not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) shall not contain any statement
which, at the time and in the light of the circumstances under which such
statement is made, will be false or misleading with respect to any material
fact, and (C) shall not omit to state any material fact necessary in order
to make the statements therein not false or misleading or necessary to
correct any statement in any earlier filing with the U.S. Securities and
Exchange Commission.
(vi) To the knowledge of the members of the Springbok Group, none
of their Associates (as defined in Rule 12b-2) of the Exchange Act has been
or is engaged in any efforts with respect to the Contested Election.
(b) The Company hereby represents and warrants as follows:
(i) The Company has the power and authority to execute, deliver
and carry out the terms and provisions of this Agreement and to consummate
the transactions contemplated hereby.
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(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Company, constitutes a valid and binding
obligation and agreement of the Company and is enforceable against the
Company in accordance with its terms.
Section 5. SPECIFIC PERFORMANCE. Each of the members of the Springbok
Group, on the one hand, and the Company, on the other hand, acknowledges and
agrees that irreparable injury to the other party hereto would occur in the
event any of the provisions of this Agreement were not performed in accordance
with its specific terms or were otherwise breached, and that such injury would
not be adequately compensable in damages. It is accordingly agreed that the
members of the Springbok Group, on the one hand, and the Company, on the other
hand, shall each be entitled to specific enforcement of, and injunctive relief
to prevent any violation of, the terms hereof and the other party hereto will
not take any action, directly or indirectly, in opposition to the party seeking
relief on the grounds that any other remedy or relief is available at law or in
equity, and each party further agrees to waive any requirement for the security
or posting of any bond in connection with such remedy.
Section 6. PRESS RELEASE AND OTHER PUBLIC DISCLOSURES. Immediately
following the execution and delivery of this Agreement, the Company and the
Springbok Group shall issue the joint press release attached hereto as EXHIBIT B
(the "PRESS RELEASE"). None of the parties hereto will make any public
statements (including in any filing with the SEC or any other regulatory or
governmental agency, including any stock exchange) that are inconsistent with,
or otherwise contrary to, the statements in the Press Release issued pursuant to
this Section 6 or the terms of this Agreement.
Section 7. CERTAIN DEFINITIONS. As used in this Agreement, (a) the
term "COMMON STOCK" shall mean the common stock of the Company, par value $0.01
per share; (b) the term "PERSON" shall mean any individual, partnership,
corporation, limited liability company, or other entity, group, syndicate,
trust, government or agency thereof, or any other association or entity; (c) the
term "THIRD PARTY" shall mean any person or entity that is not a party to this
Agreement, a member of the Board, a director or officer of the Company, or legal
counsel to any party to this Agreement; (d) the term "VOTING SECURITIES" shall
mean the Common Stock and any other securities of the Company entitled to vote
in the election of directors, or securities convertible into, or exercisable or
exchangeable for Common Stock or other securities, whether or not subject to the
passage of time or other contingencies (including any Derivative Instruments (as
defined in the Company's Amended and Restated Bylaws)); (e) the term "CHANGE OF
CONTROL" shall mean the occurrence of any of the following: (1) any Person
acquires beneficial ownership of shares of the Company having fifty percent or
more of the total number of votes that may be cast for the election of directors
of the Company; or (2) the Company (i) consolidates with or merges into any
other corporation or any other entity merges into the Company and (ii) the
holders of the Company's common stock immediately before such transaction own,
directly or indirectly, less than fifty percent of the combined voting power of
the outstanding voting securities of the entity resulting from such transaction;
AND (f) the term "BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in New York
City are generally authorized or obligated by law or executive order to close.
Section 8. NO WAIVER. Any waiver by any party of a breach of any
provision of this Agreement shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to
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insist upon strict adherence to any term of this Agreement on one or more
occasion shall not be considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other term of
this Agreement.
Section 9. SUCCESSORS AND ASSIGNS. All the terms and provisions of
this Agreement shall inure to the benefit of, and shall be enforceable by, the
successors and assigns of each of the parties hereto.
Section 10. ENTIRE AGREEMENT; AMENDMENTS; INTERPRETATION AND
CONSTRUCTION. This Agreement contains the entire understanding of the parties
with respect to its subject matter. There are no restrictions, agreements,
promises, representations, warranties, covenants or other undertakings other
than those expressly set forth in this Agreement. This Agreement may be amended
only by a written instrument duly executed by the Company and the Springbok
Consent Group or their respective successors or assigns. Each of the parties
hereto acknowledges that it has been represented by counsel of its choice
throughout all negotiations that have preceded the execution of this Agreement,
and that it has executed the same with the advice of said counsel. Each party
and its counsel cooperated and participated in the drafting and preparation of
this Agreement and the documents referred to herein, and any and all drafts
relating thereto exchanged among the parties shall be deemed the work product of
all of the parties and may not be construed against any party by reason of its
drafting or preparation. Accordingly, any rule of law or any legal decision that
would require interpretation of any ambiguities in this Agreement against any
party that drafted or prepared it is of no application and is hereby expressly
waived by each of the parties hereto, and any controversy over interpretations
of this Agreement shall be decided without regard to events of drafting or
preparation.
Section 11. HEADINGS. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 12. NOTICES. All notices, demands and other communications to
be given or delivered under, or by reason of, the provisions of this Agreement
shall be in writing and shall be deemed to have been given (a) when delivered by
hand (with written confirmation of receipt), (b) upon sending (on the date sent
if a Business Day, or if not sent on a Business Day, the first Business Day
thereafter) if sent by facsimile, with electronic confirmation of sending,
PROVIDED, HOWEVER, that a copy is sent on the same day by registered mail,
return receipt requested, in each case to the appropriate mailing and facsimile
addresses set forth below, (c) one (1) day after being sent by a nationally
recognized overnight carrier to the addresses set forth below or (d) when
actually delivered if sent by any other method that results in delivery (with
written confirmation of receipt):
If to the Company:
MCG Capital Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
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Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Springbok Group (or any member thereof):
Springbok Capital Management, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Soundpost Partners, LP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lyrical Partners, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
in each case, or to such other address as the Person to whom notice is given may
have previously furnished to the others in writing in the manner set forth
above.
Section 13. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
without reference to the conflict of laws principles thereof.
Section 14. COUNTERPARTS. This Agreement may be executed in
counterparts and by facsimile, each of which shall be an original, but all of
which together shall constitute one and the same Agreement.
Section 15. SEVERABILITY. If any provision of this Agreement or the
application thereof to any Person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to Persons or
circumstances other than those as to which it has been held invalid or
-9-
unenforceable, will remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such an occurrence, the parties shall
negotiate in an effort to agree upon a suitable and equitable substitute
provision to effect the original intent of the parties.
Section 16. NO THIRD PARTY BENEFICIARIES. This Agreement is solely for
the benefit of the parties hereto and is not enforceable by any other person.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
-10-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
MCG CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President & CEO
SPRINGBOK CAPITAL MANAGEMENT, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Member
SPRINGBOK CAPITAL ONSHORE, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Member
SOUNDPOST PARTNERS, LP
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member
LYRICAL PARTNERS, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Partner
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Exhibit A
ENTITY SHARES
------------------------------------------- --------------
Springbok Capital Onshore, LLC 711,551
Springbok Capital Offshore, Ltd. 323,798
Springbok Capital Investors, LP 94,414
------------
SPRINGBOK ENTITIES 1,129,763
Soundpost Capital, LP 2,386,658
Soundpost Capital Offshore, Ltd. 842,440
------------
SOUNDPOST PARTNERS, LP 3,229,098
Lyrical Opportunity Partners II, L.P. 1,488,300
Lyrical Opportunity Partners II, Ltd. 1,706,439
------------
LYRICAL PARTNERS, L.P. 3,194,739
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 1,000
------------
TOTAL SPRINGBOK GROUP 7,554,600
Exhibit B
[INTENTIONALLY OMITTED; SEE EXHIBIT 99.11 TO THE SCHEDULE 13D]