Exhibit 10.69
FIFTH AMENDMENT
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This Fifth Amendment (this "Amendment") to the Credit Agreement (as
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defined below) is entered into as of this 11th day of January, 1999 among IMPAC
GROUP, INC., a Delaware corporation (the "Company"), AGI INCORPORATED, an
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Illinois corporation ("AGI"), KLEARFOLD, INC., a Pennsylvania Corporation
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("Klearfold" and together with AGI, each a "L/C Borrower" and collectively, the
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"L/C Borrowers"), Bank of America National Trust & Savings Association, as Agent
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(the "Agent"), and the financial institutions from time to time party thereto
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(the "Lenders"). Unless otherwise specified herein, capitalized terms used in
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this Amendment shall have the meanings ascribed to them by the Credit Agreement
(as defined below).
RECITALS
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WHEREAS, the Company, the L/C Borrowers, the Agent and the Lenders are
party to the Amended and Restated Multicurrency Credit Agreement dated as of
March 12, 1998 and as amended and restated as of July 7, 1998 (as amended by
that certain First Amendment dated September 11, 1998, that certain Second
Amendment dated November 13th, 1998, that certain Third Amendment dated November
16, l998 and that certain Fourth Amendment dated December 10, 1998 and as the
same may be further amended, supplemented, restated or otherwise modified from
time to time in accordance with its terms and in effect, the "Credit
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Agreement"),
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WHEREAS, the Company, the L/C Borrowers, the Agent and the Lenders now
wish to enter into certain further amendments to the Credit Agreement to
permit the Company to issue $20 million of preferred stock (the " Preferred
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Stock") and to use the proceeds thereof to redeem the common stock held by
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certain of its current shareholders, all as more specifically set forth herein;
NOW THEREFORE, in consideration of the mutual execution hereof and
other good and valuable consideration, the parties hereto agree as follows:
Section 1. Amendments. A. Section 1.01 of the Credit Agreement is
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hereby amended by inserting the following new definitions in a1phabetical
order as appropriate:
"Preferred Stock" shall have the meaning specified in Section
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8.20(iv).
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"Preferred Stock Documents" shall mean (i) the Securities Purchase
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Agreement among the Company, BT Capital Investors, L.P. ("BT") and Phoenix
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Home Mutual Life Insurance Company ("Phoenix"), (ii) the Fourth Amended and
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Restated Certificate of Incorporation of the Company, (iii) the
Warrants for the Purchase of Series A Common Stock ("Warrants") issued by
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the Company to BT and Phoenix, (iv) that certain letter agreement between
the Company and Heritage Fund II Investment Corporation (with respect to
the redemption of common stock) and (v) the other documents, agreements and
closing certificates required thereby (in any event excluding the Second
Amended and Restated Stockholder Agreement of the Company, as further
amended), as all of such agreements and
documents listed above are in effect on the date of the effectiveness of
that certain Fifth Amendment to the Credit Agreement.
"Warrants" shall have the meaning specified in the definition of
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Preferred Stock Documents.
B. Section 8.05 of the Credit Agreement is hereby amended by adding
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the following new proviso to the end or such section:
"provided, further, however, that notwithstanding anything to the
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contrary set forth above, in no event shall the Company or any of its
Subsidiaries be permitted to incur "Ratio Debt" (as defined in the Fourth
Amended and Restated Certificate of Incorporation of the Company (as
amended, the "Charter")) or any other Indebtedness otherwise permitted
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under the Preferred Stock Documents or the Charter which would result in or
cause the $40 million basket amount in clause (i) of the definition of
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Permitted Indebtedness in the Charter to be reduced except, and only to the
extent that, the Company is then permitted to and irrevocably elects to
permanently reduce the Aggregate Revolving Loan Commitment in accordance
with this Agreement to an amount (which assuming all of the Commitments are
fully drawn, borrowed and utilized at all times under this Agreement) such
that all Revolving Loans and other Obligations hereunder would nonetheless
constitute Permitted Indebtedness under clauses (i), (ii) and (ix) of the
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definition thereof in the Charter and otherwise be permitted under the
Charter and the Preferred Stock Documents."
C. Section 8.06 of the Credit Agreement is hereby amended by
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deleting such section in its entirety and inserting in lieu thereof the
following new section:
"Except as set forth on Schedule 8.06, no Credit Party shall, nor
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shall suffer or permit any of its Subsidiaries to, enter into any
transaction with any Affiliate (other than a Wholly-Owned Subsidiary) of a
Credit Party, except upon fair and reasonable terms no less favorable to
such Credit Party or such Subsidiary than would obtain in a comparable
arm's length transaction with a Person not an Affiliate of such Credit
Party or such Subsidiary, except (a) the Offer shall be permitted, (b)
the redemption of certain shares of the Company's common stock as set forth
in Section 8 11(c)(i) shall be permitted and (c) in connection with
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granting liens on the assets of its Subsidiaries in the United Kingdom and
Ireland, the Company and its Subsidiaries may enter into (but may not
further amend, modify or waive without the consent of the Agent) that
certain Support Agreement in substantially the form presented to the Agent
and dated December 15, 1998,"
D. Section 8.11 of the Credit Agreement is hereby amended by adding a
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new paragraph (c) at the end of such section as follows:
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"(c) Notwithstanding anything else herein to the contrary, (i) so long
as no Default or Event of Default has occurred and is continuing or would
result after giving effect thereto and no Change of Control would occur,
the Company may on or before January 15, 1999
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redeem up to $20 million of the common stock currently held by Heritage
Fund II Investment Corporation using the net proceeds received by the
Company from the issuance of the Preferred Stock provided that the Company
has received all required shareholder approvals and the redemption is done
substantially simultaneously with the receipt of such proceeds from the
Preferred Stock, and (ii) in no event or circumstance whatsoever may the
Company or any of its Subsidiaries redeem any of the Preferred Stock or
Warrants or pay any dividends, distributions, fees or other payments of any
kind (including, without limitation, in connection with the settlement of
any dispute with the purchasers of such Preferred Stock and Warrants, or
their assigns) with respect to such Preferred Stock or Warrants and
whether such payment is made pursuant to an optional or mandatory
redemption obligation, any required offer after a Change of Control or
other similar event (as described in the Preferred Stock Documents) or any
claim, liability or expense under the Preferred Stock Documents or
otherwise as a claim at law or in equity without the prior written consent
of the Lenders (which they may withhold in their sole discretion) other
than (I) the 3% fee payable to the purchasers of the Preferred Stock
payable in connection with the issuance thereof and other out of pocket
fees and expenses of the purchasers of the Preferred Stock payable in
connection with the issuance thereof and other out of pocket fees and
expenses of the purchasers of the Preferred Stock payable in accordance
with the terms of Section 7.08 of the Securities Purchase Agreement which
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is referred to in clause (j) of the definition of Preferred Stock Documents
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and (II) dividends or other indemnification payments made solely through
the issuance of additional shares of Preferred Stock or common stock of the
Company to the holders of the Preferred Stock in accordance with the
terms of the Preferred Stock Documents."
E. Section 8.20 of the Credit Agreement is hereby amended by deleting
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paragraph (iv) in its entirety and inserting in lieu thereof the following new
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paragraphs (iv) and (v):
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"(iv) make any amendment or modification to any terms or provisions
of its Organization Documents which is materially adverse to the Agent or
the Lenders or issue any preferred stock except that on or before January
l5, 1999 the Company may issue shares of Series A Redeemable Preferred
Stock, par value $.001 per share (the "Preferred Stock") with a liquidation
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preference of $20 million pursuant to the Preferred Stock Documents, and in
connection therewith may (I) amend and restate its Certificate of
Incorporation pursuant to the terms of that certain Fourth Amended and
Restated Certificate of Incorporation in form and substance acceptable to
the Agent to permit the issuance of such Preferred Stock and to set forth
the rights. preferences, powers, privileges and restrictions,
qualifications, limitations, terms and conditions of the such Preferred
Stock, (II) issue after the date hereof additional shares of Preferred
Stock or common stock of the Company in accordance with the terms of the
Preferred Stock Documents as dividends or indemnification payments to the
holders of such Preferred Stock and (III) amend and restate the First
Amended and Restated Stockholder Agreement pursuant to the terms of that
certain Second Amended and Restated Stockholder Agreement in form and
substance acceptable to the Agent.
3
(v) The Company shall not amend or modify (i) the rights, preferences,
powers, privileges and restrictions, qualifications, limitations, terms and
conditions of the Preferred Stock or (ii) Preferred Stock Documents without
the prior written consent of the Lenders."
F. Section 9.01 of the Credit Agreement is hereby amended by deleting
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the period at the end of paragraph (q) of such section and inserting in lieu
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thereof the word ";or" at the end of such paragraph (q), and further adding a
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new paragraph (r) at the end of such Section 9.01 as follows:
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"(r)(i) one or more judgments, orders, decrees, or arbitration awards
is entered against any Credit Party or any of their Subsidiaries involving
or with respect to the Preferred Stock or the rights of any holders thereof
except only a judgment requiring delivery of additional shares of common
stock or Preferred Stock of the Company, or (ii) any event shall occur that
gives any holder of any shares of Preferred Stock a mandatory right of
redemption, repurchase or other payment or redemption right of any kind
with respect thereto or otherwise obligates any Credit Party or any of
their Subsidiaries to repurchase or offer to repurchase any shares of
Preferred Stock unless such redemption, payment or repurchase obligation is
waived in full in writing within ten (10) days after the date such
redemption, repayment or other obligation first arises."
G. Schedule 6.19 to the Credit Agreement is hereby amended by
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replacing such schedule in its entirety with the Schedule 6.19 attached hereto
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as Exhibit A.
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Section 2. Acknowledgment on Extent of ▇▇▇▇▇▇▇ Robor Collateral. The
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Lenders hereby acknowledge and agree that they have received copies of the
closing memo delineating the closing deliveries in connection with the
transactions contemplated by the Target Security Document and the Target UK
Subsidiaries Security Documents, and a memo dated December 30, 1998 from the
Agent outlining generally the type and extent of the Collateral and Liens which
were granted to the Agent (on behalf of the Lenders) in the assets and
properties of Target and its Subsidiaries, and the Lenders hereby approve the
extent of the Collateral on which Liens were granted and the types of Liens
granted, and while all of the available assets have not been pledged to the
Agent on behalf of the Lenders, the properties in which Liens have been granted
to date are acceptable. This acknowledgment is solely for the benefit of the
Agent and none of the Company or its Subsidiaries will have any rights under
this Section 2 nor shall anything set forth herein constitute a waiver or
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modification of the obligations of such Persons under the Loan Documents or
their agreement to grant future Liens should they be requested to do so by the
Agent.
Section 3. Reference to and Effect Upon the Credit Agreement.
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(a) Except as specifically amended above, the Credit Agreement
shall remain in full force and effect and is hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of the Agent or
any Lenders under the
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Credit Agreement nor constitute a waiver of any provision of the Credit
Agreement, except as specifically set forth herein. Upon the effectiveness
of this Amendment, each reference in the Agreement to "this Agreement",
"hereunder", "thereof", "herein" or words of similar import shall mean and
be a reference to the Credit Agreement as amended hereby.
Section 4. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
Section 5. Headings. Section headings in this Amendment are included
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herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
Section 6. Counterparts. This Amendment may be executed in any number
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of counterparts, each of which when so executed shall be deemed an original but
all such counterparts shall constitute one and the same instrument.
Section 7. Amendment Fee. In connection with the approval of this
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Amendment, the Company hereby agrees to pay to the Agent on behalf of the
Lenders an aggregate fee of $75,000 (the "Amendment Fee") to be shared among the
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Lenders by paying $10,000 to each Lender (other than BofA) listed on the
signature page hereof and paying $15,000 to BOFA as Lender and as Agent.
Section 8. Effectiveness.
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This Amendment shall become effective as of the date first written
above after receipt by the Agent of the following:
(a) delivery of executed signature pages for this Amendment signed by
the Company, the L/C Borrowers, the Subsidiary Guarantors, the Agent and
Majority Lenders;
(b) receipt by the Agent of an executed legal opinion from the
Company's counsel in form and substance acceptable to the Agent opining to,
among other things, the legality of the issuance of the Preferred Stock and
that no conflicts exist with respect to the Credit Agreement, the Senior
Subordinated Note Documents or any other material contracts in connection
with such issuance and the redemption of the common stock from the Heritage
funds;
(c) payment in cash of all outstanding and invoiced legal fees and
expenses of the Agent's US and UK legal counsel;
(d) payment in cash of the Amendment Fee to the Agent on behalf of the
Lenders: and
5
(e) receipt by the Agent of certified copies of (i) the Securities
Purchase Agreement among the Company, BT Capital Investors, L.P. ("BT") and
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Phoenix Home Mutual Life Insurance Company ("Phoenix"), (ii) the Fourth
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Amended and Restated Certificate of Incorporation of the Company, (iii) the
Warrant for the Purchase of Series A Common Stock among the Company, BT and
Phoenix, (iv) that certain letter agreement between the Company and Heritage
Fund II Investment Corporation (with respect to the redemption of common
stock), (v) the Second Amended and Restated Stockholder Agreement among the
Company and its shareholders and (vi) the other documents, agreements and
closing certification contemplated thereby, as in effect on the date hereof,
and all in form and substance acceptable to the Agent.
Section 9. Representations and Warranties. Each of the Company and each
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L/C Borrower hereby represents and warrants as to itself that:
(a) The execution, delivery and performance by each such Person of this
Amendment have been duly authorized by all necessary corporate action and
that this Amendment constitutes the legal, valid and binding obligation of
such Person, enforceable against such Person in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability;
(b) Each of the representations and warranties contained in the Credit
Agreement is true and correct in all material respects on and as of the date
hereof as if made on the date hereof (except to the extent such
representations and warranties expressly refer to an earlier date, in which
case they are true and correct as of such earlier date);
(c) After giving effect to this Amendment and the Preferred Stock
issuance and the redemption of the common stock owned by the Heritage funds
(and, the other transactions contemplated thereby), no Default or Event of
Default has occurred and is continuing; and
(d) All of the representations and warranties given under the Preferred
Stock Documents (as such term is defined in Section 1(A) of this Amendment)
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are true and correct as of the date hereof.
Section 10. Reaffirmation of Guaranties. The Company and each L/C
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Borrower and Subsidiary Guarantor as a guarantor of the Obligations under each
Guaranty and the other Loan Documents, hereby reaffirms its continuing
obligations and liabilities thereunder. and agrees that such Guaranty and the
other Loan Documents shall remain in full force and effect and cover and extend
to all Obligations under the Credit Agreement (as amended hereby).
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment by their
duly authorized officers as of the date first written above.
IMPAC GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Chief Financial Officer
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AGI INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Chief Financial Officer
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KLEARFOLD, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Chief Financial Officer
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BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION,
as Agent:
By:
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Title:
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BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION,
individually as a Lender, the Swing Line
Lender and the Issuing Bank
By:
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Title:
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[TO FIFTH AMENDMENT]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment by their
duly authorized officers as of the date first written above.
IMPAC GROUP, INC.
By:
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Title:
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AGI INCORPORATED
By:
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Title:
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KLEARFOLD, INC.
By:
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Title:
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BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION,
as Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
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BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION,
individually as a Lender, the Swing Line
Lender and the Issuing Bank
By: /s/ Illegible
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Title:
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[TO FIFTH AMENDEMENT]
8
SOCIETE GENERALE, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Director
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ABN AMRO BANK, N.V. as a Lender
By:
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Name:
-----------------------------------
Title:
----------------------------------
By:
--------------------------------------
Name:
-----------------------------------
Title:
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DRESDNER BANK AG NEW YORK
AND GRAND CAYMAN BRANCHES,
as a Lender
By:
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Name:
-----------------------------------
Title:
----------------------------------
By:
--------------------------------------
Name:
-----------------------------------
Title:
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9
SOCIETE GENERALE, as a Lender
By:
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Name:
-----------------------------------
Title:
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ABN AMRO BANK, N.V. as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Group Vice President and Director
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
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DRESDNER BANK AG NEW YORK
AND GRAND CAYMAN BRANCHES,
as a Lender
By:
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Name:
-----------------------------------
Title:
----------------------------------
By:
--------------------------------------
Name:
-----------------------------------
Title:
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[TO FIFTH AMENDMENT]
10
SOCIETE GENERALE, as a Lender
By:
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Name:
-----------------------------------
Title:
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ABN AMRO BANK, N.V. as a Lender
By:
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Name:
-----------------------------------
Title:
----------------------------------
By:
--------------------------------------
Name:
-----------------------------------
Title:
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DRESDNER BANK AG NEW YORK
AND GRAND CAYMAN BRANCHES,
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Assistant Treasurer
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Vice President
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[TO FIFTH AMENDMENT]
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as a Lender
By: /s/ P.C.H. ▇▇▇▇▇
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Name: P.C.H. ▇▇▇▇▇
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Title: Senior Manager Loan Operations
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THE FUJI BANK LIMITED, as a Lender
By:
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Name:
-----------------------------------
Title:
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SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By:
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Name:
-----------------------------------
Title:
----------------------------------
[TO FIFTH AMENDMENT]
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as a Lender
By:
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Name:
-----------------------------------
Title:
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THE FUJI BANK LIMITED, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Joint General Manager
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SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By:
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Name:
-----------------------------------
Title:
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[TO FIFTH AMENDMENT]
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as a Lender
By:
--------------------------------------
Name:
-----------------------------------
Title:
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THE FUJI BANK LIMITED, as a Lender
By:
--------------------------------------
Name:
-----------------------------------
Title:
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SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By: /s/ ▇▇▇▇▇ ▇. Page
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Name: ▇▇▇▇▇ ▇. Page
-----------------------------------
Title: Vice President
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[TO FIFTH AMENDMENT]
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Acknowledged and Agreed to by the undersigned as of the date first set forth
above.
KF - INTERNATIONAL, INC.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Chief Financial Officer
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KF - DELAWARE, INC.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Chief Financial Officer
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IMPAC EUROPE LIMITED
By:
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Title:
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LEVELPROMPT LIMITED
By:
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Title:
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▇▇▇▇▇▇▇ ROBOT LIMITED
By:
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Title:
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[TO FIFTH AMENDMENT]
15
Acknowledged and Agreed to by the undersigned as of the date first set forth
above.
KF - INTERNATIONAL, INC.
By:
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Title:
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KF - DELAWARE, INC.
By:
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Title:
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IMPAC EUROPE LIMITED
By: Illegible
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Title:
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LEVELPROMPT LIMITED
By: Illegible
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Title:
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▇▇▇▇▇▇▇ ROBOR LIMITED
By: Illegible
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Title:
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[TO FIFTH AMENDMENT]
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▇▇▇▇▇▇▇ ROBOR LABELS LIMITED
By: Illegible
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Title:
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▇▇▇▇▇ ▇▇▇▇▇ LIMITED
By: Illegible
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Title:
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SONICON LIMITED
By: Illegible
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Title:
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▇▇▇▇▇▇▇ ROBOR AUDIO AND COMPUTER
SERVICES LIMITED
By: Illegible
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Title:
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▇▇▇▇▇▇▇ ROBOR SALES LIMITED
By: Illegible
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Title:
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TOPHURST PROPERTIES LIMITED
By: Illegible
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Title:
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[TO FIFTH AMENDMENT]
17
▇▇▇▇▇▇▇ ROBOR (OVERSEAS) LIMITED
By: Illegible
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Title:
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SCHEDULE 6.19
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Capitalization; Subsidiaries and Minority Interests
(a) Subsidiaries
(i) IMPAC Group, Inc.:
Klearfold, Inc., a Pennsylvania corporation - all of the issued and
outstanding shares (100) of common stock of Klearfold, Inc. are owned by
the Company.
AGI Incorporated, an Illinois corporation - all of the issued and
outstanding shares (100) of common stock of AGI Incorporated are owned by
the Company.
IMPAC Europe Limited, a private limited company incorporated under the
laws of England and Wales, formerly known as IMPAC Europe Public Limited
Company or IMPAC Europe PLC -ninety-nine (99) shares of capital stock of
IMPAC Europe Limited are owned by the Company, and one (1) share of capital
stock of IMPAC Europe Limited is owned by Levelprompt Limited.
Levelprompt Limited, a private limited company incorporated under the
laws of England and Wales - all of the issued and outstanding shares of
capital stock of Levelprompt Limited are owned by IMPAC.
(ii) Klearfold, Inc.:
KF-Delaware, Inc., a Delaware corporation - all of the issued and
outstanding shares (100) of common stock of KE-Delaware, Inc. are owned by
Klearfold, Inc.
KF-International, Inc., a U.S. Virgin Islands corporation - all of the
issued and outstanding shares (1,000) of common stock of KF-International,
Inc. are owned by Klearfold, Inc.
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(iii) IMPAC Europe Limited:
Subject to exercise of options for the acquisition of shares of
▇▇▇▇▇▇▇ Robor Limited's ordinary share capital pursuant to the Option
Conversion Notice referred to in section (c)(iii) of this Schedule 6.19,
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IMPAC Europe Limited owns all of the issued and outstanding shares of
capital stock of ▇▇▇▇▇▇▇ Robor Limited, a private limited company
incorporated under the laws of England and Wales and formerly known as
▇▇▇▇▇▇▇ Robor PLC. ▇▇▇▇▇▇▇ Robor Limited is the beneficial owner of one
hundred percent of the shares of capital stock of each of its Subsidiaries,
as shown on Attachment A to this Schedule 6.19. In addition, ▇▇▇▇▇ ▇▇▇▇▇
---------- - -------- ----
Holding B.V., a limited company organized under the laws of the Netherlands
and a wholly-owned subsidiary of ▇▇▇▇▇▇▇ Robor Limited, is the beneficial
owner of all of the issued and outstanding shares of capital stock of Van
▇▇ ▇▇▇▇▇ Packaging BV, ▇▇▇▇▇ ▇▇▇▇▇ B.V. and Music Print B.V., each limited
companies organized under the laws of the Netherlands, ▇▇▇▇▇ ▇▇▇▇▇ GmbH, a
limited company organized under the laws of Austria, and Printing Resources
Limited, a corporation organized under the laws of Ireland.
(b) Equity Investments
TR ESOP Limited, a Subsidiary of ▇▇▇▇▇▇▇ Robor Limited, owns a nominal
amount (in most instances, 1 share) of the capital stock of certain competitors
of the Company and its Subsidiaries.
(c) Capitalization
Upon the effectiveness of the Fourth Amended and Restated Certificate of
Incorporation of the Company and completion of the investments pursuant to the
Securities Purchase Agreement dated as of January 8, 1999 among the Company and
the Purchasers, as defined therein (the "Preferred Stock Purchase Agreement"),
--------- ----- -------- -----------
the capitalization of the Company will be as follows:
(i) Authorized:
1,000,000 shares of Series A Common Stock, $0.001 par value per share.
100,000 shares of Series B Common Stock, $0.001 par value per share.
50,000 shares of Series A Redeemable Preferred Stock, $0.001 par value
per share.
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(ii) Issued and Outstanding:
A: Series A Common Stock
191,745.5 shares of Series A Common Stock, held as set forth below:
Name of Holder Number of
------------------------------------ ---------
Shares
------
Heritage Fund I, L.P. 58,074.27
Heritage Fund II, L.P. 34,934.77
Heritage Fund II Investment 32,862.31/1/
Corporation
▇▇▇▇▇▇▇ ▇▇▇▇▇ 19,005.35
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 7,958.5
▇▇▇▇▇▇, and H. ▇▇▇▇▇ ▇▇▇▇▇▇, as
Trustees under an Irrevocable Deed
of Trust dated 08/12/92 f/b/o H.
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 6,227
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 4,964
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 4,440
Freya Block, as Trustee of the 4,024
▇▇▇▇▇▇▇ ▇. Block Family Trust
u/t/a dated 4/1/94
--------------------------
1. Pursuant to a Stock Repurchase Agreement to be dated as of January 8, 1999,
the Company will repurchase 30,087.37 shares of its Series A Common Stock from
Heritage Fund II Investment Corporation with the net proceeds from the issuance
of shares of Preferred Stock.
21
Name of Holder Number of
------------------------------------ ---------
Shares
------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. 3,916
▇▇▇▇▇▇, as Trustees under an
Irrevocable Deed of Trust dated
06/04/96 of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ 3,782
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 3,318.47
▇▇▇▇ ▇▇▇▇▇▇▇ 2,941
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Trustee of 1,551.94
the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trust dated
5/17/92
▇▇▇▇ ▇▇▇▇▇▇▇ 1,029
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 588
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 499.39
▇▇▇▇▇▇ ▇▇▇▇▇▇ 484
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 484
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 220.5
Zenas Block 147
▇▇▇▇▇▇ ▇▇▇▇▇▇ 73.5/2/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 73.5
--------------------------------
2. ▇▇. ▇▇▇▇▇▇'▇ employment with the Company was terminated on October 11, 1998.
Pursuant to an Agreement relating to Employment and Stock Repurchase dated as of
March 12, 1998, the Company intends to repurchase the shares of Series A Common
Stock currently owned by ▇▇. ▇▇▇▇▇▇.
22
Name of Holder Number of
------------------------------------ ---------
Shares
------
▇▇▇▇▇ ▇▇▇▇▇▇ 73.5
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 73.5
---------
TOTAL 191,745.5
B: Series B Common Stock:
4,500 shares of Series B Common Stock, held by Heritage Fund II, L.P.
C: Series A Redeemable Preferred Stock:
20,000 shares of Series A Redeemable Preferred Stock, held as follows:
Name of Holder Number of Shares
-------------- ----------------
BT Capital Investors, L.P. 12,000
Phoenix HomeLife Insurance Company 8,000
(iii) Options:
A: The following options for the purchase of shares of the Company's Series A
Common Stock have been granted pursuant to the Company's 1998 Stock Option
Plan:
Options for following
-----------------------
Optionees Number of Shares
----------------------- ----------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 152
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 152
▇▇▇▇▇ ▇▇▇▇▇▇ 152
▇▇▇▇▇ ▇▇▇▇▇▇▇ 152
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 152
23
Stock to be issued under these options is to be acquired by the
Company from ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and their respective
trusts, pursuant to the Stock Purchase Agreement, dated as of
March 12, 1998, which is listed as item (e) in Schedule 8.06 hereto.
-------- ----
In addition, a similar option had been issued to ▇▇▇▇▇▇ ▇▇▇▇▇▇, whose
employment was terminated by the Company on October 11, 1998. As a result
of that termination, his unvested options were cancelled, and the Herrins
have agreed to make a cash payment to ▇▇. ▇▇▇▇▇▇ to discharge his vested
options (for 15.2 shares of Series A Common Stock).
B. Second 1998 Stock Option Plan of the Company, approved by the Company's
Board of Directors on December 14, 1998: provides for issuance of up to
20,000 shares of Series A Common Stock to employees or directors of, or
consultants to, the Company or any of its Subsidiaries. No options have yet
been granted under this Plan, but the Company has discussed with certain of
its employees the possibility of making available to such employees options
for at least 18,500 shares of Series A Common Stock.
▇. ▇▇▇▇▇▇▇ Robor Limited Stock Options: By written notice dated December 14,
1998 (the "Option Conversion Notice") to the holders of options under
------ ---------- -------
▇▇▇▇▇▇▇ Robor Limited's Executive Share Option Scheme 1988 and Senior
Executive Incentive Scheme 1994 (the "▇▇▇▇▇▇▇ Optionholders"), IMPAC Europe
------- ---------------
Limited offered to the ▇▇▇▇▇▇▇ Optionholders the opportunity either (i) to
convert their outstanding options for the purchase of shares of ▇▇▇▇▇▇▇
Robor Limited into options to acquire shares of the Company's Class B
Common Stock, or (ii) to exercise their existing options and acquire shares
of ▇▇▇▇▇▇▇ Robor Limited, which could then be tendered to IMPAC Europe
Limited pursuant to the Offer. The offer under the Option Conversion Notice
will remain open for acceptance until February 27, 1999. At December 14,
1998, the ▇▇▇▇▇▇▇ Optionholders held options to acquire 1,205,578 shares of
▇▇▇▇▇▇▇ Robor Limited's ordinary share capital. If all such options were
converted pursuant to the Option Conversion Notice, the converted options
would be exercisable for 7,125.31 shares of the Company's Series B Common
Stock. Based on information supplied to the Company by representatives of
the ▇▇▇▇▇▇▇ Optionholders prior to the date hereof, the Company does not
expect the number of shares of its Series B Common Stock issuable upon
exercise in full of all such converted options to exceed 4,500.
24
D: Pursuant to a letter agreement regarding equity recapitalization, dated as
of September 10, 1998, entered into among the Company and its stockholders,
and on the terms and conditions set forth therein, the Company has agreed
to offer certain shares of its common stock to its employees.
(iv) Warrants:
Warrants for the purchase of 6,913.33 shares of the Company's Series A
Common Stock, held as follows:
Warrants for Following
----------------------
Name of Holder Number of Shares
-------------- ----------------
BT Capital Investors, L.P. 4,148
Phoenix Home Life Mutual 2,765.33
Insurance Company
25
ATTACHMENT A
▇▇▇▇▇▇▇ Robor Group Structure
(each organized in England and Wales,
unless otherwise stated)
-------------
▇▇▇▇▇▇▇ Robor (100% shareholding in all
Limited subsidiary companies)
-------------
|
-------------------------------------------------------------------------------------------------------------------------------
| | | | | | | | |
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Robor ▇▇▇▇▇ ▇▇▇▇▇ Robor Audio TR ESOP Pinepoint Tophurst Sonicon Holding B.V. Robor
Sales Limited and Trustee Limited + Properties Limited Holding of Labels
Limited Printing & Computer Limited Design and Limited Design and shares in Limited
Sales Finishing Services Employee litho Holding of litho overseas Labels
Limited* Benefit reproduction group reproduction subsidiaries printing
Packaging Plan properties
and Trustee Netherlands
fulfilment
services
|
-----------------------------------------------------------------
Van ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Printing ▇▇▇▇▇ ▇▇▇▇▇
Packaging B.V. Resources GmbH
B.V. Printing & Printing & Limited Printing &
Finishing Finishing Printing & Finishing
Finishing
-----------------------------------------------------------------
Netherlands Netherlands Ireland Austria
|
Music Print B.V.
-----------------
Netherlands
* became non-trading from 1 July 1998
+ became non-trading from 1 April 1998
The following companies are dormant companies, all of whose
shares are held by ▇▇▇▇▇▇▇ Robor Limited:
▇▇▇▇▇▇▇-▇▇▇▇▇ (Overseas) Limited
Admat Labels Limited
▇. ▇▇▇▇▇▇▇ & Company Limited
TRG Graphics Limited
Arun Labels Limited
R&B Litho Reproductions Limited
Icon Communications Limited
TR Displayprint Limited
Pinepoint Colour Response Limited
▇▇▇▇▇▇▇ Robor Packaging Limited
26