Lock-Up Agreement - IFCO Systems NV
FORM OF
LOCK-UP AGREEMENT
THIS AGREEMENT (the "Agreement"), is made and entered into by the
undersigned (each, a "Restricted Shareholder") as of the ____ day of ________,
2000. Capitalized terms used herein and not otherwise herein defined shall have
the meanings set forth for such terms in the Merger Agreement (as defined
below).
WHEREAS, IFCO Systems N.V., a public limited liability company organized
under the laws of the Netherlands ("IFCO Systems"), IFCO Europe Beteiligungs
GmbH, a limited liability company organized under the laws of the Federal
Republic of Germany ("IFCO Europe"), MTS Okologistik Verwaltungs GmbH, a limited
liability company organized under the laws of the Federal Republic of Germany
("MTS"), Schoeller International Logistics Beteiligungsgesellschaft mbH, a
limited liability company organized under the laws of the Federal Republic of
Germany ("IFCO International"), Schoeller Logistics Industries GmbH (formerly
known as Schoeller Packaging Systems GmbH), a limited liability company
organized under the laws of the Federal Republic of Germany ("Schoeller
Industries"), Silver Oak Acquisition Corp., a corporation organized under the
laws of the State of Delaware ("Silver Oak"), and PalEx, Inc., a corporation
organized under the laws of the State of Delaware ("PalEx"), have entered into
an Amended and Restated Agreement and Plan of Reorganization, dated as of
October 6, 1999 and effective as of March 29, 1999 (the "Merger Agreement");
WHEREAS, in connection with and pursuant to the terms of the Merger
Agreement, each Restricted Shareholder shall hold or be entitled to receive
ordinary shares of IFCO Systems ("IFCO Systems Ordinary Shares");
WHEREAS, each Restricted Shareholder is entering into this Agreement to set
forth certain terms and conditions governing its actions prior to consummation
of the Merger and for a period of time following the IPO Closing Date with
respect to the IFCO Systems Ordinary Shares held by it.
NOW, THEREFORE, in consideration of the transactions contemplated by the
Merger Agreement and the mutual promises and covenants contained herein, each of
the undersigned Restricted Shareholders agrees as follows:
1. Restriction on Transfer of Shares. Without a waiver given upon an
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affirmative vote of the independent members of the Board of Directors of IFCO
Systems, during the term of this Agreement, each of the undersigned Restricted
Shareholders shall not transfer, sell, assign or convey, or offer or agree to
transfer, sell, assign or convey, any of the IFCO Systems Ordinary Shares held,
or to be held or entitled to be received by such Restricted Shareholder as of
the Effective Time, subject to the ability to transfer IFCO Systems Ordinary
Shares in the following amounts and during the following periods:
(a) an initial 20% at any time beginning one month after the IPO
Closing Date;
(b) an additional 15% beginning 12 months after the IPO Closing Date;
(c) an additional 15% at any time beginning 15 months after the IPO
Closing Date;
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(d) an additional 15% at any time beginning 18 months after the IPO
Closing Date; and
(e) an additional 15% at any time beginning 21 months after the IPO
Closing Date.
2. Notation of Shares. Each undersigned Restricted Shareholder
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understands that the transfer agent of IFCO Systems may be given notice that the
IFCO Systems Ordinary Shares are subject to the terms of this Agreement and such
IFCO System Ordinary Shares shall not be transferred except in accordance with
the terms hereof.
3. Remedies. The undersigned acknowledges and agrees that neither IFCO
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Systems, IFCO Europe, MTS, IFCO International, Schoeller Industries, Silver Oak,
nor PalEx could be made whole by monetary damages in the event of any default by
the undersigned of the terms and conditions set forth in this Agreement. It is
accordingly agreed and understood that IFCO Systems, IFCO Europe, MTS, IFCO
International, Schoeller Industries, Silver Oak, and PalEx, in addition to any
other remedy which each may have at law or in equity, shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and specifically
to enforce the terms and provisions hereof in any action instituted in any court
of the United States, the Netherlands or of the Federal Republic of Germany, or
in any other court that has appropriate jurisdiction.
4. Term. The covenants and obligations set forth in paragraphs 1
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through 3 of this Agreement shall expire and be of no further force or effect on
the earliest of: (i) the expiration or termination of the Merger Agreement, if
such expiration or termination occurs prior to the Effective Time; (ii) the end
of the two-year period beginning on the IPO Closing Date; or (iii) with respect
to a Management Shareholder, upon the termination of employment of the
Management Shareholder by IFCO Systems, PalEx or a Subsidiary of PalEx without
cause or as a result of a breach by IFCO Systems, PalEx or a Subsidiary of PalEx
of any employment agreement with such Management Shareholder.
5. Other Restrictions on Transfer. The restrictions on transfer of
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shares pursuant to this Agreement shall be subject to any additional
restrictions on transfers that any Restricted Shareholder may agree to for the
benefit of the managing underwriter in the IPO, to the extent that such
additional restrictions may be more restrictive.
6. Successor and Assigns. This Agreement shall be binding upon each
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of the undersigned Restricted Shareholders and each of his or her respective
heirs and assigns.
7. Governing Law. This Agreement shall be governed by the laws of the
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State of Delaware.
8. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which will be deemed to be an original, but all of which
will constitute one and the same agreement, it being understood that all parties
need not sign the same counterpart. Facsimile transmission of any signed
original document and/or retransmission of any signed facsimile transmission
will be deemed the same as delivery of an original. At the request of any party,
the parties will confirm facsimile transmission by signing a duplicate original
document.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
each of the undersigned Restricted Shareholders as of the day and year first
above written.
__________________________________
Christoph Schoeller
__________________________________
Martin Schoeller
SCHOELLER LOGISTICS INDUSTRIES GMBH
By:_______________________________
Name:
Title:
SCHOELLER LOGISTIC TECHNOLOGIES HOLDING GMBH
By:_______________________________
Name:
Title:
__________________________________
Sam W. Humphreys
TROY FRASER & LINDA FRASER JT TEN
__________________________________
Troy Fraser
__________________________________
Linda Fraser
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A.E. HOLLAND JR., TRUSTEE OF THE
ALFRED ELTON HOLLAND JR. REVOCABLE
TRUST DATED SEPTEMBER 4, 1994
By:_______________________________
A.E. Holland, Jr., Trustee
__________________________________
Elliot S. Pearlman
ELLIOT S. PEARLMAN LIVING TRUST
DATED AUGUST 7, 1992
By:_______________________________
Elliot S. Pearlman, Trustee
ELLIOT S. PEARLMAN LIVING TRUST DATED
JULY 2, 1996
By:_______________________________
Elliot S. Pearlman, Trustee
__________________________________
Stephen C. Sykes
__________________________________
Vance K. Maultsby, Jr.
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CDRCO NW LLC
By:_______________________________
A. Joseph Cruz
By:_______________________________
Philip M. Freeman
__________________________________
Casey A. Fletcher
__________________________________
Howe Q. Wallace
__________________________________
Fraser Campbell
__________________________________
Steve Fraser
__________________________________
Dan Helmick
__________________________________
Jon Stein