JOINDER TO AMENDED AND RESTATED SECURITIES HOLDERS AGREEMENT AND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Exhibit
10.45
JOINDER
TO
AMENDED
AND RESTATED SECURITIES HOLDERS AGREEMENT AND
AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS
JOINDER (this “Joinder”) is made and entered into as of January 15, 2008 by and
among TSG Holdings Corp., a Delaware corporation (the “Company”) and
Participatiemaatschappij Giraffe B.V., a limited liability company organized
under the laws of The Netherlands (the “Investor”). Capitalized terms
used herein but not otherwise defined shall have the meanings set forth in the
Amended and Restated Securities Holders Agreement, dated as of May 16, 2007 by
and among the Company, The Sheridan Group Holdings (BRS), LLC, The Sheridan
Group Holdings (▇▇▇▇▇▇▇▇▇), LLC, Participatiemaatschappij Neushoorn B.V., a
limited liability company organized under the laws of The Netherlands
(“Neushoorn”), Participatiemaatschappij Olifant B.V., a limited liability
company organized under the laws of The Netherlands (“Olifant” and together with
Neushoorn, the “Euradius Investors”) and the other investors of the Company
named therein (the “Securities Holders Agreement”).
WHEREAS,
as of October 21, 2007, each of the Euradius Investors merged with and into the
Investor, with the Investor being the surviving company. As a result
of the merger, the Investor has acquired 6,112.98104 shares of the Company’s
Series B 10% Cumulative Compounding Preferred Stock (the “Series B Preferred
Stock”) and 80,258.644 shares of the Company’s Common Stock (the “Common Stock”)
from Neushoorn and 2,292.05270 shares of the Series B Preferred Stock and
30,092.854 shares of the Common Stock from Olifant (the “Transferred
Interest”). The Company requires that the Investor, as a condition to
the Investor being a Permitted Transferee of the Euradius Investors, execute an
agreement expressly agreeing to become bound by and a party to the provisions of
the Securities Holders Agreement.
WHEREAS,
in connection with the Investor joining the Securities Holders Agreement, the
Investor and the other parties hereto would like the Investor to become bound by
and a party to the provisions of the Amended and Restated Registration Rights
Agreement dated as of May 16, 2007 by and among the Company, The Sheridan Group
Holdings (BRS), LLC, The Sheridan Group Holdings (▇▇▇▇▇▇▇▇▇), LLC, the Euradius
Investors and the other investors of the Company named therein (the
“Registration Rights Agreement”).
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Joinder hereby agree as follows:
1. Agreement to be
Bound. The Investor hereby agrees that upon execution of this
Joinder by Investor, the Investor shall become a party to the Securities Holders
Agreement and the Registration Rights Agreement and shall be fully bound by and
subject to, and have all of the rights and benefits of, all of the covenants,
terms and conditions of the Securities Holders Agreement and the Registration
Rights Agreement including, without limitation, Article II of the Securities
Holders Agreement.
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2. Representations and
Warranties of the Investor. The Investor represents and
warrants to the Company as follows:
(a) The
Investor is a Permitted Transferee of the Euradius Investors.
(b) The
Investor is a private limited liability company duly organized, validly
existing, and in good standing under the laws of the Netherlands and has all
requisite power and authority to execute this Joinder and to perform its
obligations hereunder without the need for the consent of any other person
(other than such consents as have heretofore been obtained).
(c) This
Joinder has been duly authorized by all necessary action, has been duly executed
and delivered by the Investor and constitutes the legal, valid and binding
obligation of the Investor enforceable against the Investor in accordance with
its terms.
(d) No
action, suit, proceeding or investigation is pending or, to the Investor’s
knowledge, threatened, against the Investor with respect to the execution and
delivery of this Joinder or the consummation by the Investor of the transactions
contemplated hereby.
(e) The
Investor is an “accredited investor” as such term is defined in Rule 501(a)
promulgated under the Securities Act of 1933, as amended.
(f)
The Investor is acquiring the Transferred Interest
for its own account for investment purposes only and not with a view to any
further resale or distribution of the Transferred Interest that would violate
the Securities Act of 1933, as amended (the “Securities Act”) or the applicable
state securities laws of any state. The Investor will not distribute
the Transferred Interest in violation of the Securities Act or the applicable
securities laws of any state.
(g) The
Investor has sufficient investment experience as to be able to understand the
merits and risks of an investment in the Company. The Investor
understands the Transferred Interest has not been registered under the
Securities Act or applicable state securities laws, must be held indefinitely
unless subsequently registered under the Securities Act and any applicable state
securities laws or unless an exemption from such registration becomes or is
available and may not be sold or transferred without the consent of the
Company.
(h) The
Investor has received a copy of and has had an opportunity to review the
Securities Holders Agreement and the Registration Rights
Agreement. The Investor has also received or has been afforded access
to such other information concerning the Company and its business as the
Investor has deemed necessary to make an informed investment
decision. The Investor has had an opportunity to ask questions and
receive answers to any questions Investor may have to be able to evaluate the
merits and risks of an investment in the Company.
3. Notices. All
notices and other communications which are required or permitted hereunder shall
be delivered in accordance with Section 5.4 of the Securities Holders Agreement
except that notices to the Investor, as successor in interest to the Euradius
Investors, shall be delivered to:
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If to the
Investor:
Participatiemaatschappij
Giraffe B.V.
▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇
Attn:
Fax:
4. Successors and
Assigns. Subject to the provisions of the Securities Holders
Agreement and the Registration Rights Agreement, this Joinder shall bind and
inure to the benefit of and be enforceable by the Company and the Investor and
their respective successors and assigns.
5. Counterparts. This
Joinder may be executed in separate counterparts each of which shall be an
original and all of which taken together shall constitute one and the same
agreement.
6. Governing
Law. This Joinder shall be governed by and construed in
accordance with the laws of the State of Delaware without reference to its
choice of law or conflict of law provisions thereof
7. Descriptive
Headings. The descriptive headings of this Joinder are
inserted for convenience only and do not constitute a part of this
Joinder.
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IN WITNESS WHEREOF, the
parties hereto have executed this Joinder as of the date first above
written.
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TSG
HOLDINGS CORP.
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By:
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/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇
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Name: ▇▇▇▇
▇. ▇▇▇▇▇▇
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Title: President
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PARTICIPATIEMAATSCHAPPIJ
GIRAFFE B.V.
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By:
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/s/ ▇▇▇▇▇▇
▇▇▇
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Name: ▇▇▇▇▇▇
▇▇▇
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Title: Managing
Director
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