LOCKUP AGREEMENT
Exhibit 10.6
EXECUTION VERSION
THIS LOCKUP AGREEMENT (this “Agreement”) is made and entered into as of May 21, 2013, by and among EveryWare Global, Inc. f/k/a ROI Acquisition Corp., a Delaware corporation (“Parent”), Monomoy Capital Partners, L.P., a Delaware limited partnership (“Fund I”), MCP Supplemental Fund, L.P., a Delaware limited partnership, Monomoy Executive Co-Investment Fund, L.P., a Delaware limited partnership, Monomoy Capital Partners II, L.P., a Delaware limited partnership (“Fund II”), MCP Supplemental Fund II, L.P., a Delaware limited partnership (collectively, the “MCP Funds”), and Fund I and Fund II, together as the Stockholders’ Representative (together the “Stockholders’ Representative”), on behalf of certain other holders of Company Common Stock named on the Schedule of Sellers attached hereto (together with the MCP Funds, collectively referred to hereinafter as the “Sellers”). Each capitalized term used, but not otherwise defined, herein has the respective meaning ascribed to such term in the Business Combination Agreement and Plan of Merger, dated as of January 31, 2013, by and among Parent, EveryWare Global, Inc., a Delaware corporation, and the other parties thereto (the “Merger Agreement”).
In connection with the consummation of the transactions contemplated by the Merger Agreement and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed, each of the MCP Funds for themselves and Fund I and Fund II for the other Sellers as Stockholders’ Representative and Parent hereby agree as follows:
1. The execution and delivery of this Agreement is a condition to the performance of the Parties’ obligations under the Merger Agreement, including the delivery of the shares of Parent Common Stock issued to the Sellers pursuant thereto (the “Shares”).
2. Each of the MCP Funds for themselves and Fund I and Fund II for the other Sellers as Stockholders’ Representative hereby acknowledges and agrees that during the Lockup Period (as defined below), it shall not (A) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any portion of the Shares, (B) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any of the Shares, whether any such transaction is to be settled by delivery of Shares or such other securities, in cash or otherwise, or (C) publicly announce any intention to effect any transaction specified in clause (A) or (B). As used herein, the term “Lockup Period” means the period beginning on the Closing Date and ending on the earlier of the date: (a) that is 180 days following the Closing Date, (b) the last sales price of Parent Common Stock equals or exceeds $12.50 per share (as the same may be adjusted for share splits, share dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30 trading day period commencing at least 90 days after the Closing Date, and (c) Parent consummates a liquidation, merger, stock exchange or other similar transaction that results in all of the holders of Parent Common Stock having the right to exchange their shares of Parent Common Stock for cash, securities or other property.
3. Notwithstanding the provisions of paragraph 2, above, each Seller may transfer any or all of its Shares:
(a) to the officers or directors of Parent or family members of any of Parent’s officers or directors, or any Affiliate of such Seller;
(b) by gift or other transfer to a member of a Seller’s immediate family or to a trust, corporation, partnership or limited liability company established for estate planning purposes, the beneficiaries, stockholders, partners or members of which are members of such Seller’s immediate family or a charitable organization;
(c) by virtue of laws of descent and distribution upon the death of such Seller;
(d) pursuant to a qualified domestic relations order; or
(e) to any partner, stockholder, or member of such Seller;
provided, however, that, in the case of clauses (a) through (e), such permitted transferee(s) becomes bound by the transfer restrictions and forfeiture provisions contained herein.
4. Each of the MCP Funds for themselves and Fund I and Fund II for the other Sellers as Stockholders’ Representative hereby represents and warrants to Parent that it has full power and authority to enter into this Agreement.
5. Each of the MCP Funds for themselves and Fund I and Fund II for the other Sellers as Stockholders’ Representative acknowledges and agrees that, in the event the trading price of the Parent Common Stock does not exceed certain price targets subsequent to the Closing, the Sellers shall forfeit any and all rights to that portion of the Shares which are issued at the Closing as part of the Aggregate Earnout Stock Consideration (but for the avoidance of doubt, not any such shares of Parent Common Stock which are issued at the Closing as part of the Aggregate Stock Consideration), which forfeiture shall be effected by Parent redeeming such shares from the Sellers for nominal consideration, as set forth below:
(a) in the event the last sale price of the Parent Common Stock does not equal or exceed $11.00 per share (as adjusted for stock splits, share dividends, reorganizations, recapitalizations and the like) for any 20 trading days within at least one 30 trading day period on or prior to the fifth (5th) anniversary of the Closing, each Seller shall forfeit any and all rights to its pro rata portion (as amongst the Sellers and their permitted transferees) of 1,000,000 of the Shares issued at the Closing as part of the Aggregate Earnout Stock Consideration;
(b) in the event the last sale price of the Parent Common Stock does not equal or exceed $12.50 per share (as adjusted for stock splits, share dividends, reorganizations, recapitalizations and the like) for any 20 trading days within at least one 30 trading day period on or prior to the fifth (5th) anniversary of the Closing, each Seller shall forfeit any and all rights to its pro rata portion (as amongst the Sellers and their permitted transferees) of 1,250,000 of the Shares issued at the Closing as part of the Aggregate Earnout Stock Consideration; and
(c) in the event the last sale price of the Parent Common Stock does not equal or exceed $15.00 per share (as adjusted for stock splits, share dividends, reorganizations, recapitalizations and the like) for any 20 trading days within at least one 30 trading day period on or prior to the fifth (5th) anniversary of the Closing, each Seller shall forfeit any and all rights to its pro rata portion (as amongst the Sellers and their permitted transferees) of 1,250,000 of the Shares issued at the Closing as part of the Aggregate Earnout Stock Consideration.
Parent will cause each of the certificates evidencing the Shares to be legended with the applicable transfer restrictions.
6. This Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Agreement may not be changed, amended, modified or waived as to any particular provision, except by a written instrument executed by all parties hereto.
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7. No party hereto may assign this Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other parties. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Agreement shall be binding on each party’s respective successors, heirs, personal representatives and assigns.
8. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that· would result in the application of the substantive laws of another jurisdiction. The parties hereto (i) all agree that any action, proceeding, claim or dispute arising out of, or relating in any way to, this Agreement shall be brought and enforced in the federal and state courts of New York County in the State of New York, and irrevocably submits to such jurisdiction and venue, which jurisdiction and venue shall be exclusive and (ii) waives any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum.
9. Any notice, consent or request to be given in connection with any of the terms or provisions of this Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery, or by electronic or facsimile transmission, to the address or facsimile number indicated on the books and records of Parent or such other address as a party shall subsequently provide.
10. This Agreement may not be amended without the approval of the Audit Committee of the Board of Directors of Parent.
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IN WITNESS WHEREOF, the parties have executed this Lockup Agreement on the date first written above.
| (F/K/A ROI ACQUISITION CORP.) | ||
| By: | /s/ Xxxxx Love | |
| Name: Xxxxx Love | ||
| Its: Senior Vice President, General Counsel and Secretary | ||
| MONOMOY CAPITAL PARTNERS, L.P. | ||
| By: | Monomoy General Partner, L.P. | |
| Its: General Partner | ||
| By: | Monomoy Ultimate GP, LLC | |
| Its: General Partner | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | ||
| Its: Partner | ||
| as a tenant in common with: | ||
| MCP SUPPLEMENTAL FUND, L.P. | ||
| By: | Monomoy General Partner, L.P. | |
| Its: General Partner | ||
| By: | Monomoy Ultimate GP, LLC | |
| Its: General Partner | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | ||
| Its: Partner | ||
| and as a tenant in common with: | ||
| MONOMOY EXECUTIVE CO-INVESTMENT FUND, L.P. | ||
| By: | Monomoy General Partner, L.P. | |
| Its: General Partner | ||
| By: |
Monomoy Ultimate GP, LLC | |
| Its: General Partner | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | ||
| Its: Partner | ||
[Signature Page to Lockup Agreement]
| MONOMOY CAPITAL PARTNERS II, L.P. | ||
| By: |
Monomoy General Partner II, L.P. | |
| Its: General Partner | ||
| By: |
Monomoy Ultimate GP, LLC | |
| Its: General Partner | ||
| By: |
/s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | ||
| Its: Partner | ||
| MCP SUPPLEMENTAL FUND II, L.P. | ||
| By: |
Monomoy General Partner II, L.P. | |
| Its: General Partner | ||
| By: |
Monomoy Ultimate GP, LLC | |
| Its: General Partner | ||
| By: |
/s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | ||
| Its: Partner | ||
[Signature Page to Lockup Agreement]
| STOCKHOLDERS’ REPRESENTATIVE | ||
| MONOMOY CAPITAL PARTNERS, L.P. | ||
| By: Monomoy General Partner, L.P. | ||
| Its: General Partner | ||
| By: Monomoy Ultimate GP, LLC | ||
| Its: General Partner | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | ||
| Its: Partner | ||
| and | ||
| MONOMOY CAPITAL PARTNERS II, L.P. | ||
| By: Monomoy General Partner II, L.P. | ||
| Its: General Partner | ||
| By: Monomoy Ultimate GP, LLC | ||
| Its: General Partner | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | ||
| Its: Partner | ||
[Signature Page to Lockup Agreement]
Schedule of Sellers
| Name: |
Address: | |
| Monomoy Capital Partners, L.P. |
c/o Monomoy Capital Partners 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 | |
| MCP Supplemental Fund, L.P. |
c/o Monomoy Capital Partners 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 | |
| Monomoy Executive Co-Investment Fund, L.P. |
c/o Monomoy Capital Partners 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 | |
| Monomoy Capital Partners II, L.P. |
c/o Monomoy Capital Partners 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 | |
| MCP Supplemental Fund II, L.P. |
c/o Monomoy Capital Partners 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 | |
| Management Holders: |
||
| Xxxxxx X. Xxxxxx |
0000 Xxxxxx Xxxxx Xxxxxxxxxxxx, XX 00000 | |
| Xxxxxxx X. Xxxxxxx |
0000 Xxxx Xxx Xxxxxx Xxxxxx Xxxx, XX 00000 | |
| Xxxxxx Xxxxxx |
000 Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 | |
| Xxxx Xxxxxxxx |
0000 Xxxxxxx Xxxxx Xxxxxxxxx, XX 00000 | |
| Xxxx Xxxxxx |
0000 Xxxxxxx Xxxxx Xxxxxx, XX 00000 | |
| Xxxxx Xxxxxxx |
000 Xxxxxxxx Xxxxx Xxxxxxxxx Xxx, XX 00000 | |
| Xxxx Xxxxxxxx |
000 Xxxxxx Xxxxxx Xxxxxxxxx, XX 00000 | |
| Name: |
Address: | |
| Xxxxxx Xxxxxxx |
0000 Xxxxxxxxxx Xxxxx Xxxxxxxxxx, XX 00000 | |
| Xxxxxxx Xxxxxxx |
00 Xxxxxxxx Xxxx Xxxxxxxxx, XX 00000 | |
| Xxxxxx Xxxxx |
0000 Xxxxxxxx Xxxx Xxxx, XX 00000 | |
| Xxxx Xxxxxxxxx |
00 Xxxxxxxx Xxxxx Xxxxxxxxx, XX 00000 | |
| Xxxx Xxxxxxxx |
0000 Xxxxx Xxxx Xxxxxx Xxxxx, XX 00000 | |
| Xxxxxx Xxxxx |
000 Xxxxx Xxxx Xxxxxxxx, XX 00000 | |
| Xxxxxx Xxxxxxxx |
0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx, XX 00000 | |
| Xxxxxx X. Xxxxxx |
000 Xxxxxx Xxxxx Xxxxx Xxxxxxx, XX 00000 | |
| Xxxxx Xxxxxx |
000 Xxxxxxx Xxxxx Xxxxxx XX, Xxxxxx X0X0X0 | |
