-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, S2R+hXSuV+Tg07z6gwl6quSlDYesQXf2BtI+PbI0ViME3wqVizpPUy2cIkJglf14 smbDamyuJTRhRfEKmvZQPQ== 0001144204-07-012288.txt : 20070312 0001144204-07-012288.hdr.sgml : 20070312 20070312164641 ACCESSION NUMBER: 0001144204-07-012288 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20070312 DATE AS OF CHANGE: 20070312 GROUP MEMBERS: CRX ACQUISITION LTD. GROUP MEMBERS: FORTIS BANK S.A./N.V. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CRONOS GROUP CENTRAL INDEX KEY: 0000919869 STANDARD INDUSTRIAL CLASSIFICATION: TRANSPORTATION SERVICES [4700] IRS NUMBER: 000000000 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-47841 FILM NUMBER: 07688077 BUSINESS ADDRESS: STREET 1: 5 RUE GUILLAUME KROLL CITY: L-1882 STATE: N4 ZIP: - BUSINESS PHONE: 3524818283961 MAIL ADDRESS: STREET 1: 5 RUE GUILLAUME KROLL CITY: L-1882 STATE: N4 ZIP: - FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FB TRANSPORTATION CAPITAL LLC CENTRAL INDEX KEY: 0001392531 IRS NUMBER: 133015333 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 153 EAST 53RD STREET STREET 2: 27TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 212 418 8700 MAIL ADDRESS: STREET 1: 153 EAST 53RD STREET STREET 2: 27TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D 1 v068120_sc13d.htm Unassociated Document
Common Shares
CUSIP No. L20708-10-0
 


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
SCHEDULE 13D
Under the Securities Exchange Act of 1934
 
The Cronos Group

(Name of Issuer)
 
 
Common Shares, $2.00 per share

(Title of Class of Securities)
 
 
No. L20708-10-0

(CUSIP Number)
 
Roy C. Andersen, Esq.
520 Madison Avenue
2nd Floor
New York, New York 10022
(212) 418-8700

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
 
with a copy to:
Marc H. Folladori
Mayer, Brown, Rowe & Maw LLP
700 Louisiana Street
Suite 3400
Houston, Texas 77002
(713) 238-3000
 
 
February 28, 2007

(Date of Event Which Requires Filing of this Statement)
 
If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨


 
CUSIP NO. L20708-10-0
 
1
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY)
 
Fortis Bank S.A./N.V.
IRS ID No. 98-0507899
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP  
(a) x
(b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
AF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
 
o
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Belgium
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
7
SOLE VOTING POWER
 
-0-
8
SHARED VOTING POWER
 
300,000
9
SOLE DISPOSITIVE POWER
 
-0-
10
SHARED DISPOSITIVE POWER
 
300,000
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
300,000
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
x
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
3.9%
14
TYPE OF REPORTING PERSON
 
CO
 

 
CUSIP NO. L20708-10-0
 
1
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY)
 
FB Transportation Capital LLC
IRS ID No. 13-3015333
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP  
(a) x
(b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
AF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
 
o
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Delaware
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
7
SOLE VOTING POWER
 
-0-
8
SHARED VOTING POWER
 
-0-
9
SOLE DISPOSITIVE POWER
 
-0-
10
SHARED DISPOSITIVE POWER
 
-0-
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
-0-
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
x
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
0.0%
14
TYPE OF REPORTING PERSON
 
OO
 

 
CUSIP NO. L20708-10-0
 
1
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY)
 
CRX Acquisition Ltd.
IRS ID No. - Applied For
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP  
(a) x
(b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
AF; OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
 
o
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Delaware
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
7
SOLE VOTING POWER
 
-0-
8
SHARED VOTING POWER
 
-0-
9
SOLE DISPOSITIVE POWER
 
-0-
10
SHARED DISPOSITIVE POWER
 
-0-
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
-0-
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
x
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
0.0%
14
TYPE OF REPORTING PERSON
 
CO
 

 
ITEM 1.
SECURITY AND ISSUER.
 
This statement on Schedule 13D (the “Schedule 13D”) relates to the common shares, par value $2.00 per share (the “Common Shares”), of The Cronos Group (the “Issuer”), a Luxembourg limited liability company (société anonyme holding) organized and existing under the laws of the Grand Duchy of Luxembourg (the “Company”). The principal executive offices of the Issuer are located at 5, rue Guillaume Kroll, L-1882 Luxembourg.
 
ITEM 2.
IDENTITY AND BACKGROUND.
 
This statement is being filed by Fortis Bank S.A./N.V. (“Fortis Bank”), FB Transportation Capital LLC (“FB Transportation”) and CRX Acquisition Ltd. (“CRX”) (Fortis Bank, FB Transportation and CRX being referred to, collectively, as the “Reporting Persons”).(1) 
 
Fortis Bank is a Belgian corporation engaged in commercial banking activities. Fortis Bank is part of the Fortis Group, an international financial services provider engaged in banking and insurance. FB Transportation is a Delaware limited liability company that is a wholly-owned subsidiary of Fortis Bank. FB Transportation is part of the transportation sector of Fortis Bank’s merchant banking group, which provides financial products and services for corporate clients and institutional investors. CRX is a Bermuda exempted company formed for the purposes of acquiring the assets and assuming the liabilities of the Issuer, and following that transaction, will be engaged in the business of managing marine shipping containers acquired from the Issuer as well as other marine container assets. CRX is currently 100% owned by FB Transportation, but it is anticipated that immediately following the closing of the Transactions described in Item 4 below, FB Transportation will own less than 40% of the outstanding common shares of CRX.
 
The principal address of Fortis Bank is Montagne du Parc 3, 1000 Brussels, Belgium. The principal address of FB Transportation and CRX is 520 Madison Avenue, 2nd Floor, New York, New York 10022.
 
The name, business address, present principal occupation or employment and citizenship of each executive officer and director of Fortis Bank are set forth in Schedule I-A hereto and are incorporated herein by reference. The name, business address, present principal occupation or employment and citizenship of each member and executive officer of FB Transportation are set forth in Schedule I-B hereto and are incorporated herein by reference. The name, business address, present principal occupation or employment and citizenship of each executive officer and director of CRX are set forth in Schedule I-C hereto and are incorporated herein by reference.
 
During the last five years, none of the Reporting Persons, nor, to the knowledge of each of the Reporting Persons, any of the persons listed on Schedules I-A, I-B or I-C hereto, (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree, or final order enjoining future violations of, or prohibiting or mandating activities subject to federal or state securities laws or finding any violation with respect to such laws.
 

(1)
Neither the present filing nor anything contained herein shall be construed as an admission that any Reporting Person constitutes a “person” for any purpose other than for compliance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

1


The Reporting Persons have entered into a Joint Filing Agreement, dated as of March 12, 2007, a copy of which is attached hereto as Exhibit 7.01.
 
ITEM 3.
SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
 
The description of the “Transactions” set forth in Item 4 below is incorporated by reference in its entirety into this Item 3.
 
CRX estimates that the total amount of funds necessary to consummate the Transactions will range between approximately $245.0 million and $260.0 million. Of this amount, approximately $11.0 million to $15.0 million cash will be funded by equity contributions to CRX by (i) FB Transportation, (ii) current members of the senior management team of the Issuer and (iii) third-party investors. CRX has received equity commitment letters from FB Transportation and each member of Cronos’ senior management team, under which FB Transportation and these individuals have agreed severally to make aggregate capital contributions of up to $11.0 million to CRX for common shares of CRX. It is currently expected that third-party investors will contribute up to an additional $5.0 million to CRX for common shares of CRX. The remainder of the total amount necessary to complete the Transactions will be the amount that FB Transportation pays to purchase the marine container assets and the joint venture interest from CRX, as described in Item 4 below. From these equity contribution and purchase price sums, CRX will repay certain outstanding indebtedness of the Issuer and its subsidiaries and will pay certain transaction costs. The source of the cash equity contribution and such purchase price to be paid by FB Transportation to CRX will be from advances to FB Transportation from affiliates of Fortis Bank.
 
The amounts described above should be considered approximations only. Because the actual amounts of indebtedness outstanding and actual asset values will not be known until on or about the time of the closing of the Transactions, these amounts are estimated and are subject to change.
 
ITEM 4.
PURPOSE OF TRANSACTIONS.
 
On February 28, 2007, the Issuer entered into an Asset Purchase Agreement (the “Assets Agreement”) with FB Transportation and CRX. The Assets Agreement provides that, upon the terms and subject to the conditions set forth in such agreement, CRX will acquire all of the assets of the Issuer and assume all of its liabilities (the “Assets Sale”). The purchase price for the assets is approximately $133.7 million. This price was negotiated to enable the Issuer to make a distribution in liquidation to its shareholders of $16.00 per share, without interest and subject to any required withholding of taxes. The closing sales price per share of the Common Shares of the Issuer on The Nasdaq Global Market on February 28, 2007, prior to the public announcement of the Assets Agreement, was $14.96.
 
The summary of the Assets Agreement contained in this Item 4 does not purport to be complete and is qualified in its entirety by reference to the Assets Agreement, which is referenced herein as Exhibit 7.02 and incorporated by reference in its entirety into this Item 4.
 
FB Transportation has agreed with CRX that at the same time as the Assets Sale, it will purchase from CRX substantially all of the marine container assets to be acquired by CRX from the Issuer and its subsidiaries. In connection with these purchases, FB Transportation will also purchase from CRX the common shares in CF Leasing Ltd., a Bermuda exempted company that CRX will acquire from the Issuer as part of the Assets Sale (“CF Leasing”). CF Leasing is a joint venture that is currently 50%-owned by a subsidiary of the Issuer and 50%-owned by FB Transportation. CF Leasing owns and invests in marine container assets that are currently managed by the Issuer and its subsidiaries. The proceeds from these purchases by FB Transportation will be applied by CRX to pay the purchase price for the Assets Sale and
2


to assume, repay or refinance indebtedness of the Issuer and its subsidiaries outstanding as of the closing date of the Assets Sale.
 
The Assets Sale and its related transactions (including the subsequent liquidation and dissolution of the Issuer), the purchase of the owned marine container assets and joint venture interest by FB Transportation from CRX, and the assumption, repayment and refinancing of indebtedness of the Issuer and its subsidiaries, are referred to herein collectively as the “Transactions.”
 
Following the completion of the Transactions, FB Transportation and CF Leasing would together own substantially all of the marine container assets formerly owned by the Issuer and its subsidiaries. CRX would manage the leasing activities concerning the marine container assets owned by FB Transportation and CF Leasing, in addition to other marine container assets owned by third parties.
 
The closing of the Assets Sale and related matters will be subject to (i) the consent of certain third parties and (ii) the approval by the Issuer’s shareholders of the Assets Sale and related matters (including shareholder approval of a plan of liquidation and dissolution) at a shareholder meeting or shareholder meetings to be called and convened by the Issuer.
 
If the Assets Sale and related matters are consummated, it is expected that the Issuer’s Common Shares will be delisted from The Nasdaq Global Market and will cease to be registered under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). CRX will be privately owned by certain members of the senior management team of the Issuer, FB Transportation and third-party investors. It is currently anticipated that immediately following the completion of the Transactions, FB Transportation will own, of record and beneficially, less than 40% of the total outstanding common shares of CRX.
 
In connection with the execution of the Assets Agreement, on February 28, 2007, CRX entered into a Support Agreement (the “Support Agreement”) with certain director and management shareholders of the Issuer and their affiliates (the “Support Shareholders”). The Support Shareholders are (i) S. Nicholas Walker (a director of the Issuer), (ii) The Lion Fund Limited, York Lion Fund, L.P. and YorkProp Limited (affiliates of Mr. Walker), (iii) Dennis J. Tietz (the chief executive officer of the Issuer) and (iv) Peter J. Younger (the president of the Issuer). The Support Agreement obligates the Support Shareholders to: (i) vote all Common Shares owned by them in favor of the Assets Agreement and the transactions contemplated by the Assets Agreement, (ii) vote against any merger, business combination, or similar transaction (other than the Assets Sale and the other transactions contemplated by the Assets Agreement), and (iii) not transfer his or its Common Shares pending completion of the shareholder meetings to be called to approve the Assets Sale and the related transactions, or until the earlier termination of the Assets Agreement. The Support Shareholders also agreed to grant irrevocable proxies to CRX to vote the Common Shares owned by them, and they agreed that they would not transfer their Common Shares to third parties or enter into any voting agreement, voting trust or similar arrangement, or grant any other proxies with respect to their shares, except as permitted under the Support Agreement. The Support Shareholders own, in the aggregate, approximately 19% of the outstanding Common Shares of the Issuer.
 
The Issuer’s board of directors also determined that the transactions contemplated by the Assets Agreement, including the Assets Sale, represented a “permitted offer” under the Issuer’s shareholders’ rights agreement, dated as of October 28, 1999. As a result, any requirement to issue any rights as provided under the rights agreement would not be triggered by the filing of a Schedule 13D due to the execution of the Support Agreement.
3


It is expected that following the closing of the Assets Sale, (i) Peter J. Younger, the current president of the Issuer, will become the chief executive officer of CRX, (ii) Frank P. Vaughan, the chief financial officer of the Issuer, will become the chief financial officer of CRX and (iii) John C. Kirby, the current senior vice president-operations of the Issuer, will serve CRX in a similar capacity. In addition, Dennis J. Tietz, currently the chairman and chief executive officer of the Issuer, is expected to become vice-chairman of the board of directors of CRX.
 
Messrs. Tietz, Younger, Vaughan and Kirby (the “Management Shareholders”) entered into equity commitment letter agreements with CRX dated February 28, 2007, to purchase, immediately prior to the closing of the Assets Sale, for an aggregate amount of $2.0 million cash, a number of common shares of CRX that are expected to represent approximately 17% of the total outstanding common shares of CRX as of the closing date. The Management Shareholders may, in their discretion, and at the same per share price, purchase up to an additional $2.0 million of additional common shares of CRX. In that event, the Management Shareholders would be expected to own approximately 34% of the total outstanding common shares of CRX as of the closing date. The balance of the common shares of CRX would be purchased by FB Transportation and by third-party investors, at the same price per share as the Management Shareholders paid. It is currently expected that immediately following the completion of the Transactions, the entire board of directors of CRX would (for at least a two-year period) consist of five members: Messrs. Younger and Tietz, two directors to be designated by FB Transportation and one director to be designated by the third-party investors.
 
Messrs. Tietz and Younger have also agreed to enter into employment agreements with CRX to be effective at the closing of the Assets Sale. Mr. Younger’s employment agreement will provide that he be granted an award of restricted common shares of CRX, to vest over time (or to vest sooner upon a “change in control” of CRX, CRX’s termination of Mr. Younger without cause or Mr. Younger’s resignation for “good reason”). Messrs. Vaughan’s and Kirby’s current employment agreements with a subsidiary of the Issuer are expected to remain in effect and will not be affected by the Assets Sale and the related transactions contemplated under the Assets Agreement.
 
The Assets Agreement requires the Issuer, subject to certain exceptions: (i) to conduct its business in the ordinary course and consistent with past practice during the period between execution of the Assets Agreement and closing of the Assets Sale, and (ii) not to engage in certain transactions outside of the ordinary course of its business during such period. The Assets Agreement prohibits the Issuer from making dividend distributions to its shareholders prior to closing of the Assets Sale or the earlier termination of the Assets Agreement, except for: (i) a $0.08 per share dividend declared by the Issuer’s board of directors for the first calendar quarter of 2007, and (ii) if the closing of the Assets Sale has not occurred by August 15, 2007 at the discretion of the Issuer’s board of directors, a dividend for the third calendar quarter of 2007 that will be consistent with the dividend declared by the Issuer’s board on November 9, 2006.
 
The obligations of CRX and FB Transportation under the Assets Agreement are guaranteed by Fortis Bank’s Cayman Islands Branch.
 
The Reporting Persons do not plan to acquire additional Common Shares of the Issuer or dispose of any Common Shares, although they do reserve the right to do so. The Assets Agreement and the transactions contemplated thereby could result in one or more of the actions specified in clauses (a)-(j) of Item 4 of Schedule 13D, including the acquisition or disposition of additional securities of the Issuer, a merger or other extraordinary transaction involving the Issuer, a change to the present board of directors of the Issuer, a change to the present capitalization or dividend policy of the Issuer, the delisting of the Issuer's securities from the Nasdaq Global Market and the causing of a class of equity securities of the Issuer to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act.
4


ITEM 5.
INTEREST IN SECURITIES OF THE ISSUER.
 
(a)    As of the date hereof, the Reporting Persons may be deemed to beneficially own 300,000 Common Shares, representing approximately 3.9% of the Common Shares outstanding (based on 7,645,673 total outstanding Common Shares). The Common Shares are owned by FB Aviation & Intermodal Finance Holding B.V., a Dutch private limited liability company, and Fortis Bank (Nederland) N.V., a Dutch public limited liability company, both indirect subsidiaries of Fortis Bank and affiliates of the Reporting Persons. In 1999, 150,000 of these Common Shares were issued to Fortis Bank (Nederland) N.V. by the Issuer in lieu of restructuring fees in connection with Fortis Bank’s participation in a refinancing of the Issuer’s indebtedness at that time. In 2005, FB Aviation & Intermodal Finance Holding B.V. acquired 150,000 Common Shares from another lender-participant in the 1999 refinancing transaction. Both transactions were privately-negotiated transactions exempt from registration under the Securities Act of 1933, as amended. Fortis Bank is also a lender and agent under two credit facilities to CF Leasing and to a subsidiary of the Issuer for purposes of purchasing marine shipping containers and for general corporate purposes. These facilities are expected to be refinanced prior to, or as part of, the Transactions.
 
As a result of the matters described in Item 4 above, the Reporting Persons may be deemed to constitute a "group," within the meaning of Section 13(d)(3) of the Exchange Act, with, among others, the Management Shareholders. The Reporting Persons do not have affirmative information about any Common Shares that may be beneficially owned by the Management Shareholders, other than (i) the 1,458,813 Common Shares reported as being deemed beneficially owned by S. Nicholas Walker in an Amendment No. 5 to his Schedule 13D filed with the SEC on March 5, 2007, and (ii) 352,145 Common Shares (includes 300,000 shares subject to outstanding currently exercisable options) beneficially owned by Mr. Tietz, 24,950 Common Shares beneficially owned by Mr. Younger, 43,000 Common Shares (includes 35,000 shares subject to outstanding currently exercisable options) beneficially owned by Mr. Vaughan and 103,000 Common Shares (includes 95,000 shares subject to outstanding currently exercisable options) beneficially owned by Mr. Kirby, as reported in the Issuer’s definitive proxy statement for the Issuer’s annual meeting of shareholders held on June 8, 2006 filed with the SEC, and Statements of Changes in Beneficial Ownership on Form 4 for these individuals as filed with the SEC.
 
Each Reporting Person hereby disclaims membership in any "group" with any person other than the Reporting Persons, and disclaims beneficial ownership of any shares of Common Stock that may be or are beneficially owned by Mr. Walker, The Lion Fund Limited, York Lion Fund, L.P., York GP, Ltd., York Asset Management Limited, YorkProp Limited, Mr. Tietz, Mr. Younger, Mr. Vaughan and Mr. Kirby.
 
In accordance with Securities and Exchange Commission Release No. 34-39538 (January 12, 1998) (the “Release”), this filing reflects the securities beneficially owned by certain operating units of the Fortis Group and its subsidiaries and affiliates (the “Fortis Reporting Units”). This filing does not reflect securities, if any, beneficially owned by any other operating units of the Fortis Group whose ownership of securities is disaggregated from that of the Fortis Reporting Units in accordance with the provisions of that Release. The Fortis Reporting Units disclaim beneficial ownership of the securities beneficially owned by (i) any client accounts with respect to which the Fortis Reporting Units or their employees have voting or investment discretion, or both, and (ii) certain investment entities of which any of the Fortis Reporting Units acts as manager, to the extent interests in such entities are held by persons other than the Fortis Reporting Units.
 
(b)    The description set forth in Item 5(a) above is incorporated by reference in its entirety into this Item 5(b).
5


(c)    The Reporting Persons have not effected any transactions in the Issuer’s Common Shares within the past 60 days.
 
(d)    Except for the 300,000 Common Shares owned by FB Aviation & Intermodal Finance Holding B.V. and Fortis Bank (Nederland) N.V., as noted above, and except for any clients of the Fortis Group who may have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any Common Shares held in managed accounts, no other person is known by any of the Reporting Persons to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any shares of Common Shares.
 
(e)    Not applicable.
 
ITEM 6.
CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER
 
The description of the Transactions and related matters set forth in Item 4 above is incorporated by reference in its entirety into this Item 6.
 
ITEM 7.
MATERIAL TO BE FILED AS EXHIBITS
 
EXHIBIT
DESCRIPTION
7.01
Joint Filing Agreement, dated as of March 12, 2007 by and among Fortis Bank S.A./N.V., FB Transportation Capital LLC and CRX Acquisition Ltd.
7.02
Asset Purchase Agreement dated February 28, 2007 by and among The Cronos Group, FB Transportation Capital LLC and CRX Acquisition Ltd. (incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K filed by The Cronos Group with the Securities and Exchange Commission on March 2, 2007).
7.03
FB Transportation Capital LLC Equity Commitment Letter dated February 28, 2007.
7.04
Guarantee of Fortis Bank S.A./N.V. dated February 28, 2007 (incorporated by reference to Exhibit 2.2 of the Current Report on Form 8-K filed by The Cronos Group with the Securities and Exchange Commission on March 2, 2007).
7.05
Support Agreement dated February 28, 2007 by and among CRX Acquisition Ltd., S. Nicholas Walker, The Lion Fund Limited, York Lion Fund, L.P., YorkProp Limited, Dennis J. Tietz and Peter J. Younger (incorporated by reference to Exhibit 99.1 to Amendment No. 5 to Schedule 13D filed with the SEC on March 5, 2007 by S. Nicholas Walker, The Lion Fund Limited, York Lion Fund, L.P., York GP, Ltd., York Asset Management Limited and YorkProp Limited).
7.06
Power of Attorney, dated March 12, 2007, relating to Fortis Bank S.A./N.V.
7.07
Power of Attorney, dated March 12, 2007, relating to FB Transportation Capital LLC.
7.08
Power of Attorney, dated March 12, 2007, relating to CRX Acquisition Ltd.
 
6

 
SIGNATURES
 
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
 
Dated: March 12, 2007
 
FORTIS BANK S.A./N.V.
 
 
By:  /s/ Adam DiMartino                                     
Name: Adam DiMartino
Title: Attorney-in-fact
 
 
FB TRANSPORTATION CAPITAL LLC
 
 
By:  /s/ Adam DiMartino                                     
Name: Adam DiMartino
Title: Attorney-in-fact
 
 
CRX ACQUISITION LTD.
 
 
By:  /s/ Adam DiMartino                                     
Name: Adam DiMartino
Title: Attorney-in-fact
7

 
SCHEDULE I-A
 
FORTIS BANK S.A./N.V.
 

 
The name of each member of the executive committee of Fortis Bank S.A./N.V. is set forth below.
 
The business address of each executive committee member listed below is c/o Montagne du Parc 3, 1000 Brussels, Belgium.
 
Each person is a citizen of Belgium except for Messrs. van Harten and Kloosterman, both of whom are citizens of The Netherlands. The present principal occupation or employment of each of the listed persons is set forth below.
 

NamePresent
Principal Occupation
   
Jean-Paul Votron Chief Executive Officer
Herman Verwilst Deputy Chief Executive Officer and Chief Operating Officer
Gilbert Mittler Chief Financial Officer    
Jos Clijsters Chief Executive Officer - Retail Banking
Filip Dierckx Chief Executive Officer - Merchant & Private Banking
Peer van Harten Chief Executive Officer - Insurance
Jozef De Mey Chief Investments Officer    
Karel De Boeck Chief Risk Officer
Lex Kloosterman Chief Strategy Officer
                         
 

 
SCHEDULE I-B
 
FB TRANSPORTATION CAPITAL LLC
 
FB Transportation Capital LLC is a single-member Delaware limited liability company that has no directors or officers. FB Transportation Capital LLC is managed by a Board of Managers in accordance with the Delaware Limited Liability Company Act, as amended. The name, position, present principal occupation and citizenship of each member of the board of managers of FB Transportation Capital LLC are set forth below.
 
The business address for all of the managers listed below is c/o 520 Madison Avenue, 2nd Floor, New York, New York 10022.
 
Name
Present Principal Occupation
Citizenship
Waldo Abbot
U.S. Country Manager – Fortis Bank
U.S.
Jean-Pierre Paulet
Deputy Country Manager – Fortis Bank
Belgium
Milton J. Anderson
Managing Director – Aviation & Intermodal Finance Group of Fortis Merchant Banking
U.S.
Frans van Lanschot
Member of the Executive Board - Fortis Bank (Nederland) N.V.
The Netherlands
Merijn Zondag
Managing Director - Principal Finance
The Netherlands
 

 
SCHEDULE I-C
 
The name, business address, present principal occupation and citizenship of each director and executive officer of CRX Acquisition Ltd., and his or her respective position with CRX Acquisition Ltd. are set forth below.
 
Name
Business Address
Present Principal
Occupation
Citizenship
Position with
CRX Acquisition Ltd.
Milton J. Anderson
Fortis Capital Corp.
11001 West 120th Avenue, Suite 400
Broomfield, Colorado 80021
Managing Director - Aviation & Intermodal Finance Group of Fortis Merchant Banking
U.S.
Director and President
Menno Albert van Lacum
Fortis Capital Corp.
Two Embarcadero Center, Suite 1330
San Francisco, California 94111
Director - Aviation & Intermodal Finance Group of Fortis Merchant Banking
The Netherlands
Director and Vice President
 

 
EX-7.01 2 ex7-01.htm Unassociated Document
EXHIBIT 7.01
 
JOINT FILING AGREEMENT
 
The undersigned hereby agree that the Statement on Schedule 13D filed herewith (and any amendments thereto), relating to the Common Shares, par value $2.00 per share, of The Cronos Group is being filed jointly with the Securities and Exchange Commission pursuant to Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, on behalf of each such person.
 
Dated: March 12, 2007
 
FORTIS BANK S.A./N.V.
 
 
By:  /s/ Adam DiMartino                         
Name: Adam DiMartino
Title: Attorney-in-fact
 
 
FB TRANSPORTATION CAPITAL LLC
 
 
By:  /s/ Adam DiMartino                         
Name: Adam DiMartino
Title: Attorney-in-fact
 
 
CRX ACQUISITION LTD.
 
 
By:  /s/ Adam DiMartino                         
Name: Adam DiMartino
Title: Attorney-in-fact

EX-7.03 3 ex7-03.htm
EXHIBIT 7.03
 
February 28, 2007
 
 
To:    CRX Acquisition Ltd. 
  c/o Fortis Capital Corporation 
  153 East 53rd St., 27th Floor 
  New York, New York 10022 
        
Re: Dolphin, Inc. - FB Transportation Capital LLC - Equity Commitment Letter
 
Gentlemen:
 
Reference is made to the Asset Purchase Agreement, dated as of the date hereof (as it may be amended from time to time, the “Asset Purchase Agreement”), by and among CRX Acquisition Ltd., a Bermuda exempted company (“Purchaser”), FB Transportation Capital LLC, a Delaware limited liability company acting in its capacity as sponsor (“Sponsor”), and The Cronos Group, a limited liability company (société anonymé holding) organized and existing under the laws of the Grand Duchy of Luxembourg (the “Company”), pursuant to which Purchaser, or a permitted assignee of Purchaser, will acquire the assets and assume the liabilities of the Company subject to and in accordance with its terms. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Asset Purchase Agreement.
 
The undersigned is entering into this commitment letter agreement (“Equity Commitment Letter”) at or about the same time that certain other holders of Common Shares of the Company are entering into Equity Commitment Letters with Purchaser having terms substantially similar hereto. The undersigned, such other Persons who are parties to such other Equity Commitment Letters and any other Persons who become parties to Equity Commitment Letters with Purchaser after the date hereof, are collectively referred to herein as the “Investors”. This letter is being delivered to Purchaser in connection with the execution and delivery of the Asset Purchase Agreement by Purchaser, Sponsor and the Company.
 
This letter confirms the commitment of the undersigned, subject to the conditions set forth herein, to contribute and deliver to Purchaser at or immediately prior to the Closing cash in the amount set forth on Schedule A attached hereto (and which is made a part hereof) (the “Committed Cash”) in exchange for that number of common shares of Purchaser, US$0.01 par value per common share (such common shares of Purchaser being referred to herein as the “Subject Equity Securities”) set forth on Schedule A; provided, that the undersigned shall not, under any circumstances, be obligated to contribute to Purchaser an amount of cash in excess of the amount of Committed Cash set forth on Schedule A. The undersigned’s obligation hereunder to contribute and deliver the Committed Cash to Purchaser is herein referred to as the “Commitment”), and such obligation is subject in all respects to (a) the terms of this letter, (b) the satisfaction of the conditions precedent to Purchaser’s obligations to effect the Closing, (c) the performance in full by the other Investors of their obligations under their respective Equity Commitment Letters and (d) the issuance to the undersigned of the Subject Equity Securities (all of which will be deemed to occur immediately prior to the Closing). The other terms and conditions regarding the undersigned’s proposed investment in Purchaser are summarized in Schedule B, which is attached hereto and made a part hereof.
 
1

 
The undersigned’s obligation hereunder to contribute and deliver to Purchaser the Committed Cash will terminate automatically and immediately upon the earlier to occur of the following: (a) the termination of the Asset Purchase Agreement and (b) the Closing.
 
The undersigned and Purchaser also each agree to enter into, effective upon the Closing, definitive agreements reflecting the terms and conditions set forth in this letter and those referred to or summarized in Schedule B hereof, with such agreements, in each case, containing such other terms as are (a) not materially inconsistent with the terms and conditions hereof and those summarized in Schedule B and (b) not materially adverse to the undersigned or Purchaser.
 
The rights and obligations under this Equity Commitment Letter may not be assigned by either party hereto without the prior written consent of Purchaser, and any attempted assignment shall be null and void and of no force or effect, except as otherwise permitted in this paragraph. Notwithstanding the foregoing, the undersigned may assign all or a portion of its rights and obligations hereunder to one or more of its affiliated entities (any such affiliated entities are referred to herein as “Permitted Assignees”); provided, however, that no such assignment by the undersigned shall relieve the undersigned of its obligations under this Equity Commitment Letter. This letter may not be amended, and no provision hereof waived or modified, except by an instrument in writing signed by Purchaser and the undersigned. Notwithstanding the foregoing, the undersigned and Purchaser acknowledge and agree that the structure and terms of the proposed investment contemplated hereunder may be subject to change upon and subject to the mutual consent of the parties hereto.
 
This Equity Commitment Letter shall be binding on the undersigned and solely for the benefit of Purchaser, and nothing set forth in this letter shall be construed to confer upon or give to any person other than Purchaser any benefits, rights or remedies under or by reason of, or any rights to enforce, the commitment expressed hereunder or any other provisions of this Equity Commitment Letter.
 
The undersigned represents and warrants to Purchaser that: (i) the undersigned has the requisite limited liability company power and authority to execute and deliver this Equity Commitment Letter and to fulfill and perform the undersigned's obligations hereunder and (ii) this Equity Commitment Letter has been duly and validly executed and delivered by the undersigned and constitutes a legal, valid and binding agreement of the undersigned enforceable by Purchaser against the undersigned in accordance with its terms.
 
Notwithstanding any matter that may be otherwise expressed or implied in this Equity Commitment Letter, each party hereto, by its acceptance of the benefits hereof, covenants, agrees and acknowledges that no recourse hereunder or under any documents or instruments delivered in connection herewith shall be had against any officer, director, agent, employee, affiliate or assignee of the undersigned or any officer, director, agent, employee, affiliate or assignee of any of the foregoing, whether through the enforcement of any judgment or assessment or by any legal or equitable proceedings, or by virtue of any statute, regulation or other applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on, or otherwise be incurred by, any officer, director, agent, employee, affiliate or assignee of the undersigned or any officer, director, agent, employee, affiliate or assignee of any of the foregoing, as such, for any obligations of the undersigned under this letter or any documents or instruments delivered in connection herewith or for any claim based on, in respect of, or by reason of, such obligations.
 
2

 
This letter may be executed in counterparts. This letter and any related dispute shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York applicable to contracts executed in and to be performed in that State. Each of the parties hereto (i) consents to submit himself or itself to the personal jurisdiction of any state or federal court located in the Borough of Manhattan of The City of New York in the event any dispute arises out of this letter or any of the transactions contemplated by this letter, (ii) agrees that he or it (as the case may be) will not attempt to deny or defeat such personal jurisdiction or venue by motion or other request for leave from any such court and (iii) agrees that he or it (as the case may be) will not bring any action relating to this letter or any of the transactions contemplated by this letter in any court other than such courts sitting in the Borough of Manhattan of The City of New York.
 
EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LETTER OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
 
[Remainder of page intentionally left blank]
 


3


 
 
    Very truly yours, 
     
    FB TRANSPORTATION CAPITAL LLC
     
   
   
By:  /s/ Milton Anderson

   
Name:  Milton Anderson
   
Title: Chief Executive Officer
Accepted and Acknowledged as of
the date first written above:
 
CRX ACQUISITION LTD.
 
 
By:  /s/ Milton Anderson

Name: Milton Anderson
Title: President
 
4

 
SCHEDULE A


Name: FB Transportation Capital LLC



Amount of Committed Cash
Number of Common Shares of Purchaser (Subject Equity Securities)
$4,800,000
4,800,000







 

 
SCHEDULE B

 
SUMMARY OF TERMS
 
FOR COMMON STOCK FINANCING OF
 
CRX ACQUISITION LTD.
 
 
FEBRUARY 28, 2007
 

This Summary of Terms summarizes the principal terms of the proposed equity financing of a Bermuda exempted company (“Purchaser”) in connection with its formation and its subsequent capitalization. It is intended that Purchaser will (i) acquire all of the assets and assume all of the liabilities of The Cronos Group, a limited liability company (société anonyme holding) organized and existing under the laws of the Grand Duchy of Luxembourg (“Dolphin”), (ii) sell and transfer the interests in container assets formerly owned by Dolphin and its affiliates to FB Transportation Capital LLC, a Delaware limited liability company (“FBT”), or an affiliate or affiliates thereof (the transactions referred to in clauses (i) and (ii) above being hereinafter referred to collectively as the “Transaction”), and (iii) manage container assets owned by CF Leasing Limited (a Bermuda exempted company) and/or any of its affiliates (and their respective successors and assigns) following consummation of the Transaction.

It is intended that Dennis J. Tietz, Peter J. Younger, Frank P. Vaughan and John C. Kirby, current officers and/or directors of Dolphin (such individuals being referred herein to as the “Management Parties”) will acquire, along with FBT, common shares, US $0.01 par value, of Purchaser (the “Common Shares”) in connection with Purchaser’s capitalization in connection with the Transaction. It is presently anticipated that a third party investor or investors that are accredited investors (“Third Party Investors”) will join in such acquisition of Common Shares with FBT and the Management Parties. FBT, the Third Party Investors and the Management Parties are sometimes referred to herein as the “Investor Parties.” The Third Party Investors that will make equity investments in Purchaser in accordance with this Summary of Terms will be subject to the prior approval by FBT, which approval will not be unreasonably withheld.

This Summary of Terms includes the basic proposed rights, preferences and obligations of the Investor Parties, which are to be in embodied in the governance documents of Purchaser and other agreements among the Investor Parties. In addition to the terms set forth in this Summary of Terms, the Investor Parties intend to negotiate additional customary terms for inclusion in the governance documents and such other agreements. All sums in dollars contained herein shall refer to U.S. Dollars.
 
Offering Terms
 
Closing Date:
As of the closing of the Transaction (the “Closing”).

 
B-1


Investor Parties:
At Closing, the Management Parties will acquire a minimum of 2,000,000 Common Shares of Purchaser, which may be increased up to a maximum of 4,000,000 Common Shares of Purchaser, in exchange for their contribution of cash.
 
At Closing, FBT will acquire 4,800,000 Common Shares of Purchaser in exchange for its contribution of cash.
 
At Closing, Third Party Investors will acquire up to 5,000,000 Common Shares of Purchaser, in exchange for their contribution of cash. In the event that Management Parties and Third Party Investors do not invest at least $7,000,000 in cash at Closing to purchase Common Shares of Purchaser, then FBT will agree to purchase an additional number of Common Shares for a sum that is equal to the amount by which $7,000,000 exceeds the total amount actually invested by the Third Party Investors and Management Parties. 
   
Price Per Common Share of Purchaser to be Acquired:
US $1.00 per share
   
Counsel and Expenses:
Each party shall pay its own expenses incurred in connection with the matters contemplated herein, including the completion of the Transaction and/or the termination of the definitive agreements governing same, irrespective of the completion of the transactions contemplated hereunder.
   
 
CHARTER

General:
Except as described below, the Charter will include standard terms. “Blank Check” preferred shares will be authorized permitting the creation and issuance of preferred shares by the Board of Directors of Purchaser (the “Board”) in the future, although the issuance of any preferred shares will be subject to the terms and conditions of the Shareholders Agreement described below. Supermajority shareholder voting provisions will be required in connection with the approval and adoption of certain transactions and events, as described below under “Liquidation Events”.
   
 
SHAREHOLDERS AGREEMENT
   
General:
The Shareholders Agreement will address how the Board is to be composed, how the Investor Parties and any other/future investors would fit into that scheme, and shareholder voting agreement provisions to enforce the intended Board composition terms and related matters.
 
B-2

 
   
Dividends:
Dividends will be paid in respect of Common Shares when, as and if declared by the Board of Directors, but subject in all respects to “Matters Requiring Board Approval” below.
   
Information Rights:
Purchaser will deliver to the holders of Common Shares (i) audited consolidated financial statements no later than 120 days after the end of each fiscal year, (ii) unaudited consolidated quarterly financial statements no later than 60 days after each quarter and (iii) such operational information as reasonably requested by FBT and the Third Party Investors.
   
Board Matters / Voting Rights:
Purchaser’s Board of Directors shall initially be composed of five members: (i) Dennis J. Tietz, (ii) Peter J. Younger, (iii) two directors designated by FBT and (iv) one director designated by the Third Party Investors. Any replacement of Messrs. Tietz or Younger must be first approved by FBT. However, only an Investor Party that has designated a director may remove that director. These arrangements will remain in effect for a period of not less than two years following the date of the Shareholders Agreement.
   
Restriction on Transfer:
The Investor Parties shall not transfer or otherwise dispose of any Common Shares or securities convertible, exercisable or exchangeable into Common Shares, except (i) to a permitted transferee (an affiliate, in the case of FBT and any Third Party Investor, and a trust or other estate planning vehicle, in the case of a Management Party), (ii) pursuant to a public offering approved in accordance with, and as described in, “Matters Requiring Board Approval” below, (iii) to the Company or (iv) as described under “Right of First Refusal/Tag Along,” “Drag Along” and “Repurchase of Management Shares” below.
   
Right of First Refusal/Tag Along:
Purchaser (first) and the Investor Parties (second) shall have a right of first refusal with respect to the proposed sale of any Common Shares or any other shares of Purchaser by any of the Investor Parties, in each case with a right of oversubscription of shares unsubscribed by the other holders of the Common Shares. In addition, before any Investor Parties may offer to sell collectively 60% or more of Purchaser’s outstanding Common Shares, they must give the other Investor Parties an opportunity to participate in such sale on a basis proportionate to the amount of securities held by the seller(s) and those held by the other participating Investor Parties.
 
B-3

 
   
Drag Along:
If one or more Investor Parties holding collectively at least 50% of Purchaser’s Common Shares propose to sell their Common Shares to a third party (not constituting permitted transferees), and such sale shall have been approved by FBT, then the selling Investor Parties shall have the right to require all of the other Investor Parties to include in such sale the Common Shares of such other Investor Parties.
   
Budget Approval:
Management will prepare and submit to the Board for approval, at least thirty days prior to the end of each fiscal year, (i) a comprehensive operating budget forecasting Purchaser’s revenues, expenses, and cash position on a quarter-to-quarter basis for the upcoming fiscal year and (ii) a quarter-to-quarter capital expenditure budget for the upcoming fiscal year.
   
Matters Requiring 75% Board Approval:
Purchaser will not, without the approval of a number of directors constituting at least 75% of the entire Board of Directors:
 
(A) (i) liquidate, dissolve or wind up the affairs of Purchaser, or effect any Liquidation Event (as defined below); (ii) authorize or create any class or series of, or increase the authorized number of, or issue, any shares (including the Common Shares), or any options, warrants or other rights or securities convertible into or exercisable or exchangeable for, or otherwise relating to, any such shares, options, warrants, rights or securities (collectively, “Equity Securities”) (other than with respect to a to-be-determined sum of Common Shares, including those issuable upon exercise of options, which may be issued to employees and directors of Purchaser under an equity incentive compensation plan to be approved by the Board of Directors, which shall also include the approval of both of the FBT Directors, after Closing), (iii) amend, alter, or repeal any provision of the charter, memorandum of association, byelaws and other constituent governing documents of Purchaser; (iv) purchase or redeem, or declare or pay any dividend on, any Equity Securities, (v) create or authorize the creation of any debt security; (vi) adopt or approve any stock option plan or other executive equity compensation plan or benefit plan (other than as referred to in sub-clause (ii) above; or (vii) increase or decrease the size of the Board of Directors.
 
(B) (i) make any loan or advance to, or acquire (whether by purchase, merger, amalgamation, recapitalization, consolidation or otherwise) any share or other securities of, any subsidiary or other corporation, partnership or other entity unless it is wholly-owned by Purchaser prior to such loan, advance or acquisition; (ii) make any loan or advance to any other person other than the extension of trade credit in the ordinary course of Purchaser’s business; (iii) guarantee any indebtedness except for indebtedness of any subsidiary or trade accounts of any subsidiary arising in the ordinary course of Purchaser’s business; (iv) make any investment other than investments in prime commercial paper, money market funds, certificates of deposit in any United States bank having a net worth in excess of $30,000,000 or obligations issued or guaranteed by the United States of America, in each case having a maturity not in excess of two years; (v) incur any aggregate indebtedness for borrowed money (including, for this purpose, capital lease obligations) that at any one time is (or would be upon its incurrence) greater than $250,000, except that trade credit incurred in the ordinary course of Purchaser’s business shall not be deemed indebtedness for borrowed money; (vi) make or commit to the making of any capital expenditure in excess of $1,000,000, that is not already included in a Board-approved budget; (vii) enter into or be a party to any transaction with any director, officer or employee of Purchaser or any “associate” (as that term is defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of any such person other than compensation arrangements for non-executive employees that are included in a Board-approved budget; (viii) hire, fire or change the compensation of any executive officer; (ix) change the principal business of Purchaser, enter new lines of business, or exit the current line of business; (xii) sell, transfer, pledge or encumber any property of Purchaser or its subsidiaries, other than certain customary “permitted” liens, liens created in connection with indebtedness permitted in sub-clause (v) above and liens granted in the ordinary course of Purchaser’s business; (xiii) settle any litigation where the amounts in dispute exceed $100,000; (xiv) acquire or dispose (except in the ordinary course of business) of assets having a value in excess of $200,000; or (xvii) make any amendment to Purchaser’s debt arrangements.
 
B-4

 
   
Liquidation Event:
Purchaser will use its commercially reasonable efforts to explore a Liquidation Event by the end of the fifth year following the date of the Shareholders Agreement. It is anticipated that such Liquidation Event will result in aggregate net proceeds of at least $30.0 million, and a minimum consideration to the Investor Parties attributed to the Common Shares of $2.50 per share (such price being subject to usual and customary adjustments for stock splits, reverse splits, stock dividends and similar recapitalization events).
 
Liquidation Event” means any transaction or series of related transactions constituting: (i) a voluntary or involuntary liquidation, reorganization, dissolution or winding up of Purchaser, (ii) a direct or indirect, transfer, in one or a series of transactions, of all or substantially all of the assets of Purchaser, (iii) a sale, amalgamation, merger, reclassification, recapitalization, restructuring, consolidation or business combination or any other similar transaction of or involving Purchaser, unless the holders of record of Purchaser’s voting stock as constituted immediately prior to the consummation of any such transaction will, immediately after any such transaction hold greater than 50% of the voting stock of the acquiring entity or surviving entity, or either of such entities’ parent, in approximately the same relative percentages after any such transaction as before any such transaction, or (iv) the consummation of any transaction by which any person or group (as referred to in Section 13(d)(3) of the Exchange Act), other than FBT, the Third Party Investors or any of their respective permitted transferees, is or becomes the “beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 50% or more of the voting stock of Purchaser.
 
Until the fifth anniversary of the date of the Shareholders Agreement, the approval of a Liquidation Event described in clauses (ii) or (iii) above in the immediately preceding paragraph shall also require the affirmative vote of Shareholders holding at least 65% of the outstanding shares of Common Shares. On and after the fifth anniversary of the date of the Shareholders Agreement, the approval of a Liquidation Event described in such clauses (ii) or (iii) shall require only the affirmative vote of Shareholders holding not less than the minimum statutorily required percentage of shares outstanding in order for such proposal to be approved. The Purchaser’s charter shall contain these provisions.
 
B-5

 
Purchase or Repurchase of Investor Parties’ Shares:
For the first five (5) years following the execution and delivery of the Shareholders Agreement, the Purchaser and the Shareholders will be subject to usual and customary share purchase and repurchase arrangement provisions to be determined by mutual agreement by and among the Purchaser and the Investor Parties (including the Management Parties), including rights of first refusal and rights to purchase and repurchase Common Shares upon the occurrence of certain events affecting an Investor Party, such as death, disability, divorce, foreclosure, retirement, insolvency, voluntary or involuntary transfer or sale and termination of employment of an Investor Party. Following such five (5) year period, it is currently intended that the Shareholders shall not be subject to such purchase or repurchase arrangements by or on behalf of the Purchaser and such other Investor Parties.
   
Termination:
All rights under the Shareholders Agreement shall terminate upon a Liquidation Event.
 
B-6

 
 
OTHER AGREEMENTS

Registration Rights Agreement:
The parties shall enter into a registration rights agreement that shall provide for three demand registrations by any person holding at least 15% of the registrable securities at any time following the earlier of (a) three (3) years after the date of the Closing and (b) six months following an initial public offering. In addition, the parties shall have piggyback registration rights and the agreement shall contain such other usual and customary provisions as the parties may agree.
   
Employment Agreements:
Messrs. Tietz and Younger will each enter into an employment agreement in a form reasonably acceptable to Purchaser and to FBT. Messrs. Tietz's and Younger's employment agreements shall each have terms and conditions substantially the same as those contained in the proposed draft employment agreement attached to their respective equity commitment letter as Exhibit I thereto. Messrs. Tietz and Younger will each waive any severance payments they may be entitled to under their existing employment arrangements. In addition, Mr. Younger will waive any transaction bonus that he may be entitled to receive upon the consummation of the Transaction. The terms and conditions of Messrs. Vaughan’s and Kirby’s current employment agreements with certain Subsidiaries of Dolphin shall remain in full force and effect and will not be affected by the Transaction.
   
Employee Stock Options, Restricted Shares, Etc.:
Subject to the provisions set forth above, the Board of Directors of Purchaser shall implement such employee stock option, restricted shares and such other equity compensation plans as it may determine.
   
Definitive Agreements; Governing Law:
This summary of terms does not constitute or create, and shall not be deemed to constitute or create, any legally binding or enforceable obligation, or any commitment to invest, on the part of any party referred to in this summary of terms. No such obligation shall be created except by the execution and delivery of definitive agreements containing such terms and conditions of as shall be agreed upon by the parties and then only in accordance with the terms and conditions of such agreements. All such definitive agreements shall be governed in all respects by the laws of the State of New York (except with respect to certain terms that shall be governed by the internal law of the jurisdiction of formation of Purchaser).
 
B-7

 
EX-7.06 4 ex7-06.htm Unassociated Document
EXHIBIT 7.06
 
POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS that FORTIS BANK S.A/N.V. (“Fortis Bank”) does hereby make, constitute and appoint each of Roy C. Andersen and Adam DiMartino, and either of them, (and any other employee of FORTIS BANK S.A./N.V. or FORTIS CAPITAL CORPORATION or one of their respective affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf,whether Fortis Bank is acting individually or as representative of others, any and all filings required to be made by Fortis Bank under the Securities Exchange Act of 1934, (as amended, the “Act”), with respect to securities which may be deemed to be beneficially owned by Fortis Bank under the Act, giving and granting unto each said attorney-in-fact full power and authority to act in the premises as fully and to all intents and purposes as Fortis Bank might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.
 
THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of Fortis Bank or one of its affiliates.
 
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of March 12, 2007.
 
FORTIS BANK S.A./N.V.
 
 
By:  /s/ Frans van Lanschot                        
Name: Frans van Lanschot
Title:   Director
 
 
By:  /s/ Nico Zwikker                                   
Name: Nico Zwikker
Title: Head of Compliance - Commercial & Private Banking and Fortis Investments

 
EX-7.07 5 ex7-07.htm Unassociated Document
EXHIBIT 7.07
 
POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS that FB TRANSPORTATION CAPITAL LLC (“FBT”) does hereby make, constitute and appoint each of Roy C. Andersen and Adam DiMartino, and either of them (and any other employee of FORTIS BANK S.A./N.V. or FORTIS CAPITAL CORPORATION or one of their respective affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf, whether FBT is acting individually or as representative of others, any and all filings required to be made by FBT under the Securities Exchange Act of 1934, (as amended, the “Act”), with respect to securities which may be deemed to be beneficially owned by FBT under the Act, giving and granting unto each said attorney-in-fact full power and authority to act in the premises as fully and to all intents and purposes as FBT might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.
 
THIS POWER OF ATTORNEY shall remain in full force and effect until revoked in writing by the undersigned.
 
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of March 12, 2007.
 
 
FB TRANSPORTATION CAPITAL LLC
 
 
By:  /s/ Menno van Lacum                    
Name: Menno van Lacum
Title: Senior Vice President
 
 
By:  /s/ Milton Anderson                    
Name: Milton Anderson
Title: Chief Executive

EX-7.08 6 ex7-08.htm Unassociated Document
EXHIBIT 7.08
 
POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS that CRX ACQUISITION LTD. (“CRX”) does hereby make, constitute and appoint each of Roy C. Andersen and Adam DiMartino (and any other employee of FORTIS BANK S.A./N.V. or FORTIS CAPITAL CORPORATION or one of their respective affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf, whether CRX is acting individually or as representative of others, any and all filings required to be made by CRX under the Securities Exchange Act of 1934, (as amended, the “Act”), with respect to securities which may be deemed to be beneficially owned by CRX under the Act, giving and granting unto each said attorney-in-fact full power and authority to act in the premises as fully and to all intents and purposes as CRX might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.
 
THIS POWER OF ATTORNEY shall remain in full force and effect until revoked in writing by the undersigned.
 
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of March 12, 2007.
 
 
CRX ACQUISITION LTD.
 
 
By:  /s/ Menno van Lacum                                          
Name: Menno van Lacum
Title: Vice President
 
 
By:  /s/ Milton Anderson                                          
Name: Milton Anderson
Title: President

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