Exhibit 10.2
Execution Copy
OPTION REPURCHASE AGREEMENT
This Option Repurchase Agreement (this "Agreement") is made and
entered into as of May 17, 2005 by and between Brink International B.V. (the
"Company"), a private company with limited liability ("besloten vennootschap met
beperkte aansprakelijkheid") organized and existing under the laws of The
Netherlands, having its corporate seat at Staphorst (address: 7951 CX Staphorst,
Xxxxxxxxxxxx 0, Xxx Xxxxxxxxxxx), and Xxxxxx XxXxxxx (the "Optionholder").
WHEREAS, the Optionholder is an employee of the Company and/or
one of its Subsidiaries;
WHEREAS, pursuant to that certain Brink Management Option
Subscription Agreement (the "BRINK SUBSCRIPTION AGREEMENT") dated as of the date
hereof between the Company and the Optionholder, among other things, the Company
agreed to grant and the Optionholder agreed to acquire options to purchase 7254
ordinary shares of the Company (the "RESTRICTED OPTIONS"); and
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, the following
terms shall have the meanings set forth below:
"ADJUSTED BRINK EBITDA" means, for any period, the net income (or
net loss) of the Brink Companies, determined in accordance with GAAP, plus (a)
any provision for (or less any benefit from) Income Taxes, (b) any deduction for
interest expense, net of interest income and (c) depreciation and amortization
expense (including the amortization of capitalized tooling that is customer
owned and non-reimbursed), and as adjusted for the following items (to the
extent that they are reflected in net income or net loss):
(i) elimination of: (A) all extraordinary gains and losses
determined in accordance with GAAP (APB 30), (B) gains and losses from sales or
dispositions of property and equipment or other fixed assets, (C) all
non-recurring income and expense items not incurred in the ordinary course of
business to the extent included in the determination of net income for the
relevant determination period and (D) foreign currency transaction gains and
losses, to the extent included in the determination of net income for the
relevant determination period;
(ii) add back for the portion of the management fees that are
paid or accrued to members of the Xxxxxx Xxxxxx Group, pursuant to the
Management Agreement charged to the Brink Companies in accordance with past
practice; and
(iii) elimination of any income statement impact from the reserve
established by any of the Brink Companies in connection with the G3.0 Model
Recall (as defined in the Securities Purchase Agreement), to the extent Losses
(as defined in the Securities Purchase Agreement) arising from the G3.0 Model
Recall are actually paid for or reimbursed by the Sellers or are subject to a
continuing obligation of indemnification of the Sellers pursuant to Article IX
of the Securities Purchase Agreement under which the Sellers are not in default.
Each of the financial accounting terms in this definition of
Adjusted Brink EBITDA shall be determined in accordance with GAAP, to the extent
such items are addressed by GAAP.
"AFFILIATE" shall mean, with respect to any specified Person, a
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with, such specified
Person (it being understood that a Person shall be deemed to "control" another
Person, for purposes of this definition, if such Person directly or indirectly
has the power to direct or cause the direction of the management and policies of
such other Person, whether through holding beneficial ownership interests in
such other Person, through contracts or otherwise). For purposes of an
individual, an Affiliate of such individual shall also mean any family member of
such individual or a Person owned 10% or more by such individual.
"ATTRIBUTED CONSOLIDATED EBITDA MULTIPLE" shall be determined, in
connection with a Consolidated Change in Control, as the quotient determined by
dividing:
(A) the Fair Value of the consideration
received, without duplication, for the sale
of the equity interests sold by all holders
of equity interests in the Persons or assets
sold in the Consolidated Change in Control
on an enterprise value basis and without
giving effect to any reduction of net
Indebtedness (as of the date of receipt
thereof) plus
(B) if applicable, the Fair Value of any direct or
indirect beneficial ownership interest
maintained by any holder of equity interests in
the Persons or any successor entity immediately
after such Consolidated Change in Control in
lieu of the sale or disposition of such
interests for cash; PROVIDED, that, in the
case of a Consolidated Change in Control
occurring as part of a Public Offering, the Fair
Value of any class of equity interests publicly
offered shall be the price at which such
interests are sold to the public in such
Public Offering.
BY
the earnings before interest, tax, depreciation and amortization
of the Persons or the businesses being sold in the Consolidated Change in
Control (determined using the definition of "Adjusted Brink EBITDA" and
replacing references therein to the "Brink Companies" with the Persons or
businesses being sold in such Consolidated Change in Control).
"BOARD" shall mean the Board of Managers of the Parent.
"BRINK CHANGE IN CONTROL" means the initial event or series of
events that does not otherwise constitute a Consolidated Change in Control in
which:
(i) any Persons who are not shareholders of the Company
as of the date hereof shall become the direct or indirect
beneficial owners (within the meaning of Section 13(d) of the
Exchange Act) of equity interests in the
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Company which represent a majority of the voting power of all
classes of equity interests of the Company taken together as one
class, except pursuant to an underwritten Public Offering; or
(ii) there shall occur a sale or other disposition of all
or substantially all of the assets of the Brink Parent, other
than to the Parent and/or to one or more Subsidiaries of the
Parent that are and that remain a corporation, partnership,
association or other business entity of which securities or other
ownership interests representing more than 50% of the equity and
more than 50% of the ordinary voting power or more than 50% of
the general partnership interests are owned by the Parent or any
Subsidiaries of the Parent.
"BRINK COMPANIES" shall mean, collectively, the Brink Parent and
its Subsidiaries.
"BRINK PARENT" shall mean AAS Acquisitions, LLC.
"CALCULATED OPTION VALUE" shall mean the amount determined by
calculating the difference between (a) the quotient determined by dividing (i)
Total Brink Equity Value, as of the Repurchase Price Date, by (ii) the number of
outstanding Options, including all of the Restricted Options, outstanding on a
Fully Diluted Basis on the Repurchase Price Date, less (b) the Option Exercise
Price with respect to such Restricted Option.
"CASH EQUIVALENTS" shall mean (i) United States dollars, (ii) cash
denominated in foreign currencies based upon the exchange rate set forth in the
Wall Street Journal on the relevant date of determination, (iii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than one year from the date of acquisition, (iv) certificates of deposit
with maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year, and overnight bank deposits,
in each case, with any Eligible Institution, (v) commercial paper rated, "P-1,"
"A-1" or the equivalent thereof by Xxxxx'x or S&P, respectively, and in each
case maturing within 180 days after the date of acquisition, (vi) shares of
money market funds that invest solely in United States dollars and securities of
the types described in clauses (iii) through (v), and (vii) demand and time
deposits and certificates of deposit with an Eligible Institution or with
commercial banks insured by the Federal Deposit Insurance Corporation; PROVIDED,
that the face amount of any outstanding uncashed checks written by the Company
or any of its Subsidiaries shall be deducted in the determination of Cash
Equivalents to the extent not otherwise treated as a current liability in any
relevant determination.
"XXXXXX XXXXXX GROUP" shall mean CHP IV, CHI and any other
accounts or funds managed by CHI or any Affiliate of CHI, other than the Parent
and its Subsidiaries.
"CAUSE" shall mean with respect to the Optionholder, (a) the
Optionholder's continued failure to substantially perform the Optionholder's
duties, (b) failure to follow the lawful directions of the Board of Managers of
the Parent or any Subsidiary by whom the Optionholder is then employed, either
directly or indirectly through its Chairman, (c) material, willful acts of
dishonesty, theft or fraud resulting or intending to result in personal gain or
enrichment at the expense of the Parent or any of its Subsidiaries, (d)
commission of a felony, (e)
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a violation of any written policy of the Parent or any of its Subsidiaries
including, but not limited to, the Parent's or any Subsidiaries' by whom the
Optionholder is then employed employment manuals, rules and regulations which
materially and adversely affects the Parent or any of its Subsidiaries by whom
the Optionholder is then employed or could reasonably be expected to materially
and adversely affect the Parent or any of its Subsidiaries by whom the
Optionholder is then employed, or (f) the Optionholder engaging in any act that
is intended, or may reasonably be expected to materially harm the reputation,
business or operations of the Parent or any of its Subsidiaries by whom the
Optionholder is then employed or any member of their respective Boards of
Managers or similar governing bodies or (g) any other material breach of this
Agreement or any other agreement with the Parent or any of its Subsidiaries that
the Optionholder signs in his personal capacity, including, but not limited to,
any non-competition and confidentiality agreement, but excluding the Securities
Purchase Agreement. Prior to a termination for "Cause", the Optionholder shall
be entitled to written notice from the Parent or the Company and ten (10)
business days to cure the deficiency leading to the Cause determination, if such
deficiency is curable. Notwithstanding the foregoing and without limiting the
foregoing in any way, for the avoidance of doubt, the Optionholder shall receive
written notice and ten (10) business days to cure a deficiency under subsections
(a) and (b) hereof. Notwithstanding the foregoing, to the extent that the
Optionholder is subject to an employment agreement with the Parent and/or one of
its Subsidiaries that contains a definition of cause, "Cause" under this
Agreement shall be as defined in such employment agreement.
"CONSOLIDATED CHANGE IN CONTROL" means the initial event or
series of events in which:
(i) any Persons who are not Equityholders as of the date
hereof shall become the direct or indirect beneficial owners
(within the meaning of Section 13(d) of the Exchange Act) of
equity interests in the Parent which represent a majority of the
voting power of all classes of equity interests of the Parent
taken together as one class, except pursuant to an
underwritten Public Offering; or
(ii) there shall occur a sale or other disposition of all
or substantially all of the assets of the Parent, other than to
the Parent and/or to one or more Subsidiaries of the Parent
that are and that remain a corporation, partnership,
association or other business entity of which securities or
other ownership interests representing more than 50% of the
equity and more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are owned by the
Parent or any Subsidiaries of the Parent; or
(iii) so long as no Consolidated Change in Control has
occurred under clauses (i) or (ii) above at such time, CHP IV,
Xxxx X. Xxxxxx or Xxxxxxx X. Xxxxxx shall cease to have the
right to designate and elect a majority of the members of the
Board of Managers of the Parent; or
(iv) a CHP IV Distribution has occurred; or
(v) a Brink Change in Control in which contemporaneously
therewith, there shall occur a sale or other disposition of more
than 50% of the equity
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interests in or all or substantially all of the assets of, all
other businesses of the Parent (including the SportRack and/or
Valley businesses) other than to the Parent and/or to one or
more Subsidiaries of the Parent that are and that remain a
corporation, partnership, association or other business entity
of which securities or other ownership interests representing
more than 50% of the equity and more than 50% of the
ordinary voting power or more than 50% of the general
partnership interests are owned by the Parent or any
Subsidiaries of the Parent.
PROVIDED, that, in no event shall a Consolidated Change in Control be deemed to
occur as a result of the sale or other disposition of the SportRack and/or
Valley businesses in the absence of a contemporaneous Brink Change in Control,
even if such sale or disposition represents all or substantially all of the
assets of the Parent.
"CHI" shall mean Xxxxxx Xxxxxx, Inc., a Delaware corporation.
"CHP IV" shall mean Xxxxxx Xxxxxx Partners IV, L.P., a Delaware
limited partnership
"CHP IV DISTRIBUTION" shall mean the distribution by CHP IV of
all of its equity interests in the Parent (or the securities issued in respect
thereof or in exchange therefor) to its limited partners, other than by reason
of the dissolution, liquidation or termination of CHP IV.
"COMPANY" shall have the meaning set forth in the preamble to
this Agreement.
"DETERMINATION DATE" shall mean the last day of each Measurement
Period; PROVIDED, that in the event of a Brink Change in Control or Consolidated
Change in Control, the "Determination Date" shall mean the date that such Brink
Change in Control or Consolidated Change in Control occurs.
"DISABILITY" shall mean a determination by the Company, in
accordance with applicable law that, as a result of a physical or mental injury
or illness, the Optionholder is unable to perform the essential functions of his
job with or without reasonable accommodation. Notwithstanding the foregoing, to
the extent that the Optionholder is subject to an employment agreement with the
Parent and/or one of its Subsidiaries that contains a definition of disability,
"Disability" under this Agreement shall be as defined in such employment
agreement or if the Optionholder is not subject to an employment agreement with
the Parent and/or one of its Subsidiaries and such Optionholder is covered by a
disability policy covering employees of the Parent and/or the relevant
Subsidiary by whom the Optionholder is then employed, then "Disability" shall be
defined as such term is defined in such policy.
"ELIGIBLE INSTITUTION" means a commercial banking institution
that has combined capital and surplus of not less than $500 million and that is
rated "A" (or higher) according to Xxxxx'x or S&P at the time as of which any
investment or rollover therein is made.
"EMPLOYEE GOOD REASON" shall mean, without the consent of the
Optionholder (a) a reduction in base salary or any agreed upon benefit provided
to the Optionholder; provided that the Parent or any of its Subsidiaries may at
any time or from time to time amend, modify, suspend or terminate any bonus,
incentive compensation or other benefit plan or program (in
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each case, other than base salary) provided to the Optionholder for any reason
and without the Optionholder's consent if such modification, suspension or
termination is consistent with modifications, suspensions or terminations for
other employees of the Parent or any of its Subsidiaries that are on a level
comparable to the Optionholder, (b) a material reduction in the Optionholder's
responsibilities or duties (other than a change in the number or identity of
persons reporting to the Optionholder) or the title of the Optionholder or (c)
the requirement by the Board of Managers of the Parent or any of its
Subsidiaries (or any comparable governing body) that the Optionholder relocate
his residence from the Staphorst, Holland area; PROVIDED, that, the Parent shall
have thirty (30) days after receipt of notice from the Optionholder to cure the
deficiency resulting in the termination with Employee Good Reason.
Notwithstanding the foregoing, to the extent that the Optionholder is subject to
an employment agreement with the Parent and/or one of its Subsidiaries that
contains a definition of good reason or employee good reason, "Employee Good
Reason" under this Agreement shall be as defined in such employment agreement.
"EQUITYHOLDER" means holders of equity interests of the Parent or
any member of the Xxxxxx Xxxxxx Group and their respective Affiliates, but only
to the extent the foregoing hold interests in the Parent, the voting control
over which is vested with an officer, director or senior employee of CHI.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"EXISTING SENIOR CREDIT FACILITY" means the Amended and Restated
Credit Agreement among SportRack LLC, Valley Industries LLC, Brink B.V., various
lenders from time to time party thereto, and General Electric Capital
Corporation as agent for such lenders, as such Amended and Restated Credit
Agreement may be amended, supplemented, or otherwise modified or replaced from
time to time including any refinancing thereof.
"FAIR VALUE" means, on any date specified herein (i) in the case
of Cash Equivalents, the dollar amount thereof, (ii) in the case of a security
admitted for trading on any national securities exchange or quoted in the
over-the-counter market, the Market Price, (iii) in the case of securities or
property subject to a sale agreement, the implied fair market value thereof, to
the extent such value may be clearly extrapolated from the express provisions of
the agreements or instruments governing the sale or disposition of such
securities or property and (iv) in all other cases, the fair market value
thereof as determined in good faith by the Parent.
"FIRST ANNIVERSARY" shall mean December 31, 2005.
"FIRST DAY OF MEASUREMENT PERIOD" shall mean the first day of the
next calendar month immediately following the month of the Starting Date.
"FIRST MEASUREMENT PERIOD" shall mean the period commencing on
the First Day of Measurement Period and ending on the First Anniversary.
"FULLY-DILUTED BASIS" shall mean with respect to any Person, all
outstanding equity interests in such Person, whether or not subject to a
repurchase agreement, and after giving effect to any additional equity interests
of such Person issued or issuable upon the exercise, conversion or exchange of
any options, warrants and other rights to acquire equity
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interests of such Person outstanding, whether or not vested, on or immediately
prior to the Determination Date (or the Repurchase Price Date, in the case of a
determination of Repurchase Price under Section 3 hereof); PROVIDED, HOWEVER,
that with respect to Restricted Options, only those Restricted Options that have
become Type 2 Restricted Options, including any portion of the Type 1 Restricted
Options that have been tested under Section 3(c)(i) and have become Type 2
Restricted Options and any Type 1 Restricted Options only to the extent that
they are being tested under Section 3(c)(i) hereof shall be counted in the
determination of Fully-Diluted Basis.
"GAAP" shall mean U.S. generally accepted accounting principles
Consistently Applied (as such term is defined in the Securities Purchase
Agreement).
"GOVERNMENTAL ENTITY" means any nation or government, any
foreign, federal, state, province, city, town, municipality, county, local or
other political subdivision thereof or thereto and any department, commission,
court or arbitrator of competent jurisdiction, stock exchange board, bureau,
instrumentality, agency, organization, self-regulatory authority or other entity
exercising executive, legislative, judicial, taxing, regulatory,
quasi-governmental or administrative powers or functions of or pertaining to
government.
"INCOME TAXES" means Taxes imposed upon, or measured by, net
income.
"INDEBTEDNESS" means, without duplication, with respect to any
Person and its Subsidiaries (i) all indebtedness for borrowed money, (ii) all
obligations for the deferred purchase price of property and assets or services,
other than those incurred in the ordinary course of business (iii) all
obligations evidenced by notes, bonds, debentures or other similar instruments,
or upon which interest payments are ordinarily made, (iv) all capitalized lease
obligations (including, in the case of the Parent and its Subsidiaries, whether
or not treated as a capitalized lease obligation under GAAP, the aggregate
amount of the unpaid obligations under the lease entered into in connection with
the French Facility Building Sale/Leaseback Transaction (as defined in the
Securities Purchase Agreement)), (v) all obligations under acceptance, standby
letters of credit or similar facilities, (vi) all matured obligations to
purchase, redeem, retire, defease or otherwise make any payment in respect of
any membership interests, shares of capital stock or other ownership or profit
interest or any warrants, rights or options to acquire such membership
interests, shares or such other ownership or profit interest (it being
understood that, for purposes of this definition, redeemable warrants shall not
constitute Indebtedness until the holder of any such warrant is entitled by its
terms to require redemption thereof), (vii) all obligations guaranteeing any
Indebtedness, leases, dividends or other obligations, of any other Person in any
manner, whether directly or indirectly, (viii) all accrued interest of all
obligations referred to in (i) - (vii) and (ix) all obligations referred to in
(i) - (viii) of a third-party secured by any Lien on property or assets;
PROVIDED, that Indebtedness shall exclude all intercompany Indebtedness between
the Brink Companies but shall not exclude Indebtedness owing by any of the Brink
Companies to the Parent or any Subsidiary of the Parent that is not a member of
the Brink Companies; PROVIDED, FURTHER, that the amounts of the "other
non-current assets" specifically referenced in subsection (j) of the definition
of Net Indebtedness in the Securities Purchase Agreement outstanding on any
relevant date of determination arising with respect to the French Facility
Building Sale/Leaseback Transaction (as defined in the Securities Purchase
Agreement), together with accrued and unpaid interest thereon through the
relevant date of determination, shall reduce the amount of Indebtedness in any
relevant
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determination of Indebtedness. For the avoidance of doubt, any unfunded
portion (whether or not recorded in the books and records of the Parent and its
Subsidiaries) of any pension plan of the Parent and its Subsidiaries, whether a
U.S. Benefit Plan covered by Title IV of ERISA or a Foreign Pension Plan, in
each case as defined in the Securities Purchase Agreement, shall not be
considered part of Indebtedness.
"IRR" means the compounded internal rate of return to the Brink
Parent with respect to its investment in the Company and its Subsidiaries
calculated for the period from the Starting Date to any Determination Date,
based on the Original Equity Value, any Subsequent Equity Contribution and the
Total Brink Equity Value (as though such Total Brink Equity Value were paid in
full to the Brink Parent on the relevant Determination Date), based on the
following equation:
Brink Parent Equity Value = ((1 + IRR)N x Original Equity Value)
+ ((1 + IRR)S x Subsequent Equity Contribution) - ((1+IRR)T x dividends,
distributions on equity or redemption proceeds in respect of capital stock or
other equity securities received, directly or indirectly, by the Brink Parent
(excluding in all cases, tax distributions and management fees paid or payable
to the Brink Parent or any other Subsidiary of the Parent that is not a member
of the Brink Group).
where N is the number of whole months from the Starting Date to
the Determination Date, S is the number of whole months from the date of the
applicable Subsequent Equity Contribution by the Brink Parent in the Company or
any of its Subsidiaries, without duplication, to the Determination Date and T is
the number of whole months from the date of such dividend, distribution or
redemption to the Determination Date.
"IRR-BASED OPTIONS" shall mean 3,625 of the Restricted Options
acquired by the Optionholder.
"IRR TARGET" shall mean, with respect to 1,208 Restricted
Options, an IRR of 1.5309470% per month from the Starting Date to the
Determination Date and, with respect to 2,417 Restricted Options, an IRR of
1.8769265% per month from the Starting Date to the Determination Date; provided
that, with respect to the IRR Based Options that become Type 2 Restricted
Options on the basis of achievement of a 1.8769265% per month IRR, to the extent
the IRR as of the Determination Date, is more than 1.5309470% per month and less
than 1.8769265% per month, such IRR Based Options shall proportionately become
Type 2 Restricted Options using a straight line interpolation following Appendix
A.
"LIEN" means any preemptive right, mortgage, restriction on
voting or transfer or any pledge, lien (statutory or otherwise), usufruct,
hypothetical assignment for security, "claim" (as such term is used in this
context outside of the United States), preference priority charge, hypothecary,
encumbrance or security interest of any kind.
"MANAGEMENT AGREEMENT" means the management agreement among the
Parent, Advanced Accessory Systems, LLC and CHI, as may be amended, modified or
supplemented from time to time.
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"MARKET PRICE" means, on any date specified herein with respect
to any securities, the amount per share of the securities, equal to (i) the last
reported sale price of such securities, regular way, on such date or, in case no
such sale takes place on such date, the average of the closing bid and asked
prices thereof regular way on such date, in either case as officially reported
on the principal national securities exchange on which such securities are then
listed or admitted for trading, (ii) if such securities are not then listed or
admitted for trading on any national securities exchange but are designated as a
national market system security by the National Association of Securities
Dealers ("NASD"), the last reported trading price of such securities on such
date, or (iii) if there shall have been no trading on such date or if the
securities are not so designated, the average of the closing bid and asked
prices of such securities on such date as shown by the NASD automated quotation
system.
"MEASUREMENT PERIOD" shall mean any of the First Measurement
Period, the Second Measurement Period and the Third Measurement Period, as
applicable.
"OPTION EXERCISE PRICE" shall mean (euro)176.01 per Restricted
Option.
"OPTIONS" shall mean outstanding options that may be exercised to
purchase Shares of the Company.
"ORIGINAL EQUITY VALUE" means (euro)36,460,000.
"PARENT" shall mean the Company's indirect parent, CHAAS
Holdings, LLC.
"PERSON" shall mean any individual, partnership, corporation,
trust, unincorporated association or other entity which is recognized as having
legal personality.
"PUBLIC OFFERING" shall mean a public offering of equity
interests of the Parent or any of its Subsidiaries or any of their successors.
"REPURCHASE PRICE DATE" shall have the meaning set forth in
Section 3(a) hereof.
"REPURCHASE RESTRICTIONS" shall have the meaning set forth in
Section 3(d) of this Agreement.
"RESTRICTED OPTIONS" shall mean (a) all Options purchased by the
Optionholder pursuant to the Brink Subscription Agreement and (b) all equity
interests issued with respect to the Options referred to in clause (a) above in
connection with any conversion, merger, consolidation or recapitalization or
other reorganization affecting the Options.
"RETIREMENT" shall mean the termination of the Optionholder's
employment with the Parent (if the Optionholder is then employed by the Parent)
or any of the Parent's Subsidiaries by whom the Optionholder is then employed
(other than due to termination for Cause, Disability or death) after
Optionholder has attained age sixty-three (63), unless retirement from less than
all of the Parent and its Subsidiaries is otherwise agreed to or requested by
the Parent.
"SECOND ANNIVERSARY" shall mean December 31, 2006.
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"SECOND MEASUREMENT PERIOD" shall mean the period commencing on
the day immediately after the First Anniversary and ending on the Second
Anniversary.
"SECURITIES PURCHASE AGREEMENT" shall mean the Securities
Purchase Agreement dated as of April 15, 2003, among Advanced Accessory Systems,
LLC, each of the "Sellers" on Annex A attached thereto and the Parent.
"SELLERS" shall have the meaning ascribed to such term under the
Securities Purchase Agreement.
"SHARES" means the Company's ordinary shares and any other
equity interests of the Company, the holders of which have the right, without
limitation as to amount, either to all or to a share of the balance of current
dividends and liquidating dividends after the payment of dividends and
distributions on any equity interests entitled to a preference.
"STARTING DATE" shall mean June 30, 2004.
"SUBSEQUENT EQUITY CONTRIBUTION" shall mean, without duplication,
the amount of equity invested in the Brink Parent, the Company or any
Subsidiaries of the Company, directly or indirectly, at any time after the
Starting Date.
"SUBSIDIARY" means any Person more than 50% of the outstanding
voting or equity securities of which, or any partnership, joint venture or other
entity more than 50% of the total equity or other economic interest of which, is
directly or indirectly owned by another Person.
"TAX" (or, when referring to more than one Tax, the term "Taxes")
includes any Federal, state, provincial, local or foreign net income, gross
income, net receipts, gross receipts, profit, capital, severance, property,
production, sales, use, license, excise, franchise, employment, payroll,
withholding, alternative or add-on minimum, AD VALOREM, value-added, transfer,
stamp, employment or other tax, custom, duty, fee or other governmental charge
of any kind, together with any interest, fine, penalty, addition to tax or
additional amount imposed with respect thereto.
"TERMINATION DATE" shall mean the date on which the
Optionholder's employment with the Parent (if the Optionholder is then employed
by the Parent) or any of the Parent's Subsidiaries by whom the Optionholder is
then employed terminates (unless termination from less than all of the Parent
and its Subsidiaries is otherwise agreed to or requested by the Parent).
"THIRD ANNIVERSARY" shall mean December 31, 2007.
"THIRD MEASUREMENT PERIOD" shall mean the period commencing on
the day immediately after the Second Anniversary and ending on the Third
Anniversary.
"TIME-BASED OPTIONS" shall mean 50.00% of the Restricted Options
purchased by the Optionholder.
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"TOTAL BRINK EQUITY VALUE" shall mean the equity value of the
Brink Companies, as of the Determination Date (or the Repurchase Price Date, in
the case of a determination of Repurchase Price under Section 3 hereof),
calculated as follows:
(i) In the event that no Brink Change in Control or
Consolidated Change in Control has occurred, the following:
(A) (5.6 x Adjusted Brink EBITDA for the relevant
Measurement Period) less
(B) all principal, interest, fees and premium, if any
(to the extent such premium would be payable on the
relevant Determination Date (or the Repurchase Price
Date, in the case of a determination of Repurchase
Price under Section 3 hereof)), on all Indebtedness of
the Brink Companies recorded as such on the books and
records of the Brink Companies (including any
Indebtedness owing by the Brink Companies to Parent or
any of its Subsidiaries (other than the Brink
Companies) including, without limitation, any
Indebtedness represented by capital leases accrued and
payable as of the relevant Determination Date (or the
Repurchase Price Date, in the case of a determination
of Repurchase Price under Section 3 hereof), plus
(C) an amount equal to the aggregate cash receivable
by the Brink Companies upon exercise, conversion or
exchange of all outstanding options, warrants and other
securities convertible into or exchangeable for equity
interests of the Brink Companies, which have not been
so exercised, converted or exchanged, as of the
relevant Determination Date or Repurchase Price Date,
plus
(D) all Cash Equivalents of the Brink Companies as
of the relevant Determination Date (or the Repurchase
Price Date, in the case of a determination of
Repurchase Price under Section 3 hereof), excluding
restricted cash that is not treated as a current asset
under GAAP, plus
(F) without duplication, an amount equal to all net
cash payments from employees of the Brink Companies
under notes issued by such employees to the Brink
Companies in connection with such employee's
acquisition of equity interests in the Brink Companies.
(ii) In the event of a Brink Change in Control, the following:
(A) the Fair Value of the consideration received, without
duplication, for the sale of the equity interests
sold by all holders of equity interests in the Brink
Companies (as of the date of receipt thereof) in such
Brink Change in Control plus
11
(B) if applicable, the Fair Value of any direct or
indirect beneficial ownership interest maintained by
any holder of equity interests in the Brink Companies
or any successor entity immediately after such Brink
Change in Control in lieu of the sale or disposition of
such interests for cash; PROVIDED, that, in the case of
a Brink Change in Control occurring as part of a Public
Offering, the Fair Value of any class of equity
interests publicly offered shall be the price at which
such interests are sold to the public in such Public
Offering.
(iii) In the event of a Consolidated Change in Control,
whether involving the Brink Companies, together with one or more but not all of
the businesses of the Parent or all of the businesses of the Parent on a
consolidated basis, the following:
(A) The Attributed Consolidated EBITDA Multiple
multiplied by the trailing twelve month
Adjusted Brink EBITDA less
(B) all principal, interest, fees and premium, if any (to
the extent such premium would be payable on the
relevant Determination Date (or the Repurchase Price
Date, in the case of a determination of Repurchase
Price under Section 3 hereof)), on all Indebtedness of
the Brink Companies recorded as such on the books and
records of the Brink Companies (including any
Indebtedness owing by the Brink Companies to Parent or
any of its Subsidiaries (other than the Brink
Companies), including, without limitation, any
Indebtedness represented by capital leases accrued and
payable as of the relevant Determination Date (or the
Repurchase Price Date, in the case of a determination
of Repurchase Price under Section 3 hereof), plus
(C) an amount equal to the aggregate cash receivable by the
Brink Companies upon exercise, conversion or exchange
of all outstanding options, warrants and other
securities convertible into or exchangeable for equity
interests of the Brink Companies, which have not been
so exercised, converted or exchanged, as of the
relevant Determination Date or Repurchase Price Date,
plus
(D) all Cash Equivalents of the Brink Companies as of
the relevant Determination Date (or the Repurchase
Price Date, in the case of a determination of
Repurchase Price under Section 3 hereof), excluding
restricted cash that is not treated as a current asset
under GAAP, plus
(E) without duplication, an amount equal to all net
cash payments from employees of the Brink Companies
under notes issued by such employees to the Brink
Companies in connection with such employee's
acquisition of equity interests in the Brink Companies.
12
"TYPE 1 RESTRICTED OPTIONS" shall mean Restricted Options that
the Company may repurchase in accordance with the terms and conditions hereof at
the Repurchase Price specified in Section 2(a) because such Restricted Options
have not become Type 2 Restricted Options in accordance with Section 3(c);
PROVIDED, HOWEVER, that notwithstanding any other provision of this Agreement to
the contrary, in the event that a Termination Event occurring at any time
results from termination of the Optionholder's employment by the Company or any
of its Subsidiaries for Cause or termination by the Optionholder of the
Optionholder's employment with the Company (if the Optionholder is then employed
by the Company) or any of its Subsidiaries by whom the Optionholder is then
employed (unless termination from less than all of the Company and its
Subsidiaries is otherwise agreed to or requested by the Company) without
Employee Good Reason (and not due to death, Disability or Retirement), all of
the Restricted Options, whether or not previously converted to Type 2 Restricted
Options, shall be deemed to be Type 1 Restricted Options.
"TYPE 2 RESTRICTED OPTIONS" shall mean Restricted Options as to
which the Company's right to repurchase is at the Repurchase Price specified in
Section 2(b) because the Company's right to repurchase at the Repurchase Price
specified in Section 2(a) has lapsed pursuant to Section 3(c), subject to the
proviso set forth in the definition of "Type 1 Restricted Options" relating to a
Termination Event resulting from termination by the Company or any of its
Subsidiaries of the Optionholder's employment for Cause or by the Optionholder
of the Optionholder's employment with the Company (if the Optionholder is then
employed by the Company) or any of the Subsidiaries by whom the Optionholder is
then employed without Employee Good Reason (unless termination from less than
all of the Company and its Subsidiaries is otherwise agreed to or requested by
the Company).
"YEARLY ALLOCABLE RESTRICTED OPTIONS" shall mean one-third (1/3)
of the IRR-Based Options; PROVIDED, HOWEVER, that to the extent that the Yearly
Allocable Restricted Options for any Measurement Period exceeds the Yearly
Restricted Options for such period, then such excess shall be added to the
Yearly Allocable Restricted Options for the subsequent Measurement Period.
"YEARLY RESTRICTED OPTIONS" shall mean the maximum amount of the
Yearly Allocable Restricted Options that become Type 2 Restricted Options in
respect of the relevant Measurement Period in accordance with Section
3(c)(i)(B)(II) of this Agreement.
2. OPTION TO REPURCHASE THE RESTRICTED OPTIONS UPON TERMINATION
OF THE OPTIONHOLDER'S EMPLOYMENT.
(a) REPURCHASE OF TYPE 1 RESTRICTED OPTIONS. If the
Optionholder's employment with the Parent (if the Optionholder is then employed
by the Parent) or any of the Parent's Subsidiaries by whom the Optionholder is
then employed terminates for any reason whatsoever, unless termination from less
than all of the Parent and its Subsidiaries is otherwise agreed to or requested
by the Parent or the Company (the "TERMINATION EVENT"), the Company shall have
the option (exercisable at any time within ninety (90) days of the Termination
Event by written notice to the Optionholder) to repurchase (or cause its
designee to repurchase) from the Optionholder any or all of the Type 1
Restricted Options, at cost, without interest, initially paid by the
Optionholder for the Restricted Options.
13
(b) REPURCHASE OF TYPE 2 RESTRICTED OPTIONS. If the
Optionholder's employment with the Parent (if the Optionholder is then employed
by the Parent) or any of the Parent's Subsidiaries by whom the Optionholder is
then employed terminates, the Company shall have the option (exercisable at any
time within ninety (90) days of the Termination Event by written notice to the
Optionholder) to repurchase from the Optionholder (or cause its designee to
repurchase) any or all of the Type 2 Restricted Options as follows:
(i) Other than in connection with a Brink Change
in Control or a Consolidated Change in Control in the event that
the Termination Event results from a voluntary termination of the
Optionholder's employment by the Optionholder without Cause and
without Employee Good Reason, the Repurchase Price per Restricted
Option shall be equal to the cost, without interest, initially
paid by the Optionholder for the Restricted Options.
(ii) Other than in connection with a Brink Change
in Control or a Consolidated Change in Control in the event that
the Termination Event results from termination of the
Optionholder's employment by the Parent or any of its
Subsidiaries for Cause the Repurchase Price per Restricted Option
shall be equal to the cost, without interest, initially paid by
the Optionholder for the Restricted Options.
(iii) Other than in connection with a Brink Change
in Control or a Consolidated Change in Control in the event that
a Termination Event occurring at any time results from
termination of the Optionholder's employment at the request of
the Company but without Cause the Repurchase Price per Restricted
Option shall be the Calculated Option Value of the Type 2
Restricted Options as of the Repurchase Price Date.
(iv) In the event the Optionholder's employment
terminates in connection with a Brink Change in Control or a
Consolidated Change in Control, the Company shall have the right
to repurchase Restricted Options only if such Restricted Options
have not been sold in the Brink Change in Control or the
Consolidated Change in Control in accordance with and subject to
the compliance with the requirements of Section 2(d) or 2(e)
hereof.
(c) REPURCHASE OF RESTRICTED OPTIONS. The repurchase of
Restricted Options by the Company pursuant to Section 2(a) or 2(b) shall be
consummated (the "REPURCHASE EVENT") on the date designated by the Company in a
written notice by the Company to the Optionholder of the Company's exercise of
its option pursuant to Section 2(a), which date shall not be more than sixty
(60) days after the date of such written notice. The Repurchase Event shall take
place at the Company's executive offices. At the Repurchase Event, the Company
shall pay the Repurchase Price (as defined below) in the manner specified in
Section 3 hereof and, without any further action by the Optionholder, such
Restricted Options shall be assigned to the Company or its nominee, free and
clear of any liens or encumbrances. The Company shall be entitled to receive
representations and warranties with respect to title, authority and liens and
other documentation from the Optionholder, in connection with the repurchase of
such Restricted Options.
14
(d) TREATMENT OF RESTRICTED OPTIONS IN CONNECTION WITH A BRINK
CHANGE IN CONTROL.
(i) Notwithstanding anything herein to the
contrary, in the event of a Brink Change in Control, the Company
shall deliver written notice to the Optionholder not later than
five (5) days prior to the consummation of such Brink Change in
Control (the "BRINK CHANGE IN CONTROL NOTICE"), specifying
the material terms thereof. In the event the Brink Change in
Control involves a sale of the equity interests of the Company,
then the Optionholder shall have the right and the obligation to,
at the option of the Company sell the Options to the ultimate
purchaser or sell the Options to the Company or its designee on
the same terms, sell the same percentage of Type 2 Restricted
Options (out of all Type 2 Restricted Options held by the
Optionholder, including those that become Type 2 Restricted
Options as a result of the Brink Change in Control) held by
Optionholder equal to the percentage of the total equity
interests of the Company actually being sold in such Brink Change
in Control, upon the same terms and conditions and
purchase price as the Persons selling such equity interests in
the proposed Brink Change in Control (after taking into account a
reduction in proceeds for the Option Exercise Price), and the
Optionholder shall comply and sell such Type 2 Restricted
Options. If the Brink Change in Control does not involve the sale
of equity interests of the Company, then, at the same time as the
Brink Change in Control occurs, the Company (or its designee)
shall be required to repurchase, and the Optionholder shall be
required to sell to the Company (or its designee) all of the Type
2 Restricted Options held by the Optionholder at the Calculated
Option Value. If the Brink Change in Control does not involve the
sale of equity interests of the Company (and the Optionholder
shall not have exchanged the Type 2 Restricted Options for
securities of the Person actually being sold in accordance with
clause (iv) below), then, at the same time as the Brink Change in
Control occurs, the Company (or its designee) shall be required
to repurchase, and the Optionholder shall be required to sell to
the Company (or its designee) all of the Type 2 Restricted
Options held by the Optionholder at the Calculated Option Value.
(ii) In the event of a Brink Change in Control the
Company shall have the option (exercisable at the same time as
the Brink Change in Control occurs by written notice to the
Optionholder) to repurchase (or cause its designee to repurchase)
from the Optionholder any or all of the Type 1 Restricted
Options, at cost, without interest, initially paid by the
Optionholder for the Restricted Options.
(iii) The closing of any Brink Change in Control
shall be held at such time and place as the Company shall
reasonably specify. At or at such time after the closing of the
Brink Change in Control, the Optionholder shall deliver
certificates or such other instruments representing the
Restricted Options to be sold (whether to the purchaser in such
Brink Change in Control or the Company (or its designee)), duly
endorsed for transfer and accompanied by all requisite transfer
taxes, if any, against payment of the purchase price therefor,
and the Type
15
2 Restricted Options to be transferred shall be free and
clear of any liens, charges, claims or encumbrances (other
than restrictions imposed pursuant to applicable law and this
Agreement), and the Optionholder shall so represent and warrant.
The Optionholder shall further represent and warrant that it is
the record and beneficial owner of such Type 2 Restricted Options
and make such additional representations and warranties as shall
be customary in transactions of a similar nature.
(iv) Notwithstanding anything in this Section 2(d)
to the contrary, there shall be no liability on the part of
Company (or its Affiliates) to the Optionholder in the event the
Brink Change in Control does not occur even if the provisions of
this Section 2(d) have been triggered.
(v) In the event the Company notifies the
Optionholder in writing, indicating the number of shares to be
issued under the Type 2 Restricted Options, that, to facilitate a
Brink Change in Control, the exercise of the Restricted Options
and the sale of the Shares issuable upon exercise thereof (or
exchange of Type 2 Restricted Options for equity securities of
the Person that is actually being sold in such Brink Change in
Control of equivalent value, so long as such exchange does not
increase the tax burden on the Optionholder), is necessary or
advisable, then the Optionholder shall so exercise such Type 2
Restricted Options (or exchange such Options) in accordance with
reasonable written instructions established by the Company;
provided that the Shares so issuable (or securities issued in
exchange for the Restricted Options) shall be subject to the
terms and conditions of this Agreement, including the right of
repurchase in favor of the Company (or its designee) and the
Optionholder's obligation to participate in any Brink Change in
Control on the terms set forth in this Section 2(d). The exercise
of the Type 2 Restricted Options will be confirmed by the
Optionholder to the Company in writing, indicating the same
number of shares to be issued under the Type 2 Restricted Options
as mentioned in the notification of the Company as referred to in
the first sentence of this sub section (v). The Parties
acknowledge and agree that certain formalities under Netherlands
law are applicable if the Type 2 Restricted Options will be
exercised, the Type 2 Restricted Options will be exchanged or
shares issued under the Type 2 Restricted Options will be
repurchased and the parties agree to comply with such formalities
as necessary to effectuate the terms of this Agreement.
(e) TREATMENT OF RESTRICTED OPTIONS IN CONNECTION WITH A
CONSOLIDATED CHANGE IN CONTROL.
(i) Notwithstanding anything herein to the
contrary, in the event of a Consolidated Change in Control, the
Company shall deliver written notice to the Optionholder not
later than five (5) days prior to the consummation of such
Consolidated Change in Control (the "CONSOLIDATED CHANGE IN
CONTROL NOTICE"), specifying the material terms thereof. In the
event the Consolidated Change in Control involves a sale of the
equity interests of the Company, then the Optionholder shall have
the right and the obligation to, at the option of the
16
Company sell the Options to the ultimate purchaser or sell the
Options to the Company or its designee on the same terms, sell
the same percentage of Type 2 Restricted Options (out of all Type
2 Restricted Options held by the Optionholder, including those
that become Type 2 Restricted Options as a result of the
Consolidated Change in Control) held by Optionholder equal to the
percentage of the total equity interests of actually being sold
in such Consolidated Change in Control, upon the same terms and
conditions and purchase price as the Persons selling such equity
interests in the proposed Consolidated Change in Control (after
taking into account a reduction in proceeds for the Option
Exercise Price), and the Optionholder shall comply and sell such
Type 2 Restricted Options. If the Consolidated Change in Control
does not involve the sale of equity interests of the Company (and
the Optionholder shall not have exchanged the Type 2 Restricted
Options for securities of the Person actually being sold in
accordance with clause (iv) below), then, at the same time as the
Consolidated Change in Control occurs, the Company (or its
designee) shall be required to repurchase, and the Optionholder
shall be required to sell to the Company (or its designee) all of
the Type 2 Restricted Options held by the Optionholder at the
Calculated Option Value.
(ii) In the event of a Consolidated Change in
Control the Company shall have the option (exercisable at the
same time as the Consolidated Change in Control occurs by written
notice to the Optionholder) to repurchase (or cause its designee
to repurchase) from the Optionholder any or all of the Type 1
Restricted Options, at cost, without interest, initially paid by
the Optionholder for the Restricted Options.
(iii) The closing of any Consolidated Change in
Control shall be held at such time and place as the Company shall
reasonably specify. At or at such time after the closing of the
Consolidated Change in Control, the Optionholder shall deliver
certificates or such other instruments representing the Type 2
Restricted Options to be sold (whether to the purchaser in such
Consolidated Change in Control or the Company (or its designee)),
duly endorsed for transfer and accompanied by all requisite
transfer taxes, if any, against payment of the purchase price
therefor, and the Type 2 Restricted Options to be transferred
shall be free and clear of any liens, charges, claims or
encumbrances (other than restrictions imposed pursuant to
applicable law and this Agreement), and the Optionholder shall so
represent and warrant. The Optionholder shall further represent
and warrant that it is the record and beneficial owner of such
Type 2 Restricted Options and make such additional
representations and warranties as shall be customary in
transactions of a similar nature.
(iv) Notwithstanding anything in this Section 2(e)
to the contrary, there shall be no liability on the part of
Company (or its Affiliates) to the Optionholder in the event the
Consolidated Change in Control does not occur even if the
provisions of this Section 2(d) have been triggered.
17
(v) In the event the Company notifies the
Optionholder in writing, indicating the number of shares to be
issued under the Type 2 Restricted Options, that, to facilitate a
Consolidated Change in Control, the exercise of the Type 2
Restricted Options and the sale of the Shares issuable upon
exercise thereof (or the exchange of Type 2 Restricted Options
for equity securities of the Person that is actually being sold
in such Consolidated Change in Control of equivalent value, so
long as such exchange does not increase the tax burden on the
Optionholder) is necessary or advisable, then the Optionholder
shall so exercise such Restricted Options (or exchange such
Options) in accordance with reasonable written instructions
established by the Company; provided that the Shares so issuable
(or the securities issued in exchange for the Restricted
Options) shall be subject to the terms and conditions of this
Agreement, including the right of repurchase in favor of the
Company (or its designee) and the Optionholder's obligation to
participate in any Consolidated Change in Control on the terms
set forth in this Section 2(e). The exercise of the Type 2
Restricted Options will be confirmed by the Optionholder to the
Company in writing, indicating the same number of shares to be
issued under the Type 2 Restricted Options as mentioned in the
notification of the Company as referred to in the first sentence
of this sub section (v). The Parties acknowledge and agree that
certain formalities under Netherlands law are applicable if the
Type 2 Restricted Options will be exercised, the Type 2
Restricted Options will be exchanged or shares issued under the
Type 2 Restricted Options will be repurchased and the parties
agree to comply with such formalities as necessary to effectuate
the terms of this Agreement.
3. REPURCHASE, AND REPURCHASE PRICE FOR THE RESTRICTED OPTIONS;
RIGHTS OF HOLDERS OF RESTRICTED OPTIONS.
(a) REPURCHASE PRICE DATE. The repurchase price to be paid by the
Company for the Restricted Options pursuant to Section 2 hereof (the "REPURCHASE
PRICE") shall, except in the case of a Brink Change in Control, where the
repurchase price shall be governed by Sections 2(d) and 3(f), and in the case of
a Consolidated Change in Control, where the repurchase price shall be governed
by Sections 2(e) and 3(f), be determined as of the last day of the quarter
immediately preceding the Termination Date (the "REPURCHASE PRICE DATE").
(b) GOOD FAITH DETERMINATION. All determinations with respect to
the Repurchase Price or any other matters arising out of or relating to this
Agreement shall be made in good faith by the Board in accordance with this
Agreement.
(c) DETERMINATION OF TYPE 1 RESTRICTED OPTIONS AND TYPE 2
RESTRICTED OPTIONS. All Restricted Options shall initially be Type 1 Restricted
Options. Restricted Options shall only become Type 2 Restricted Options in
accordance with the terms and conditions of Section 3(c)(i) subject to the
proviso set forth in the definition of "Type 1 Restricted Options" relating to a
Termination Event resulting from termination by the Parent or any of the
Subsidiaries by whom the Optionholder is then employed for Cause or termination
by the Optionholder of his employment by the Parent (if the Optionholder is then
employed by the Parent) or any of Parent's Subsidiaries by whom the Optionholder
is then employed without Employee Good Reason (other
18
than because of death, Disability or Retirement), unless termination from less
than all of the Company and its Subsidiaries is otherwise agreed to or requested
by the Company.
(i) (A) Subject to the ordering rule set forth in
the last sentence of this Section 3(c)(i)(A), in the event of a
Brink Change in Control or a Consolidated Change in Control, all
Time-Based Options that have not yet converted to Type 2
Restricted Options shall automatically become Type 2 Restricted
Options and the IRR -Based Options, to the extent not already
Type 2 Restricted Options, shall become Type 2 Restricted Options
to the extent that the Brink Parent achieves an IRR at least
equal to the IRR Target in connection with the Brink Change in
Control or a Consolidated Change in Control. The IRR shall be
computed by first assuming that Type 1 Restricted Options become
Type 2 Restricted Options on a Restricted Option-by-Restricted
Option basis, such that Type 1 Restricted Options shall actually
become Type 2 Restricted Options only with respect to that
portion of the Restricted Options that permit the IRR Target to
be satisfied.
(B) Notwithstanding Section 3(c)(i)(A), as
long as a Brink Change in Control or Combined Change in
Control has not occurred on or before the Third Anniversary,
the Restricted Options shall become Type 2 Restricted Options
as follows:
(I) one third (1/3) of the Time-Based Options shall
automatically become Type 2 Restricted Options on each of
the First, Second and Third Anniversaries, respectively;
(II) the Yearly Allocable Restricted Options shall,
subject to the ordering rule set forth in the last
sentence of this Section 3(c)(i)(B)(II), become Type 2
Restricted Options as of each of the First, Second and
Third Anniversaries respectively, to the extent that Brink
Parent achieves an IRR at least equal to the IRR Target
as of such Determination Date. Furthermore, the IRR shall
be computed by first assuming that Type 1 Restricted
Options become Type 2 Restricted Options on a Restricted
Option-by-Restricted Option basis, such that Type 1
Restricted Options shall actually become Type 2
Restricted Options only with respect to that portion of
the Restricted Options that permit the IRR target to be
satisfied; PROVIDED, THAT, any Yearly Allocable Restricted
Options that do not become Type 2 Restricted Options by
the Third Anniversary shall never become Type 2 Restricted
Options.
(ii) For the avoidance of doubt, any of the Type 1
Restricted Options that have not become Type 2 Restricted Options
as of the Termination Date in accordance with Section 3(c)(i) may
never become Type 2 Restricted Options and shall be deemed
cancelled and forfeited without the action of any person.
The Company shall be entitled to deduct from such Repurchase
Price any taxes or other charges it is required to withhold or deduct pursuant
to applicable law.
19
(d) MANNER OF PAYMENT. The Company shall pay the Repurchase Price
for the Restricted Options in cash. Notwithstanding anything in the immediately
preceding sentence to the contrary, the Company may pay the Repurchase Price for
such Restricted Options by offsetting amounts outstanding under any indebtedness
or obligations owed by the Optionholder to the Company or any other Subsidiary
of the Parent, including the promissory notes referenced in the Brink
Subscription Agreement. Notwithstanding any other provision in this Agreement,
the obligation of the Company to pay the Repurchase Price, other than in
connection with a Brink Change in Control or a Consolidated Change in Control,
shall be subject to (x) the applicable restrictions under applicable law and
those contained in (i) the constituent documents of the Company and (ii) the
agreements, indentures or other instruments reflecting Indebtedness of the
Parent and its Subsidiaries (each as amended from time to time, and, for the
avoidance of doubt, including any credit agreements or other agreements
resulting from a refinancing thereof, collectively, the "FACILITIES AGREEMENTS")
and (y) the absence of a default or event of default under the Facilities
Agreements (without giving effect to any waiver thereof by the lenders party
thereto, unless otherwise expressly agreed to for purposes of this Agreement by
the Parent) (with the limitations referred to in clauses (x) and (y) of this
Section 3(d) being herein called the "REPURCHASE RESTRICTIONS"). In the event
that the Company is not able to repurchase the Restricted Options or any portion
thereof as a result of any Repurchase Restriction, the Company's option to
repurchase such Restricted Options shall be extended so as to expire ninety (90)
days after all Repurchase Restrictions have lapsed.
(e) RIGHTS OF HOLDERS OF RESTRICTED OPTIONS. The Optionholder
acknowledges and agrees that it shall have no rights as an equity holder of the
Company with respect to the Restricted Options, including any rights to
distributions, allocations of income and losses or other rights under the
constituent documents of the Company.
(f) DETERMINATIONS. Notwithstanding anything herein to the
contrary, all determinations made hereunder with respect to the IRR-Based
Options shall be made based on and following completion of the consolidated
annual audited financial statements of the Company for the relevant period and,
to the extent any IRR-Based Options shall be determined to have become Type 2
Restricted Options based on the calculations set forth in such financial
statements, such IRR-Based Options shall be deemed to have Type 2 Restricted
Options effective as of December 31 of the calendar year to which such financial
statements relate.
(g) CURRENCY. All determinations hereunder shall be made in
Euros, except that to the extent that payments made by the Optionholder in any
Brink Change in Control or Consolidated Change in Control are denominated in
another currency, then determinations shall be made in such currency and
converted as of the relevant determination date on the basis of the exchange
rate set forth in the Wall Street Journal on such date.
4. ADJUSTMENTS. If at any time and from time to time after the
date hereof, the Existing Senior Credit Facility is refinanced or replaced in
such a manner so as to (i) increase the principal amount outstanding under the
term and revolving loan Indebtedness thereunder attributable to the Brink
Companies on the date of refinancing by more than 5% from the amounts
outstanding on that date, the Company shall issue to the Optionholder additional
Restricted Options which shall be subject to the terms of this Agreement so that
the implied value of the Restricted Options as of the Starting Date shall not be
adversely affected by the
20
increase in Indebtedness attributable to the Brink Companies in connection with
the refinancing and (ii) decrease the principal amount outstanding under the
term and revolving loan Indebtedness thereunder attributable to the Brink
Companies on the date of refinancing by more than 5% from the amounts
outstanding on that date, the Optionholder shall return to the Company that
number of Restricted Options as are necessary to ensure that the implied value
of the Restricted Options as of the Starting Date shall not be improved as a
result of the reduction in Indebtedness attributable to the Brink Companies in
connection with the refinancing.
5. TERM AND EXERCISE OF OPTIONS. The Company and the Optionholder
agree that the term of the Options shall be indefinite. The Optionholder agrees
that the Options shall not be exercisable for Shares, except and only to the
extent expressly provided in this Agreement.
6. REMEDIES. The parties hereto shall be entitled to enforce
their rights under this Agreement specifically to recover damages by reason of
any breach of any provision of this Agreement and to exercise all other rights
existing in their favor. The Optionholder acknowledges and agrees that money
damages would not be an adequate remedy for any breach of his or her obligations
under this Agreement and that the Company may, in its sole discretion, apply to
any court of law or equity of competent jurisdiction for specific performance
and/or injunctive relief (without posting bond or other security) in order to
enforce or prevent any violation of the provisions of this Agreement.
7. AMENDMENT. Except as otherwise provided herein, any provision
of this Agreement may be amended or waived only with the prior written consent
of the Optionholder and the Company.
8. SUCCESSORS AND ASSIGNS. All covenants and agreements contained
in this Agreement by or on behalf of any of the parties hereto shall bind and
inure to the benefit of the respective successors and permitted assigns of the
parties hereto whether so expressed or not.
9. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
10. COUNTERPARTS. This Agreement may be executed in two (2) or
more counterparts, each of which shall constitute an original, but all of which
taken together shall constitute one and the same Agreement.
11. DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
12. GOVERNING LAW. This Agreement, and the legal relations
between the parties hereto, shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements executed and to
be performed solely within such state without regard to conflicts of laws
principles.
21
13. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when (a) delivered by
hand, (b) transmitted by prepaid cable, telex or telecopier (provided that a
copy is sent at about the same time by registered mail, return receipt
requested), or (c) three (3) days after mailing, if sent by Express Mail, Fed Ex
or other express delivery service to the addressee at the following addresses or
telecopier numbers (or to such other address or telecopier number as a party may
specify by notice given to the other party pursuant to this provision):
If to the Optionholder, to:
At his address as set forth on the books and records of the
Company.
If to the Company, to:
Brink International X.X.
Xxxxxxx 00, 0000 XX Staphorst
Xxxxxxxxxxxx 0, 0000 XX
Xxxxxxxxx, Xxx Xxxxxxxxxxx
Attention: Chief Financial Officer
Telecopier No: 000-00 (0)000 000 000
with copies to:
CHAAS Holdings, LLC
c/o Xxxxxx Xxxxxx, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Xxxxxx Xxxxx
Telecopier No.: (000) 000-0000
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx, Esq. and Xxxxxx Xxxxxxxxx, Esq.
Telecopier No.: (000) 000-0000
14. JURISDICTION. Any legal action or proceeding with respect to
this Agreement may be brought in the courts of the State of New York or of the
United States of America for the Southern District of New York and, by execution
and delivery of this Agreement, the Optionholder hereby accepts for himself and
in respect of his property, generally and unconditionally, the jurisdiction of
the aforesaid courts. The Optionholder further irrevocably consents to the
service of process out of any of the aforementioned courts in any action or
proceeding by the mailing of copies thereof by guaranteed overnight courier to
the Optionholder at his address set forth in Section 13 hereof, such service to
become effective seven (7) days after such mailing. Nothing herein shall affect
the right of the Company to serve process in any other
22
manner permitted by law or to commence legal proceedings or otherwise proceed
against the Optionholder in any other jurisdiction. The Optionholder hereby
irrevocably waives any objection which he may now or hereafter have to the
laying of venue of any of the aforesaid actions or proceedings arising out of or
in connection with this Agreement brought in the courts referred to above and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
15. WAIVER OF JURY TRIAL. The parties hereto each waive their
respective rights to a trial by jury of any claim or cause of action based upon
or arising out of or related to this Agreement or the transactions contemplated
hereby in any action, proceeding or other litigation of any type brought by any
of the parties against any other party or parties, whether with respect to
contract claims, tort claims, or otherwise. The parties hereto each agree that
any such claim or cause of action shall be tried by a court trial without a
jury. Without limiting the foregoing, the parties further agree that their
respective right to a trial by jury is waived by operation of this Section 15 as
to any action, counterclaim or other proceeding which seeks, in whole or in
part, to challenge the validity or enforceability of this Agreement or any
provision hereof. This waiver shall apply to any subsequent amendments,
renewals, supplements or modifications to this Agreement.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding between the Optionholder and the Company with respect to the
subject matter hereof and supersedes all other agreements, whether written or
oral, with respect to the subject matter hereof.
17. GENDER. Whenever used in this Agreement, the masculine gender
includes the feminine.
18. COMPANY OBLIGATIONS. The Optionholder agrees that the Company
may cause one or more of its Subsidiaries or Subsidiaries of the Parent to
fulfill the Company's obligations to make payments under this Agreement.
23
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
Brink International B.V.
By:/s/ Xxx Xxxxxxxxx
--------------------------------
Name: Xxx Xxxxxxxxx
Title: CFO
Xxxxxx XxXxxxx, as the Optionholder
/s/ Xxxxxx xx Xxxxx
-----------------------------------
APPENDIX A
IRR TARGET SCHEDULE
Proportion of Proportion of
IRR IRR
Monthly based options Monthly based options
IRR being tested IRR being tested
THRESHOLD (%) ABLE TO CONVERT THRESHOLD (%) ABLE TO CONVERT
------------- --------------- ------------- ---------------
<1.5309470% 0.00% 1.7813498% 81.33%
1.5309470% 33.33% 1.7882095% 82.67%
1.5379951% 34.67% 1.7950641% 84.00%
1.5450378% 36.00% 1.8019137% 85.33%
1.5520751% 37.33% 1.8087582% 86.67%
1.5591071% 38.67% 1.8155977% 88.00%
1.5661337% 40.00% 1.8224321% 89.33%
1.5731550% 41.33% 1.8292615% 90.67%
1.5801709% 42.67% 1.8360858% 92.00%
1.5871815% 44.00% 1.8429051% 93.33%
1.5941868% 45.33% 1.8497194% 94.67%
1.6011868% 46.67% 1.8565287% 96.00%
1.6081815% 48.00% 1.8633330% 97.33%
1.6151708% 49.33% 1.8701322% 98.67%
1.6221549% 50.67% 1.8769265% 100.00%
1.6291338% 52.00% >1.8769265% 100.00%
1.6361073% 53.33%
1.6430756% 54.67%
1.6500387% 56.00%
1.6569965% 57.33%
1.6639490% 58.67%
1.6708964% 60.00%
1.6778385% 61.33%
1.6847754% 62.67%
1.6917071% 64.00%
1.6986337% 65.33%
1.7055550% 66.67%
1.7124712% 68.00%
1.7193821% 69.33%
1.7262880% 70.67%
1.7331886% 72.00%
1.7400842% 73.33%
1.7469746% 74.67%
1.7538598% 76.00%
1.7607400% 77.33%
1.7676150% 78.67%
1.7744849% 80.00%
