AGREEMENT
Execution
Copy
THIS
AGREEMENT (this “Agreement”), dated as
of May 22, 2009, by and between Shermen WSC Holding LLC, a Delaware limited
liability company (“Holding”), and the
signatory on the execution page hereof (“Stockholder”).
WHEREAS,
Shermen WSC Acquisition Corp. (“Shermen”) has agreed
to purchase certain businesses from ED&F Man Holdings Limited (together with
its affiliates, “ED&F”) and
certain of its affiliates, pursuant to a Transaction Agreement dated as of
November 25, 2008, and amended and restated as of May 1, 2009 (such purchase,
the “Business
Combination”; such agreement as amended and restated, the “Transaction
Agreement”);
WHEREAS,
approval of the Business Combination is contingent upon, among other things, the
affirmative vote of a majority of shares of Shermen’s common stock, par value
$.0001 per share (“Common Stock”), (a)
voted by the holders of Common Stock issued in the initial public offering of
Shermen consummated on May 30, 2007 (such initial public offering, the “IPO”; such holders,
the “Public
Stockholders”) present and entitled to vote at the meeting of Shermen’s
stockholders to be held on May 26, 2009 (as such meeting may be adjourned or
postponed, the “Stockholders
Meeting”) and (b) outstanding as of May 7, 2009 (the “Record Date”) for the
Stockholders Meeting;
WHEREAS,
pursuant to certain provisions in Shermen’s amended and restated certificate of
incorporation, a Public Stockholder may, if such Public Stockholder
affirmatively votes against the Business Combination, elect that Shermen convert
such Public Stockholder’s shares of Common Stock into cash (“Conversion
Rights”);
WHEREAS,
the Business Combination is conditioned upon the exercise of Conversion Rights
by holders of less than 40% of Common Stock issued in the IPO;
WHEREAS,
Holding is the legal and beneficial owner of 5,663,750 shares of Common Stock
and Holding (a) owned such shares as of the close business on the Record Date
and (b) has the sole and exclusive right to vote such shares at the Stockholders
Meeting, subject to undertakings made in connection with the IPO;
WHEREAS,
subject to the terms and conditions set forth herein, Stockholder agrees to
purchase 2,000,000 shares of Common Stock and to vote, at the Stockholders
Meeting, each share of Common Stock held by Stockholder at such time in favor of
the Business Combination and all other proposals required to consummate the
Business Combination at the Stockholders Meeting; and
WHEREAS,
in order to induce Stockholder to enter into this Agreement, Holding agrees,
subject to the terms and conditions set forth herein, to transfer 857,142 shares
of Common Stock owned by it (the “Transferred Shares”)
to Stockholder upon release of such shares from escrow upon termination of the
Escrow Period (as defined in the Stock Escrow Agreement dated as of May 30,
2007, to which Shermen and Holding are parties (the “Escrow
Agreement”));
NOW,
THEREFORE, in consideration of the promises and the mutual covenants and
obligations hereinafter set forth, the parties hereto hereby agree as
follows:
1. Covenants of Holding.
Subject to Stockholder having performed or complied with all agreements and
covenants required by Section 2 of this Agreement to be performed or complied
with by Stockholder, and solely in consideration thereof, Holding agrees that,
upon release of the Transferred Shares from escrow upon termination of the
Escrow Period, Holding shall (a) sell, transfer and assign to Stockholder all of
Holding’s right, title and interest in the Transferred Shares, (b) tender
certificates representing the Transferred Shares to Stockholder and duly
executed stock powers or other instruments of transfer required to transfer the
Transferred Shares to Stockholder, (c) under the Registration Rights Agreement
dated May 30, 2007 to which Shermen and Holding are parties (the “Registration
Rights Agreement”), assign to Stockholder Holding’s registration rights with
respect to the Transferred Shares and agree that the Purchased Shares (as
defined below) shall be included in the definition of “Registrable Securities”
contained therein and (d) at the option of Holding, either take such steps as
are required to include the Transferred Shares in an effective shelf
registration statement of Shermen (pursuant to a post-effective amendment or
otherwise) promptly after the transfer of the Transferred Shares to Stockholder
(and in any event within thirty(30) days of such transfer), or, at the written
request of the Stockholder, make a demand for a Demand Registration of the
Transferred Shares on behalf of the Stockholder pursuant to Section 2.1.1 of the
Registration Rights Agreement.
2. Covenants of
Stockholder.
2.1. Prior to
the Stockholders Meeting, Stockholder shall purchase 2,000,000 shares of Common
Stock (the “Purchased
Shares”).
2.2. Stockholder
shall vote, or direct to be voted as set forth in Section 2.4, at the
Stockholders Meeting, each share of Common Stock held by it at such time
(including each Purchased Share but not including any Transferred Share) in
favor of the Business Combination and all other proposals required to consummate
the Business Combination at the Stockholders Meeting.
2.3. If, as of
the date of this Agreement, Stockholder has not elected to exercise its
Conversion Rights with respect to any shares of Common Stock held by it,
Stockholder shall not elect to exercise such Conversion Rights. If, however, as
of the date of this Agreement, Stockholder has elected to exercise its
Conversion Rights with respect any of the shares of Common Stock held by it, it
shall properly and validly withdraw such conversion election with respect to all
such shares of Common Stock within one business day of this
Agreement.
2.4. Promptly
after purchasing the Purchased Shares, Stockholder shall direct Lazard Capital
Markets LLC (“Lazard”) to take all
action necessary such that the sellers of the Purchased Shares vote at the
Stockholders Meeting in accordance with the instructions of
Stockholder. Stockholder shall request that Lazard deliver to
Holding, if available, a true and correct copy of the voting information form
with respect to all shares of Common Stock held by Stockholder (including the
Purchased Shares) indicating the financial institution through which those
shares are held and the control number regarding the voting of those shares (the
“Control
Number”), or, in the alternative, written confirmation by Lazard of such
information as would appear on the voting information
form. Stockholder agrees that Holding may use the Control Number to
enforce the terms of this Agreement.
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3. Representations and
Warranties of Holding.
3.1. Holding
hereby represents to Stockholder on the date hereof and on the Closing Date
that:
(a) Sophisticated
Holding. Holding is sophisticated in financial matters and is able to
evaluate the risks and benefits attendant to the transfer of the Transferred
Shares to Stockholder.
(b) Independent
Investigation. Holding, in making the decision to transfer the
Transferred Shares to Stockholder, has not relied upon any oral or written
representations or assurances from Shermen or ED&F or any of their
respective officers, directors or employees or any other representatives or
agents of Shermen or ED&F. Holding has had access to and reviewed all of the
filings made by Shermen with the SEC, pursuant to the Securities Exchange Act of
1934 (the “Exchange
Act”) and the Securities Act of 1933 (the “Securities Act”), in
each case to the extent available and publicly accessible via the SEC's
Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”).
(c) Authority. This
Agreement has been validly authorized, executed and delivered by Holding and,
assuming the due authorization, execution and delivery thereof by Stockholder,
is a valid and binding agreement enforceable in accordance with its terms,
subject to the general principles of equity and to bankruptcy or other laws
affecting the enforcement of creditors' rights generally. The execution,
delivery and performance of this Agreement by Holding does not and will not
conflict with, violate or cause a breach of, constitute a default under, or
result in a violation of (i) any agreement, contract or instrument to which
Holding is a party which would prevent Holding from performing its obligations
hereunder or (ii) any law, statute, rule or regulation to which Holding is
subject. As of each of the Record Date and the date hereof, Holding was and is
the legal and beneficial owner of the Transferred Shares and had and has the
sole and exclusive right to vote the Transferred Shares at the Stockholders
Meeting, subject to undertakings made in connection with the IPO.
(d) Consents. No consent,
approval, order or authorization of, or registration, qualification, or filing,
with any governmental authority or any other person is required on the part of
Holding in connection with the execution, delivery and performance of this
Agreement.
(e) Free and Clear of
Encumbrances. Holding is the beneficial owner of the Transferred Shares
and has good marketable title to the Transferred Shares, subject to the terms of
the Escrow Agreement, free and clear of any liens, claims, security interests,
options, charges or any other encumbrance whatsoever.
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(f) No Additional
Agreements. Other than this Agreement and the letter agreement dated May
24, 2007, between Shermen and Holding, Holding is not party to any agreement to
sell, otherwise transfer, or vote any of the Transferred Shares.
(g) No Legal Advice from
Stockholder. Holding acknowledges that it has had the opportunity to
review this Agreement and the transactions contemplated by this Agreement with
Holding’s own legal counsel and investment and tax advisors. Holding is relying
solely on such counsel and advisors and not on any statements or representations
of Stockholder or any of its representatives or agents for legal, tax or
investment advice with respect to this Agreement or the transactions
contemplated by this Agreement.
4. Representations and
Warranties of Stockholder.
4.1. Stockholder
hereby represents to Holding on the date hereof that:
(a) Sophisticated
Stockholder. Stockholder is sophisticated in financial matters and is
able to evaluate the risks and benefits attendant to the transfer of the
Transferred Shares by Holding.
(b) Independent
Investigation. Stockholder, in making the decision to accept the
Transferred Shares from Holding and to agree to the covenants set forth herein,
has not relied upon any oral or written representations or assurances from
Holding, Shermen or ED&F or any of their respective officers, directors or
employees or any other representatives or agents of Holding, Shermen or
ED&F. Stockholder has had access to and has had an opportunity to review all
of the filings made by Shermen with the SEC, pursuant to the Exchange Act and
the Securities Act, in each case to the extent available and publicly accessible
via XXXXX.
(c) Authority. This
Agreement has been validly authorized, executed and delivered by Stockholder
and, assuming the due authorization, execution and delivery thereof by Holding,
is a valid and binding agreement enforceable in accordance with its terms,
subject to the general principles of equity and to bankruptcy or other laws
affecting the enforcement of creditors’ rights generally. The execution,
delivery and performance of this Agreement by Stockholder does not and will not
conflict with, violate or cause a breach of, constitute a default under, or
result in a violation of (i) any agreement, contract or instrument to which
Stockholder is a party which would prevent Stockholder from performing its
obligations hereunder or (ii) any law, statute, rule or regulation to which
Stockholder is subject. As of the date of the Stockholders Meeting, Stockholder
will be the legal and beneficial owner of all shares of Common Stock held by it
(which shall include all of the Purchased Shares but none of the Transferred
Shares) and will have directed Lazard to take all action necessary such that the
sellers of the Purchased Shares vote at the Stockholders Meeting in accordance
with the instructions of Stockholder and do not exercise the Conversion Rights
attached to such shares at the Stockholders Meeting.
(d) Consents. No consent,
approval, order or authorization of, or registration, qualification, or filing,
with any governmental authority or any other person is required on the part of
Stockholder in connection with the execution, delivery and performance of this
Agreement.
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(e) No Additional
Agreements. Other than this Agreement, Holding is not and will not, at
the time of the Stockholders Meeting, be party to any agreement to vote any of
the shares of Common Stock held by it (including the Transferred Shares and the
Purchased Shares).
(f) No Legal Advice from
Holding. Stockholder acknowledges that it has had the opportunity to
review this Agreement and the transactions contemplated by this Agreement with
Stockholder’s own legal counsel and investment and tax advisors. Stockholder is
relying solely on such counsel and advisors and not on any statements or
representations of Holding or any of its representatives or agents for legal,
tax or investment advice with respect to this Agreement or the transactions
contemplated by this Agreement.
5. Termination.
Notwithstanding any provision in this Agreement to the contrary, this Agreement
shall become null and void and of no force and effect upon the termination of
the Transaction Agreement or at 11:59 p.m., eastern daylight time, on May 30,
2009, if the Business Combination has not occurred by such time.
6. Counterparts;
Facsimile. This Agreement may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same instrument. This
Agreement or any counterpart may be executed via facsimile transmission, and any
such executed facsimile copy shall be treated as an original.
7. Governing Law. This
Agreement shall for all purposes be deemed to be made under and shall be
construed in accordance with the laws of the State of New York. Each of the
parties hereby agrees that any action, proceeding or claim against it arising
out of or relating in any way to this Agreement shall be brought and enforced in
the courts of the State of New York or the United States District Court for the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. Each of the parties hereby waives any
objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum.
8. Remedies. Each of the
parties hereto acknowledges and agrees that, in the event of any breach of any
covenant or agreement contained in this Agreement by the other party, money
damages may be inadequate with respect to any such breach and the non-breaching
party may have no adequate remedy at law. It is accordingly agreed that each of
the parties hereto shall be entitled, in addition to any other remedy to which
they may be entitled at law or in equity, to seek injunctive relief and/or to
compel specific performance to prevent breaches by the other party hereto of any
covenant or agreement of such other party contained in this
Agreement.
9. Binding Effect;
Assignment. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective legal representatives, successors and
permitted assigns. This Agreement shall not be assigned by either party without
the prior written consent of the other party hereto.
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10. Entire Agreement; Changes in
Writing. This Agreement constitutes the entire agreement among the
parties hereto and supersedes and cancels any prior agreements, representations,
warranties, whether oral or written, among the parties hereto relating to the
transaction contemplated hereby. Neither this Agreement nor any provision hereof
may be changed or amended orally, but only by an agreement in writing signed by
the other party hereto.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
SHERMEN WSC HOLDING LLC | |||
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By:
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/s/ Xxxxxxx X. Xxxxxxx, Xx. | |
Name: Xxxxxxx X. Xxxxxxx, Xx. | |||
Title: Managing Member | |||
DORSET
MANAGEMENT CORPORATION,
Solely
on behalf of funds for which it serves as investment
manager
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|||
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By:
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/s/ Xxxxx X. Xxxxx | |
Name: Xxxxx X. Xxxxx | |||
Title: President | |||
Address: 000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000 | |||
Xxxxxxx, Xxx Xxxx 00000 |
THE
UNDERSIGNED acknowledge and agree that, under the Registration Rights Agreement
and pursuant to Section 1 of this Agreement, Stockholder (1) will be assuming
Holding’s registration rights with respect to the Transferred Shares, (2) shall
be entitled to include the Purchased Shares in the definition of “Registrable
Securities” contained therein, (3) will be able to exercise such registration
rights as if it were an original signatory thereto and (4) will honor any demand
for a Demand Registration made by Holding with respect to the Transferred Shares
on behalf of Stockholder pursuant to Section 1, subject to the terms and
conditions of the Registration Rights Agreement.
SHERMEN WSC ACQUISITION CORP. | |||
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By:
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/s/ Xxxxxxx X. Xxxxxxx, Xx. | |
Name: Xxxxxxx X. Xxxxxxx, Xx. | |||
Title: Managing Member | |||
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