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, (vii) shares of
money market funds that invest solely in United States dollars and securities of
the types described in clauses (iii) through (v), and (viii) 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
(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.
(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
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(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.
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"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.
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(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.
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(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
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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
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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.
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(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
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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 Anniversary 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.
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(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
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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.
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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%
