Exhibit 10.1
Execution Copy
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MANAGEMENT OPTION SUBSCRIPTION AGREEMENT
between
BRINK INTERNATIONAL, B.V.
and
THE SIGNATORY HERETO NAMED ON THE SIGNATURE PAGE HERETO UNDER THE
CAPTION "OPTIONHOLDER"
Dated as of May 17, 2005
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MANAGEMENT OPTION SUBSCRIPTION AGREEMENT
MANAGEMENT OPTION SUBSCRIPTION AGREEMENT, dated as of May 17, 2005
(the "AGREEMENT"), 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, Industrieweg
5, The Netherlands), and the person listed on the signature page hereto under
the heading "Optionholder" (such person being referred to as the
"OPTIONHOLDER").
WHEREAS, the Optionholder desires to acquire from the Company, and the
Company also desires to grant to the Optionholder options ("the OPTIONS") to
acquire 7254 ordinary shares of the Company (the "SHARES") as set forth opposite
the name of the Optionholder on Annex I hereto, that are subject to a right of
repurchase by the Company or a right and obligation to transfer to an ultimate
purchaser designated by the Company in accordance with an Option Repurchase
Agreement in the form attached hereto as Exhibit A (the "OPTION REPURCHASE
AGREEMENT") for a purchase price, consisting of cash, as set forth opposite the
name of the Purchaser on ANNEX I (the "PURCHASE PRICE");
WHEREAS, the acquisition of the Options from the Company shall
be conditioned upon the Optionholder entering into the Option Repurchase
Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows: 1.
DEFINITIONS. As used in this Agreement, the following terms shall have the
meanings ascribed to them below:
"AGREEMENT" shall have the meaning set forth in the first paragraph
hereof.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or any
other day on which commercial banks are required or authorized by law or
regulation to be closed in New York, New York.
"COMPANY" shall have the meaning set forth in the first paragraph
hereof.
"COMPANY SECURITIES" shall have the meaning set forth in Section 2.
"OPTION REPURCHASE AGREEMENT" shall have the meaning set forth in the
first recital hereto.
"OPTIONHOLDER" shall have the meaning set forth in the first paragraph
hereof.
"OPTIONS" shall have the meaning set forth in the first recital
hereto.
"PRINCIPAL DOCUMENT" shall include this Agreement and the Option
Repurchase Agreement.
"PURCHASE PRICE" shall have the meaning set forth in the first recital
hereto.
"SHARES" shall have the meaning set forth in the first recital hereto.
2. ACQUISITION.
(a) ACQUISITION. Upon the execution hereof and on the terms set forth
in this Agreement, the Optionholder hereby agrees to acquire, and the Company
hereby agrees to grant to the Optionholder, not later than May __, 2005, the
number of Options set forth opposite his name on ANNEX I for the aggregate
Purchase Price set forth opposite his name thereon. The Options granted pursuant
to this Agreement are sometimes referred to herein as the "COMPANY SECURITIES."
(b) THE CLOSING. Upon the execution hereof, (x) the Company shall
issue the Options to the Optionholder, against payment of the aggregate Purchase
Price, (the issuance of Options shall be evidenced by the execution of this
agreement), (y) the Purchaser shall deliver to the Company the Purchase Price
required to be paid in cash as set forth on ANNEX I hereto and (z) each party to
this Agreement shall deliver to the other such other documents, instruments and
writings as may be required to be delivered in accordance with this Agreement or
as may be reasonably requested by such other party, including, but not limited
to, the Option Repurchase Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE OPTIONHOLDER.
(a) The Optionholder represents and warrants that he is acquiring
Company Securities for investment for his own account and not with a view to, or
for resale in connection with, the distribution or other disposition thereof in
violation of the Securities Markets (Supervision) Act 1995 (Wet toezicht
effectenverkeer 1995). The Optionholder agrees that he will not, directly or
indirectly, offer, transfer, sell, pledge, hypothecate or otherwise dispose of
any Company Securities (or solicit any offers to buy, purchase, or otherwise
acquire or take a pledge of any Company Securities), except in compliance with
the Securities Markets (Supervision) Act 1995 (Wet toezicht effectenverkeer
1995), the rules and regulations promulgated thereunder, applicable state
securities laws and the provisions of this Agreement, the Operating Agreement
and the Option Repurchase Agreement. The Optionholder represents and warrants
that no other person or entity will have any interest, beneficial or otherwise,
in Company Securities acquired by the Optionholder hereby, except as set forth
in the Option Repurchase Agreement.
(b) The Optionholder represents and warrants that (i) he can
afford to hold Company Securities for an indefinite period and to suffer the
complete loss of its investment in Company Securities, (ii) he understands and
has taken cognizance of all the risk factors related to his acquisition of
Company Securities and (iii) his knowledge and experience in financial and
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business matters is such that he is capable of evaluating the merits and risks
of acquiring Company Securities.
(c) The Optionholder represents and warrants that neither the
execution and delivery by the Optionholder of this Agreement or any Principal
Document nor the performance by the Optionholder of his obligations under this
Agreement or any Principal Document will require on the part of the Optionholder
any governmental authorization from, approval of, filing with or notification to
any governmental entity or any consent from any third party, including
Optionholder's spouse.
(d) The Optionholder represents and warrants that neither the
execution or delivery of this Agreement by such Optionholder or any Principal
Document, nor the performance by the Optionholder of his obligations in this
Agreement or any Principal Document will: (a) result in a violation or breach
of, or constitute (with or without notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation or modification) under,
any of the terms, conditions or provisions of any agreement, instrument or
obligation to which the Optionholder is a party or by which the Optionholder or
any of the Optionholder's properties or assets are bound; or (b) violate any
existing applicable material law, statute, ordinance, code, writ, injunction,
rule, regulation, judgment, order or decree of any governmental authority
applicable to the Optionholder or any of the Optionholder's properties or
assets.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Optionholder as follows:
(a) Without giving effect to the transactions contemplated hereby, as
of the date hereof, the number of issued and outstanding equity interests of the
Company consists of 200,000 shares with a nominal value of EUR 0.46 each.
5. FURTHER ACTION.
Each party hereto agrees to execute and deliver any instrument and
take any action that may reasonably be requested by any other party for the
purpose of effectuating the provisions of this Agreement.
6. REPURCHASE OF COMPANY SECURITIES.
The Optionholder hereby acknowledges that the Company Securities are
subject to the right of the Company to repurchase such securities in accordance
with the terms and conditions set forth in the Option Repurchase Agreement.
7. RESTRICTION ON TRANSFER AND SALE OF OPTIONS.
The Optionholder understands and agrees that, except as expressly
provided in the Securities Repurchase Agreement, he may not directly or
indirectly, offer, transfer, sell, pledge, hypothecate or otherwise dispose of
any Company Securities (except as provided under the Principal Documents)
without the prior written consent of CHAAS Holdings B.V., CHAAS Holdings, LLC
and the Company, which consent may be withheld in their sole discretion and
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that any such offer, transfer, sale, pledge, hypothecation or disposal shall be
null and void and of no force or effect.
8. MISCELLANEOUS PROVISIONS.
(a) ASSIGNABILITY; BINDING EFFECT. Except as otherwise provided in
this Section, no right under this Agreement shall be assignable and any
attempted assignment in violation of this provision shall be void. The Company
shall have the right to assign its rights and obligations hereunder to any
affiliate or successor entity (including any entity acquiring substantially all
of the assets of the Company), whereupon references herein to the Company shall
be deemed to be to such successor or affiliate. This Agreement, and the rights
and obligations of the parties hereunder, shall be binding upon and inure to the
benefit of any and all successors, permitted assigns, personal representatives
and all other legal representatives, in whatsoever capacity, by operation of law
or otherwise, of the parties hereto, in each case with the same force and effect
as if the foregoing persons were named herein as parties hereto.
(b) NOTICES. Any notice or other communication required or which may
be given hereunder shall be in writing and shall be delivered personally,
telecopied with confirmed receipt, sent by certified, registered, or express
mail, postage prepaid, or sent by a national next-day delivery service to the
parties at the following addresses or at such other addresses as shall be
specified by the parties by like notice, and shall be deemed given when so
delivered personally or telecopied, or if mailed, two business days after the
date of mailing, or, if by national next-day delivery service, on the business
day after delivery to such service as follows:
(i) if to the Company, to it at:
Brink International, B.V..
Postbus 24, 7950 AA Staphorst
Industrieweg 5, 7951 CX
Staphorst, The Netherlands
Attention: Chief Financial Officer
Telecopier No.: 011-31 (0)522 469 209
with a copy to:
CHAAS Holdings, LLC
c/o Castle Harlan, Inc.
150 East 58th Street
37th Floor
New York, New York 10155
Attention: Marcel Fournier
Telecopier No.: 212-207-8042
and to:
Schulte Roth & Zabel LLP
919 Third Avenue
New York, NY 10022
Attention: Robert Goldstein, Esq.
Telecopier No: 212-593-5955
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(ii) If to the Optionholder, to him or her at his or
her address set forth in ANNEX I hereto
(c) APPLICABLE LAW; CONSENT. This Agreement and the validity and
performance of the terms hereof shall be governed by and construed in accordance
with the laws of the State of New York without regard to principles of conflicts
of law or choice of law to the contrary. The parties hereto hereby agree that
all actions or proceedings arising directly or indirectly from or in connection
with this Agreement shall be litigated only in the Supreme Court of the State of
New York or the United States District Court for the Southern District of New
York located in New York County, New York. To the extent permitted by applicable
law, the parties hereto consent to the jurisdiction and venue of the foregoing
courts and consent that any process or notice of motion or other application to
either of said courts or a judge thereof may be served inside or outside the
State of New York or the Southern District of New York by registered mail,
return receipt requested, directed to such party at its address set forth in
this Agreement (and service so made shall be deemed complete five days after the
same has been posted as aforesaid) or by personal service or in such other
manner as may be permissible under the rules of said courts.
(d) ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS. This Agreement sets
forth the entire understanding of the parties with respect to the subject matter
hereof. The failure of any party to seek redress for the violation of or to
insist upon the strict performance of any term of this Agreement shall not
constitute a waiver of such term and such party shall be entitled to enforce
such term without regard to such forbearance. This Agreement may be amended only
by the written consent of each party hereto, and each party hereto may take any
action herein prohibited or omit to take action herein required to be performed
by it, and any breach of or compliance with any covenant, agreement, warranty or
representation may be waived only by the written waiver of the party against
whom such action or inaction may negatively affect, but, in any case, such
consent or waiver shall only be effective in the specific instance and for the
specific purpose for which given.
(e) HEADINGS. The headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretations of
the Agreement.
(f) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement, or any part thereof, is held by a court of competent
jurisdiction or any foreign federal, state, county or local government or any
other governmental, regulatory or administrative agency or authority to be
invalid, void, unenforceable or against public policy for any reason, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
(g) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart.
(h) SPECIFIC PERFORMANCE. Each of the parties hereto acknowledges
and agrees that in the event of any breach of this Agreement, the non-breaching
party would be irreparably harmed and could not be made whole by monetary
damages. It is accordingly agreed
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that the parties hereto shall and do hereby waive the defense in any action for
specific performance that a remedy at law would be adequate and that the parties
hereto, in addition to any other remedy to which they may be entitled at law or
in equity, shall be entitled to compel specific performance of this Agreement in
any action instituted in the Supreme Court of the State of New York or the
United States District Court for the Southern District of New York, or, in the
event such courts shall not have jurisdiction of such action, in any court of
the United States or any state thereof having subject matter jurisdiction of
such action.
(i) SURVIVAL OF COVENANTS. All covenants, agreements, representations
and warranties made herein or in any other document referred to herein or
delivered to a party pursuant hereto or in connection herewith shall survive the
execution and delivery to such party of this Agreement and of Company
Securities.
(j) BROKERS FEES, ETC. Each party hereto represents and warrants to
each other party that no broker's, finder's or placement fee or commission will
be payable to any Person alleged to have been retained by such representing and
warranting party with respect to the transaction contemplated by this Agreement.
Each party hereto hereby indemnifies each other party against and agrees that it
will hold each other party and each of such party's affiliates (and each of the
trustee, employees and other fiduciaries or agents of such party) harmless from
any claim, demand or liability for any broker's, finder's or placement fee or
commission alleged to have been incurred by such indemnifying party, including
without limitation reasonable attorneys' fees.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first set forth above.
BRINK INTERNATIONAL, B.V.
By: /s/ Wim Rengelink
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Name: Wim Rengelink
Title: Chief Financial Officer
OPTIONHOLDER
By: /s/ Gerrit de Graff
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Name: Gerrit de Graaf
ANNEX I
/-----------------/-------------------/--------------------/-------------------/
/ / / / /
/NAME AND ADDRESS / Number of Options / Purchase Price Per / Aggregate Purchase/
/ / / Option / Price /
/-----------------/-------------------/--------------------/-------------------/
/ / / / /
/Gerrit de Graaf / 7254 / Euro 0.01 / Euro 72.54 /
/Broeksteeg 3 / / / /
/7957 BZ De Wijk / / / /
/The Netherlands / / / /
/-----------------/-------------------/--------------------/-------------------/
/ / / / /
/ / / / /
/-----------------/-------------------/--------------------/-------------------/
EXHIBIT A
FORM OF OPTION REPURCHASE AGREEMENT