UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Date of Report (Date of Earliest Event Reported):
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January 29, 2015
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Lionbridge Technologies, Inc.
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(Exact name of registrant as specified in its charter)
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Delaware
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000-26933
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04-3398462
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(State or other jurisdiction
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(Commission
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(I.R.S. Employer
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of incorporation)
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File Number)
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Identification No.)
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1050 Winter Street, Suite 2300, Waltham, Massachusetts
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02451
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code:
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781-434-6000
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Not Applicable
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Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any
of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
On January 29, 2015, Lionbridge and its affiliates who are listed as Credit Parties in the revolving credit agreement dated as of December 21, 2006, as amended to date, among such parties and HSBC BANK USA, NATIONAL ASSOCIATION(the "Amended and Restated Credit Agreement"), entered into additional pledge agreements with certain of Lionbridge’s foreign subsidiaries. More specifically, shares of CLS Communication AG and Tuscany Holding AG held by Lionbridge International, a Credit Party, are subject to these pledge agreements. The description of these Pledge Agreements is qualified in its entirety by reference to the copies thereof filed as Exhibits 10.1 – 10-2, respectively, to this Form 8-K, which are incorporated by reference.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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Lionbridge Technologies, Inc.
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February 4, 2015
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By:
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Margaret A. Shukur
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Name: Margaret A. Shukur
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Title: Senior VP, General Counsel and Secretary
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Exhibit Index
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Exhibit No.
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Description
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10.1
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Share Pledge Agreement dated as of January 29, 2015 between Lionbridge International and HSBC Bank USA NA, regarding CLS Communication AG
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10.2
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Share Pledge Agreement dated as of January 29, 2015 between Lionbridge International and HSBC Bank USA NA, regarding Tuscany Holding AG
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SHARE PLEDGE AGREEMENT
dated as of January 29, 2015
between
Lionbridge International, 3 West Pier Business Campus, Dun Laoghaire, Co. Dublin, Ireland
(the Pledgor)
and
HSBC Bank USA, National Association, Corporate Trust & Loan Agency, 452 Fifth Avenue, New York, NY
10018, USA
acting as administrative agent in its own name and in the name of and for the account of the
Pledgees (as defined below) as their direct representative (direkter Stellvertreter)
(the Agent)
and
the Pledgees
represented for all purposes hereof by the Agent acting as their direct representative (direkter
Stellvertreter)
(together, the Pledgees)
regarding the pledge of the shares in CLS Corporate Language Services Holding AG, Switzerland, held
at any time by the Pledgor
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TABLE OF CONTENTS
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PREAMBLE
(A) |
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Pursuant to a certain credit agreement, dated as of December 21, 2006, as amended and
restated by a certain amended and restated credit agreement, dated as of October 30, 2013, as
amended and restated by a certain second amended and restated credit agreement dated as of
January 2, 2015 by and among, inter alios, the Agent, as Lender, Administrative Agent, Sole
Lead Arranger and Sole Book Runner, Lionbridge Technologies, Inc., Lionbridge International
Finance Limited and the Pledgor, as Borrowers, the Lenders have agreed to make available to
the Borrowers Loans in the total aggregate amount of up to USD 135,000,000 (all as defined
therein) (as amended from time to time, the Credit Agreement). |
(B) |
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The Pledgor has agreed to grant a pledge over all its shares in CLS Corporate Language
Services Holding AG, a company incorporated under the laws of Switzerland, registered with the
register of commerce of the Canton of Zurich under number CHE-110.102.565, having its
registered office at Sägereistrasse 33, c/o CLS Communication AG, 8152 Opfikon-Glattbrugg,
Switzerland (the Company), in favor of the Pledgees (as defined below), in order to provide
security in accordance with the Credit Agreement. As of the day of this Agreement, Pledgors
shares in the Company represent approximatively 30.7% of the total shareholding in the
Company. |
(C) |
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The Agent has been duly appointed by each of the Pledgees under the Credit Agreement to act
as Agent in the name of and for the account of the Pledgees with regard to the execution,
delivery and performance of this share pledge agreement (the Agreement) and shall exercise
the rights of the Pledgees arising hereunder as their direct representative (direkter
Stellvertreter). |
Unless the context otherwise requires, words or expressions defined in the Credit Agreement
shall have the same meanings in this Agreement.
In addition, in this Agreement:
"Agent has the meaning given to it on the first page of this Agreement.
"Agreement has the meaning given to it in Preamble (C).
"Annex means any annex to this Agreement.
"BEG means the Swiss Federal Act on Book Entry Securities as amended from time to time.
"Closing Date means the date of this Agreement.
"CO means the Swiss Code of Obligations as amended from time to time.
"Company has the meaning given to it in Preamble (B).
"Credit Agreement has the meaning given to it in Preamble (A).
"Credit Documents has the meaning given to it in the Credit Agreement.
"DEBA means the Swiss Debt Enforcement and Bankruptcy Act as amended from time to time.
"Dividends means all kind of dividend payments, whether in cash or in kind, in the form of
additional Shares or other participation rights, or in any other form paid to the Pledgor.
"Event of Default has the meaning given to it in the Credit Agreement.
"Lien has the meaning given to it in the Credit Agreement.
"Participation Rights means any kind of participation and profit share rights, such as
participation certificates (Partizipationsscheine) and profit sharing certificates
(Genussscheine) within the meaning of articles 656a et seq. and article 657 CO.
"Party means any party to this Agreement.
"Pledge has the meaning given to it in Section 2.1.
"Pledgees means the Lenders (as defined in the Credit Agreement).
"Pledgor has the meaning given to it on the first page of this Agreement.
"Preamble means the preamble to this Agreement.
"Related Rights means all moneys payable and any and all other accessory or other rights,
restitution claims, benefits and proceeds in respect of, or derived from, the Shares,
whether present or future and whether by way of capital reduction, redemption,
substitution, conversion or otherwise, including interests, Subscription Rights, Dividends,
liquidation proceeds upon liquidation of the Company and Voting Rights.
"Secured Obligations means the Credit Party Obligations of the Borrowers (as defined in
the Credit Agreement), including costs, fees and expenses, including court or reasonable
out-of-court costs and reasonable attorneys fees and expenses arising in connection with
the protection, preservation, or realization of the security granted under this Agreement,
irrespective of any intermediate discharge of any but not all of the claims and
obligations.
"Section means any section of this Agreement.
"Shares means the shares (Aktien) and the Participation Rights, together with all Related
Rights, in the Company held at any time by the Pledgor as well as any shares and
Participation Rights issued subsequent to the Closing Date, together with all Related
Rights to be held at any time by the Pledgor.
"Subscription Rights means the preemptive right (Bezugsrecht) and the advance subscription
right (Vorwegzeichnungsrecht) of a shareholder in relation to the Shares.
"Voting Rights means the voting rights and any other non-monetary participation rights in
relation to the Shares.
The Pledgor hereby agrees to pledge and hereby unconditionally pledges to each of the
Pledgees (for this purpose being represented by the Agent) individually the Shares (the
Pledge).
The Pledge shall serve as a first ranking security interest over the Shares to each of the
Pledgees for the payment and discharge of all Secured Obligations.
This Agreement shall create a continuing security for each of the Pledgees and no change or
amendment whatsoever in any of the Credit Documents or any document or agreement relating
thereto shall affect the validity of the Pledge or the obligations which are imposed on the
Pledgor pursuant to it.
On the Closing Date, the Pledgor shall deliver to the Agent the following documents:
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an up-to-date certified excerpt from the register of commerce
(Handelsregisterauszug) relating to the Company; |
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an up-to-date copy of the articles of association (Statuten) of the Company
certified by the register of commerce evidencing that they are free of any share
transfer restrictions; |
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a copy of the board resolutions of the Pledgor approving, inter alia, the
entering into this Agreement and the consummation of the transactions contemplated
thereby or in connection therewith; |
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d) |
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a copy of the board resolutions of the Company (i) acknowledging the Pledge,
(ii) approving the Pledge and the entry of the Pledgees as pledgees of the Shares into
the Companys share register (Aktienbuch), and (iii) approving in advance the possible
transfer of the Shares to any third party acquirer for the purpose of realization
contemplated in Section 7 and the entry of any future owner of the Shares as
shareholder with voting rights in the Companys share register; |
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a copy of the Companys share register evidencing that the Pledgor is entered
as shareholder of the Shares and the Pledgees are entered as pledgees of the Shares,
signed by a duly authorized member of the Companys board of directors; and |
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the original share certificate representing the Shares as specified in
Annex 1, duly endorsed in blank. |
Upon the accrual, offer or issue and after receipt by it of any Shares to which the Pledgor
is or will be entitled, the Pledgor shall promptly deliver all original share certificates
and other documents representing or evidencing such Shares, in the case of registered share
certificates duly assigned in blank by the Pledgor, to the Agent. In addition, the Pledgor
shall procure the prompt delivery to the Agent of the documents a) and b) above as well as
d) and e) above with regard to such Shares.
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REPRESENTATIONS AND WARRANTIES |
The Pledgor hereby represents and warrants to each of the Pledgees that on the Closing Date
and the date of each Extension of Credit:
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a) |
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it is the sole legal and beneficial owner of the Shares free and clear of any
Lien (other than the Pledge); |
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it has not assigned, transferred or otherwise disposed of the benefit of any
of its rights, title and interest in the Shares other than in accordance with this
Agreement; |
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it is neither insolvent nor over-indebted and no insolvency proceedings or,
to its knowledge, steps have occurred in respect of the Pledgor; |
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this Agreement (i) constitutes legal and valid obligations binding on the
Pledgor, (ii) creates an effective and perfected first ranking security interest over
the Shares, and (iii) is enforceable against the Pledgor in accordance with its terms; |
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the execution of, and the performance of its obligations under, this
Agreement by the Pledgor have been duly authorized by all necessary corporate actions
on behalf of the Pledgor and is not in breach of the corporate powers of the Pledgor; |
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the execution of, and the performance of its obligations under, this
Agreement by the Pledgor does not contravene or violate any Swiss or Irish law; |
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there are no agreements or arrangements affecting the Pledge in any way which
would or may encumber or otherwise prejudice the rights of the Agent, the other
Pledgees or the Pledge; |
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the Shares as specified in Annex 1 are duly and validly issued by the Company
fully paid-in and non-assessable and constitute the Shares in the Company; |
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except the Shares as specified in Annex 1, the shares in the Company held by
Tuscany Holding AG and the shares in the Company held by the Company itself, the
Company has neither issued any securities, including participation certificates
(Partizipationsscheine) and profit sharing certificates (Genussscheine); and |
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no book-entry securities (Bucheffekten) pursuant to the BEG exist with
respect to the Shares. |
As long as no Event of Default has occurred, the Pledgor shall be entitled to exercise the
Subscription Rights. All additional rights following the exercise of the Subscription
Rights shall be pledged pursuant to Section 2, and additional documents shall be delivered
pursuant to Section 3.
If the Pledgor does not intend to exercise any Subscription Rights, the Pledgor herewith
agrees to assign and herewith assigns such Subscription Rights free of charge to the Agent,
and the Agent shall be entitled, but not obliged, to exercise such Subscription Rights. For
that purpose, the Pledgor shall timely co-operate with the Agent in order to permit the
exercise of the Subscription Rights.
The Pledgor shall notify the Agent promptly of any grant of Subscription Rights and
undertakes to notify the Agent of any intention not to exercise any Subscription Rights not
less than fifteen calendar days prior to the expiration of such Subscription Rights.
Upon the occurrence and during the continuance of an Event of Default, the Agent shall be
entitled, but not obliged, to exercise the Subscription Rights. In case the Agent decides
to exercise the Subscription Rights, the Pledgor shall timely co-operate with the Agent in
order to permit the exercise of the Subscription Rights.
As long as no Event of Default has occurred, the Pledgor shall be entitled to receive and
retain all Dividends.
Upon the occurrence and during the continuance of an Event of Default, the Pledgees shall
be entitled to receive and retain all Dividends in relation to the Shares, including
Dividends that were approved and became due but have not been paid out prior to the
occurrence of the Event of Default. The Pledgor shall co-operate in order to permit the
distribution of the Dividends to the Agent acting in the name of and for the account of the
Pledgees.
As long as no Event of Default has occurred, all Voting Rights remain with the Pledgor. The
Pledgor shall exercise its Voting Rights in a manner consistent with this Agreement and the
Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default, the Pledgor shall no
longer exercise its Voting Rights without the prior written consent of the Agent, acting in
the name of and for the account of the Pledgees, and the Agent, acting in the name of and
for the account of the Pledgees, shall have the right to exercise the Voting Rights, at its
discretion, in the name of the Pledgor. For that purpose, the Pledgor herewith grants to
the Agent a power of attorney to exercise the Voting Rights and shall timely (i) execute
any and all proxies in favor of the Agent, acting in the name of and for the account of the
Pledgees, and (ii) do all acts and things and permit all acts and things to be done which
are necessary for the Agent, acting in the name of and for the account of the Pledgees, to
exercise the Voting Rights.
The Pledgor shall promptly send copies to the Agent, acting in the name of and for the
account of the Pledgees, of all notices and resolutions sent to the Pledgor in connection
with the Shares.
For as long as the Pledge remains in effect, the Pledgor hereby undertakes, as the case may
be, at its own costs:
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not to dispose of the Shares except in accordance with the Credit Agreement; |
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not permit to be done any other act or thing which would reasonably be
expected to jeopardize or otherwise prejudice in any material respects the rights of
the Agent and the other Pledgees hereunder; |
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c) |
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to promptly inform the Agent of all circumstances concerning the Shares which
may adversely affect the validity or enforceability of the Pledge; |
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not to create or agree to create or permit to subsist any Lien over all or
part of the Shares, other than the Pledge, nor to sell, transfer or otherwise dispose
of the Shares or any interest therein except in accordance with the Credit Agreement; |
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not to revoke or amend the resolutions of the Pledgor referred to in Section
3.c) and the resolutions of the Company referred to in Section 3.d); |
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not to vote in favour of any resolution whereby the Shares would be modified
or altered except in accordance with the Credit Agreement or the transferability of
the Shares would be restricted in any way; |
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to promptly inform the Agent (i) if a third party claims or pretends to own
any of the Shares, and (ii) of all circumstances concerning the Company which may
reasonably be expected to materially and adversely affect the validity or
enforceability of the Pledge; and |
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to take whatever action the Agent may reasonably require to obtain all
consents, take all actions and execute all documents (including any additional
security agreements or, in case BEG would be applicable to the Shares, control
agreement within the meaning of articles 25 et seq. BEG) as may be necessary to (i)
create and perfect the first ranking security interest created or intended to be
created by this Agreement, and/or (ii) facilitate the realization of the Pledge, in
particular, to properly effect any transfer of the Shares to an acquirer, free and
clear of any Lien. |
Upon the occurrence and during the continuance of an Event of Default, the Agent, acting in
the name of and for the account of the Pledgees, has the right, but not the obligation, at
its full discretion and without notice or demand, to realize the Pledge by either:
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private realization (private Verwertung, including self-sale
(Selbsteintritt)), irrespective of whether or not the Shares are traded on a
representative market (repräsentativer Markt); or |
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any applicable official enforcement proceedings, including, as the case may
be, Swiss enforcement proceedings pursuant to the DEBA under the exclusion of article
41 para. 1bis DEBA (the Pledgees may, at their own discretion, institute or
pursue the ordinary enforcement proceedings for the recovery of debt without having
first to realize the Pledge or institute proceedings for the realization of the Pledge
(waiver of the beneficium excussionis realis)) and the Parties agree in advance that a
sale according to article 130 DEBA (Freihandverkauf) shall be permitted. |
Upon the occurrence and during the continuance of an Event of Default, the Pledgor shall,
at its own cost, upon demand from the Agent, acting in the name of and for the account of
the Pledgees, execute all documents and do all other things that the Agent may request for
the realization of the Pledge.
No failure or delay on the part of the Agent and/or each of the other Pledgees to realize
the Pledge or any exercise of any other right under this Agreement shall operate as a
waiver thereof, nor shall any single or partial realization of the Pledge or exercise of a
right under this Agreement preclude any further or other realization of the Pledge or
exercise of that or any other such right.
The Agent shall not be liable towards the Pledgor for losses arising out of the realization
of the Pledge, except in case of wilful misconduct or gross negligence.
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APPLICATION OF PROCEEDS |
Any proceeds received under this Agreement by the Agent or by any of the Pledgees shall be
applied towards payment and discharge of the Secured Obligations in accordance with the
Credit Agreement.
Any surplus remaining upon full and indefeasible payment and discharge in full of the
Secured Obligations in accordance with Section 11 shall be returned to the Pledgor.
The Agent has been duly appointed by each of the Pledgees under the Credit Agreement to act
as Agent in the name of and for the account of the Pledgees. The Agent is authorized to
exercise the rights, powers, authorities and discretions specifically given to the Agent
under or in connection with this Agreement together with any other incidental rights,
powers, authorities and discretions as direct representative (direkter Stellvertreter) of
the Pledgees. The Pledgor acknowledges such rights, powers, authorities and discretions.
The Agent performs this Agreement and exercises the rights of the Pledgees arising
hereunder as the direct representative (direkter Stellvertreter) of each of the Pledgees.
Any action with respect to this Agreement taken by the Agent shall be construed as binding
upon each of the Pledgees.
The Pledgor appoints and authorizes the Agent, upon the occurrence and during the
continuance of an Event of Default, to be its attorney and in its name and on its behalf to
execute, deliver and perfect all documents (including to transfer Shares to an acquirer)
and to do all other things that the Agent may consider to be necessary for carrying out any
obligation imposed on the Pledgor under this Agreement or exercising any of the rights
conferred on the Agent or any of the other Pledgees by this Agreement or by law, in
particular in connection with a private realization (private Verwertung, including a
self-sale (Selbsteintritt)).
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ASSIGNMENT AND TRANSFER OF RIGHTS AND OBLIGATIONS |
The Pledgor may not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the Agent.
The Agent shall be permitted to transfer or delegate any rights or obligations, and to
assign any claims under this Agreement subject to the terms and conditions contained in the
Credit Agreement, and the Pledgor hereby explicitly consents to such assignment and
transfer.
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RELEASE AND TERMINATION |
11.1 |
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Release of Shares from Pledge |
The Shares or, in case of realization of some but not all of the Shares, the remainder
thereof, shall be automatically released from the Pledge if and when all Secured
Obligations have been fully and indefeasibly paid and discharged in full in accordance with
the terms of the Credit Agreement and no further Secured Obligations are capable of
arising.
Subject to Section 11.2, if all Secured Obligations have been fully and indefeasibly paid
and discharged in full and none of the Pledgees are under any further actual or contingent
liability to provide funds to any Person under any Credit Document, this Agreement shall
terminate and the Agent undertakes to execute and do all such reasonable acts as may be
necessary to release the Shares from the Pledge. The Agent agrees to reassign and hereby
reassigns all Subscription Rights assigned pursuant to Section 5.1, if any, with effect at
such time when all Secured Obligations have been fully and indefeasibly paid and discharged
in full and none of the Pledgees are under any further actual or contingent liability to
provide funds to any Person under any Credit Document.
The Pledgees will not, and shall not be deemed to have made, any representation or
warranty, whether express or implied, with respect to any assets released from the Pledge,
except that at the date of the release of the Shares from the Pledge such Shares are free
and clear, on such date, of any Lien arising from the acts of any of the Pledgees.
11.2 |
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Avoidance or Reduction of Payments |
If the Agent considers in good faith that any amount received in payment or purported
payment of the Secured Obligations is capable of being avoided or reduced by virtue of any
insolvency, bankruptcy, liquidation or other similar laws, the Pledgors liability under
this Agreement and the security constituted by this Agreement shall continue and such
amount shall not be considered to have been fully and indefeasibly paid and discharged in
full.
All notices or other communications to be given under or in connection with this Agreement
shall be made in writing and, unless otherwise instructed by a Party, shall be delivered by
hand, by registered mail (return receipt requested), by an internationally recognized
courier or by telecopier to the following addresses:
a) If to Pledgor to:
Lionbridge International
3 West Pier Business Campus
Dun Laoghaire, Co. Dublin, Ireland
Attention: Marc Litz, Director
Telecopier: +1-781-434-6034
Telephone: 353-1-202-1200
With a copy to:
Attention: General Counsel
Telecopier: +1-781-434-6057
Telephone: +1-781-434-6000
b) If to the Agent or the Pledgees to:
HSBC Bank USA, National Association
Corporate Trust & Loan Agency
452 Fifth Avenue
New York, NY 10018, USA
Telecopier: +1-212-525-1300
Telephone: +1-212-525-1362
With a copy to:
Goulston & Storrs PC
400 Atlantic Avenue
Boston, MA 02110-3333, USA
Attention: Philip A. Herman, Esq.
Telecopier: +1-617-574-7592
Telephone: +1-617-482-1776
Either Party may notify the other Party of a substitute address or telecopier number in
accordance with the above by giving not less than five calendar days written notice.
Any notice to be given hereunder shall be given prior to the expiry of a term or deadline
set forth in this Agreement or by applicable law, or the notice shall be deemed null and
void. All notices or other communications shall be effective upon receipt by the Party to
whom it is addressed irrespective of whether received prior to or after the expiry of such
term or deadline (provided that the notice was timely and duly given in accordance with
this Section 12.1).
The Pledgor shall bear all costs and expenses (including reasonable attorneys fees and
expenses) incurred in connection with the preparation, execution, amendments and
enforcement of this Agreement and with the release of the Shares from the Pledge.
For the purpose of or pending the discharge of any of the Secured Obligations, the Agent
may convert any money received, recovered or realized from one currency to another in
accordance with the terms and conditions of the Credit Agreement.
This Agreement, including Annex 1 and any other documents referred to herein, constitutes
the entire agreement and understanding among the Parties with respect to the subject matter
hereof, and shall supersede all prior oral and written agreements or understandings of the
Parties relating hereto. All references to this Agreement shall be deemed to include Annex
1.
12.5 |
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Conflict of Provisions |
If any inconsistency exists between any provision of this Agreement and the provisions of
any other Credit Document with respect to the subject matter hereof, the provisions of this
Agreement shall prevail.
This Agreement may only be amended or any provision thereof waived by an instrument in
writing signed by the Parties.
Should any part or provision of this Agreement be held to be invalid or unenforceable by
any competent arbitral tribunal, court, governmental or administrative authority having
jurisdiction, the other provisions of this Agreement shall nonetheless remain valid. In
this case, the Parties shall endeavor to negotiate a substitute provision that best
reflects the economic intentions of the Parties without being unenforceable, and shall
execute all agreements and documents required in this connection.
This Agreement may be executed in any number of counterparts and this has the same effect
as if the signatures on the counterparts were on a single copy of this Agreement.
13. |
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GOVERNING LAW AND JURISDICTION |
This Agreement (including all rights in rem aspects) shall be governed by and construed in
accordance with the substantive laws of Switzerland.
All disputes arising out of or in connection with this Agreement, including disputes on its
conclusion, binding effect, amendment and termination, shall be resolved exclusively by the
ordinary courts of the Canton of Zurich (ordentliche Gerichte des Kantons Zürich),
Switzerland, venue being Zurich 1.
The Agent and each of the other Pledgees in addition have the right to institute legal
proceedings against the Pledgor at any other competent court, in which case Swiss law shall
nevertheless be applicable as provided for in Section 13.1.
[remainder of page intentionally left blank]
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Annex 1
Details of Shares as of the Closing Date
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Share Issuer |
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Type of Share |
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Number of |
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Number of Shares |
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Par value of each |
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Certificate |
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Share |
CLS Corporate
Language Services
Holding AG
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Registered Shares
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78
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15,923
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CHF 50.00
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[signature page follows]
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Signatures
Place : Waltham, MA
Lionbridge International
(Pledgor)
By: /s/ Marc E. Litz, Director
Place: Boston, MA
HSBC Bank USA, National Association
(acting as administrative agent in its own name and in the name of and for the account of the
Pledgees as their direct representative (direkter Stellvertreter))
By: Manuel Burgueno, SVP
Place: Boston, MA
The Pledgees
represented for all purposes hereof by the Agent acting as their direct representative (direkter
Stellvertreter)
By: Manuel Burgueno, SVP
5
SHARE PLEDGE AGREEMENT
dated as of January 29, 2015
between
Lionbridge International, 3 West Pier Business Campus, Dun Laoghaire, Co. Dublin, Ireland
(the Pledgor)
and
HSBC Bank USA, National Association, Corporate Trust & Loan Agency, 452 Fifth Avenue, New York, NY
10018, USA
acting as administrative agent in its own name and in the name of and for the account of the
Pledgees (as defined below) as their direct representative (direkter Stellvertreter)
(the Agent)
and
the Pledgees
represented for all purposes hereof by the Agent acting as their direct representative (direkter
Stellvertreter)
(together, the Pledgees)
regarding the pledge of all shares in Tuscany Holding AG, Switzerland
1
TABLE OF CONTENTS
2
PREAMBLE
(A) |
|
Pursuant to a certain credit agreement, dated as of December 21, 2006, as amended and
restated by a certain amended and restated credit agreement, dated as of October 30, 2013, as
amended and restated by a certain second amended and restated credit agreement dated as of
January 2, 2015 by and among, inter alios, the Agent, as Lender, Administrative Agent, Sole
Lead Arranger and Sole Book Runner, Lionbridge Technologies, Inc., Lionbridge International
Finance Limited and the Pledgor, as Borrowers, the Lenders have agreed to make available to
the Borrowers Loans in the total aggregate amount of up to USD 135,000,000 (all as defined
therein) (as amended from time to time, the Credit Agreement). |
(B) |
|
The Pledgor has agreed to grant a pledge over all shares in Tuscany Holding AG, a company
incorporated under the laws of Switzerland, registered with the register of commerce of the
Canton of Zug under number CHE-114.907.651, having its registered office at Birkenstrasse 49,
c/o WAGNER & PARTNER, ROTKREUZ, 6343 Rotkreuz, Switzerland (the Company), in favor of the
Pledgees (as defined below), in order to provide security in accordance with the Credit
Agreement. |
(C) |
|
The Agent has been duly appointed by each of the Pledgees under the Credit Agreement to act
as Agent in the name of and for the account of the Pledgees with regard to the execution,
delivery and performance of this share pledge agreement (the Agreement) and shall exercise
the rights of the Pledgees arising hereunder as their direct representative (direkter
Stellvertreter). |
Unless the context otherwise requires, words or expressions defined in the Credit Agreement
shall have the same meanings in this Agreement.
In addition, in this Agreement:
"Agent has the meaning given to it on the first page of this Agreement.
"Agreement has the meaning given to it in Preamble (C).
"Annex means any annex to this Agreement.
"BEG means the Swiss Federal Act on Book Entry Securities as amended from time to time.
"Closing Date means the date of this Agreement.
"CO means the Swiss Code of Obligations as amended from time to time.
"Company has the meaning given to it in Preamble (B).
"Credit Agreement has the meaning given to it in Preamble (A).
"Credit Documents has the meaning given to it in the Credit Agreement.
"DEBA means the Swiss Debt Enforcement and Bankruptcy Act as amended from time to time.
"Dividends means all kind of dividend payments, whether in cash or in kind, in the form of
additional Shares or other participation rights, or in any other form.
"Event of Default has the meaning given to it in the Credit Agreement.
"Lien has the meaning given to it in the Credit Agreement.
"Participation Rights means any kind of participation and profit share rights, such as
participation certificates (Partizipationsscheine) and profit sharing certificates
(Genussscheine) within the meaning of articles 656a et seq. and article 657 CO.
"Party means any party to this Agreement.
"Pledge has the meaning given to it in Section 2.1.
"Pledgees means the Lenders (as defined in the Credit Agreement).
"Pledgor has the meaning given to it on the first page of this Agreement.
"Preamble means the preamble to this Agreement.
"Related Rights means all moneys payable and any and all other accessory or other rights,
restitution claims, benefits and proceeds in respect of, or derived from, the Shares,
whether present or future and whether by way of capital reduction, redemption,
substitution, conversion or otherwise, including interests, Subscription Rights, Dividends,
liquidation proceeds upon liquidation of the Company and Voting Rights.
"Secured Obligations means the Credit Party Obligations of the Borrowers (as defined in
the Credit Agreement), including costs, fees and expenses, including court or reasonable
out-of-court costs and reasonable attorneys fees and expenses arising in connection with
the protection, preservation, or realization of the security granted under this Agreement,
irrespective of any intermediate discharge of any but not all of the claims and
obligations.
"Section means any section of this Agreement.
"Shares means the shares (Aktien) and the Participation Rights, together with all Related
Rights, in the Company held by the Pledgor as well as any shares and Participation Rights
issued subsequent to the Closing Date, together with all Related Rights.
"Subscription Rights means the preemptive right (Bezugsrecht) and the advance subscription
right (Vorwegzeichnungsrecht) of a shareholder in relation to the Shares.
"Voting Rights means the voting rights and any other non-monetary participation rights in
relation to the Shares.
The Pledgor hereby agrees to pledge and hereby unconditionally pledges to each of the
Pledgees (for this purpose being represented by the Agent) individually all Shares (the
Pledge).
The Pledge shall serve as a first ranking security interest over all Shares to each of the
Pledgees for the payment and discharge of all Secured Obligations.
This Agreement shall create a continuing security for each of the Pledgees and no change or
amendment whatsoever in any of the Credit Documents or any document or agreement relating
thereto shall affect the validity of the Pledge or the obligations which are imposed on the
Pledgor pursuant to it.
On the Closing Date, the Pledgor shall deliver to the Agent the following documents:
|
a) |
|
an up-to-date certified excerpt from the register of commerce
(Handelsregisterauszug) relating to the Company; |
|
b) |
|
an up-to-date copy of the articles of association (Statuten) of the Company
certified by the register of commerce evidencing that they are free of any share
transfer restrictions; |
|
c) |
|
a copy of the board resolutions of the Pledgor approving, inter alia, the
entering into this Agreement and the consummation of the transactions contemplated
thereby or in connection therewith; |
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d) |
|
a copy of the board resolutions of the Company (i) acknowledging the Pledge,
(ii) approving the Pledge and the entry of the Pledgees as pledgees of the Shares into
the Companys share register (Aktienbuch), and (iii) approving in advance the possible
transfer of the Shares to any third party acquirer for the purpose of realization
contemplated in Section 7 and the entry of any future owner of the Shares as
shareholder with voting rights in the Companys share register; |
|
e) |
|
a copy of the Companys share register evidencing that the Pledgor is entered
as shareholder of the Shares and the Pledgees are entered as pledgees of the Shares,
signed by a duly authorized member of the Companys board of directors; and |
|
f) |
|
the original share certificate representing the Shares as specified in
Annex 1, duly endorsed in blank. |
Upon the accrual, offer or issue and after receipt by it of any Shares to which the Pledgor
is or will be entitled, the Pledgor shall promptly deliver all original share certificates
and other documents representing or evidencing such Shares, in the case of registered share
certificates duly assigned in blank by the Pledgor, to the Agent. In addition, the Pledgor
shall procure the prompt delivery to the Agent of the documents a) and b) above as well as
d) and e) above with regard to such Shares.
4. |
|
REPRESENTATIONS AND WARRANTIES |
The Pledgor hereby represents and warrants to each of the Pledgees that on the Closing Date
and the date of each Extension of Credit:
|
a) |
|
it is the sole legal and beneficial owner of the Shares free and clear of any
Lien (other than the Pledge); |
|
b) |
|
it has not assigned, transferred or otherwise disposed of the benefit of any
of its rights, title and interest in the Shares other than in accordance with this
Agreement; |
|
c) |
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it is neither insolvent nor over-indebted and no insolvency proceedings or,
to its knowledge, steps have occurred in respect of the Pledgor; |
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d) |
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this Agreement (i) constitutes legal and valid obligations binding on the
Pledgor, (ii) creates an effective and perfected first ranking security interest over
the Shares, and (iii) is enforceable against the Pledgor in accordance with its terms; |
|
e) |
|
the execution of, and the performance of its obligations under, this
Agreement by the Pledgor have been duly authorized by all necessary corporate actions
on behalf of the Pledgor and is not in breach of the corporate powers of the Pledgor; |
|
f) |
|
the execution of, and the performance of its obligations under, this
Agreement by the Pledgor does not contravene or violate any Swiss or Irish law; |
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g) |
|
there are no agreements or arrangements affecting the Pledge in any way which
would or may encumber or otherwise prejudice the rights of the Agent, the other
Pledgees or the Pledge; |
|
h) |
|
the Shares as specified in Annex 1 are duly and validly issued by the Company
fully paid-in and non-assessable and constitute all Shares in the Company; |
|
i) |
|
except the Shares as specified in Annex 1, the Company has neither issued any
securities, including participation certificates (Partizipationsscheine) and profit
sharing certificates (Genussscheine); and |
|
j) |
|
no book-entry securities (Bucheffekten) pursuant to the BEG exist with
respect to the Shares. |
As long as no Event of Default has occurred, the Pledgor shall be entitled to exercise the
Subscription Rights. All additional rights following the exercise of the Subscription
Rights shall be pledged pursuant to Section 2, and additional documents shall be delivered
pursuant to Section 3.
If the Pledgor does not intend to exercise any Subscription Rights, the Pledgor herewith
agrees to assign and herewith assigns such Subscription Rights free of charge to the Agent,
and the Agent shall be entitled, but not obliged, to exercise such Subscription Rights. For
that purpose, the Pledgor shall timely co-operate with the Agent in order to permit the
exercise of the Subscription Rights.
The Pledgor shall notify the Agent promptly of any grant of Subscription Rights and
undertakes to notify the Agent of any intention not to exercise any Subscription Rights not
less than fifteen calendar days prior to the expiration of such Subscription Rights.
Upon the occurrence and during the continuance of an Event of Default, the Agent shall be
entitled, but not obliged, to exercise the Subscription Rights. In case the Agent decides
to exercise the Subscription Rights, the Pledgor shall timely co-operate with the Agent in
order to permit the exercise of the Subscription Rights.
As long as no Event of Default has occurred, the Pledgor shall be entitled to receive and
retain all Dividends.
Upon the occurrence and during the continuance of an Event of Default, the Pledgees shall
be entitled to receive and retain all Dividends in relation to the Shares, including
Dividends that were approved and became due but have not been paid out prior to the
occurrence of the Event of Default. The Pledgor shall co-operate in order to permit the
distribution of the Dividends to the Agent acting in the name of and for the account of the
Pledgees.
As long as no Event of Default has occurred, all Voting Rights remain with the Pledgor. The
Pledgor shall exercise its Voting Rights in a manner consistent with this Agreement and the
Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default, the Pledgor shall no
longer exercise its Voting Rights without the prior written consent of the Agent, acting in
the name of and for the account of the Pledgees, and the Agent, acting in the name of and
for the account of the Pledgees, shall have the right to exercise the Voting Rights, at its
discretion, in the name of the Pledgor. For that purpose, the Pledgor herewith grants to
the Agent a power of attorney to exercise the Voting Rights and shall timely (i) execute
any and all proxies in favor of the Agent, acting in the name of and for the account of the
Pledgees, and (ii) do all acts and things and permit all acts and things to be done which
are necessary for the Agent, acting in the name of and for the account of the Pledgees, to
exercise the Voting Rights.
The Pledgor shall promptly send copies to the Agent, acting in the name of and for the
account of the Pledgees, of all notices and resolutions sent to the Pledgor in connection
with the Shares.
For as long as the Pledge remains in effect, the Pledgor hereby undertakes, as the case may
be, at its own costs:
|
a) |
|
not to dispose of the Shares except in accordance with the Credit Agreement; |
|
b) |
|
not permit to be done any other act or thing which would reasonably be
expected to jeopardize or otherwise prejudice in any material respects the rights of
the Agent and the other Pledgees hereunder; |
|
c) |
|
to promptly inform the Agent of all circumstances concerning the Shares which
may adversely affect the validity or enforceability of the Pledge; |
|
d) |
|
not to create or agree to create or permit to subsist any Lien over all or
part of the Shares, other than the Pledge, nor to sell, transfer or otherwise dispose
of the Shares or any interest therein except in accordance with the Credit Agreement; |
|
e) |
|
not to revoke or amend the resolutions of the Pledgor referred to in Section
3.c) and the resolutions of the Company referred to in Section 3.d); |
|
f) |
|
not to vote in favour of any resolution whereby the Shares would be modified
or altered except in accordance with the Credit Agreement or the transferability of
the Shares would be restricted in any way; |
|
g) |
|
to promptly inform the Agent (i) if a third party claims or pretends to own
any of the Shares, and (ii) of all circumstances concerning the Company which may
reasonably be expected to materially and adversely affect the validity or
enforceability of the Pledge; and |
|
h) |
|
to take whatever action the Agent may reasonably require to obtain all
consents, take all actions and execute all documents (including any additional
security agreements or, in case BEG would be applicable to the Shares, control
agreement within the meaning of articles 25 et seq. BEG) as may be necessary to (i)
create and perfect the first ranking security interest created or intended to be
created by this Agreement, and/or (ii) facilitate the realization of the Pledge, in
particular, to properly effect any transfer of the Shares to an acquirer, free and
clear of any Lien. |
Upon the occurrence and during the continuance of an Event of Default, the Agent, acting in
the name of and for the account of the Pledgees, has the right, but not the obligation, at
its full discretion and without notice or demand, to realize the Pledge by either:
|
a) |
|
private realization (private Verwertung, including self-sale
(Selbsteintritt)), irrespective of whether or not the Shares are traded on a
representative market (repräsentativer Markt); or |
|
b) |
|
any applicable official enforcement proceedings, including, as the case may
be, Swiss enforcement proceedings pursuant to the DEBA under the exclusion of article
41 para. 1bis DEBA (the Pledgees may, at their own discretion, institute or
pursue the ordinary enforcement proceedings for the recovery of debt without having
first to realize the Pledge or institute proceedings for the realization of the Pledge
(waiver of the beneficium excussionis realis)) and the Parties agree in advance that a
sale according to article 130 DEBA (Freihandverkauf) shall be permitted. |
Upon the occurrence and during the continuance of an Event of Default, the Pledgor shall,
at its own cost, upon demand from the Agent, acting in the name of and for the account of
the Pledgees, execute all documents and do all other things that the Agent may request for
the realization of the Pledge.
No failure or delay on the part of the Agent and/or each of the other Pledgees to realize
the Pledge or any exercise of any other right under this Agreement shall operate as a
waiver thereof, nor shall any single or partial realization of the Pledge or exercise of a
right under this Agreement preclude any further or other realization of the Pledge or
exercise of that or any other such right.
The Agent shall not be liable towards the Pledgor for losses arising out of the realization
of the Pledge, except in case of wilful misconduct or gross negligence.
8. |
|
APPLICATION OF PROCEEDS |
Any proceeds received under this Agreement by the Agent or by any of the Pledgees shall be
applied towards payment and discharge of the Secured Obligations in accordance with the
Credit Agreement.
Any surplus remaining upon full and indefeasible payment and discharge in full of the
Secured Obligations in accordance with Section 0 shall be returned to the Pledgor.
The Agent has been duly appointed by each of the Pledgees under the Credit Agreement to act
as Agent in the name of and for the account of the Pledgees. The Agent is authorized to
exercise the rights, powers, authorities and discretions specifically given to the Agent
under or in connection with this Agreement together with any other incidental rights,
powers, authorities and discretions as direct representative (direkter Stellvertreter) of
the Pledgees. The Pledgor acknowledges such rights, powers, authorities and discretions.
The Agent performs this Agreement and exercises the rights of the Pledgees arising
hereunder as the direct representative (direkter Stellvertreter) of each of the Pledgees.
Any action with respect to this Agreement taken by the Agent shall be construed as binding
upon each of the Pledgees.
The Pledgor appoints and authorizes the Agent, upon the occurrence and during the
continuance of an Event of Default, to be its attorney and in its name and on its behalf to
execute, deliver and perfect all documents (including to transfer Shares to an acquirer)
and to do all other things that the Agent may consider to be necessary for carrying out any
obligation imposed on the Pledgor under this Agreement or exercising any of the rights
conferred on the Agent or any of the other Pledgees by this Agreement or by law, in
particular in connection with a private realization (private Verwertung, including a
self-sale (Selbsteintritt)).
10. |
|
ASSIGNMENT AND TRANSFER OF RIGHTS AND OBLIGATIONS |
The Pledgor may not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the Agent.
The Agent shall be permitted to transfer or delegate any rights or obligations, and to
assign any claims under this Agreement subject to the terms and conditions contained in the
Credit Agreement, and the Pledgor hereby explicitly consents to such assignment and
transfer.
11. |
|
RELEASE AND TERMINATION |
11.1 |
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Release of Shares from Pledge |
The Shares or, in case of realization of some but not all of the Shares, the remainder
thereof, shall be automatically released from the Pledge if and when all Secured
Obligations have been fully and indefeasibly paid and discharged in full in accordance with
the terms of the Credit Agreement and no further Secured Obligations are capable of
arising.
Subject to Section 11.2, if all Secured Obligations have been fully and indefeasibly paid
and discharged in full and none of the Pledgees are under any further actual or contingent
liability to provide funds to any Person under any Credit Document, this Agreement shall
terminate and the Agent undertakes to execute and do all such reasonable acts as may be
necessary to release the Shares from the Pledge. The Agent agrees to reassign and hereby
reassigns all Subscription Rights assigned pursuant to Section 5.1, if any, with effect at
such time when all Secured Obligations have been fully and indefeasibly paid and discharged
in full and none of the Pledgees are under any further actual or contingent liability to
provide funds to any Person under any Credit Document.
The Pledgees will not, and shall not be deemed to have made, any representation or
warranty, whether express or implied, with respect to any assets released from the Pledge,
except that at the date of the release of the Shares from the Pledge such Shares are free
and clear, on such date, of any Lien arising from the acts of any of the Pledgees.
11.2 |
|
Avoidance or Reduction of Payments |
If the Agent considers in good faith that any amount received in payment or purported
payment of the Secured Obligations is capable of being avoided or reduced by virtue of any
insolvency, bankruptcy, liquidation or other similar laws, the Pledgors liability under
this Agreement and the security constituted by this Agreement shall continue and such
amount shall not be considered to have been fully and indefeasibly paid and discharged in
full.
All notices or other communications to be given under or in connection with this Agreement
shall be made in writing and, unless otherwise instructed by a Party, shall be delivered by
hand, by registered mail (return receipt requested), by an internationally recognized
courier or by telecopier to the following addresses:
a) If to Pledgor to:
Lionbridge International
3 West Pier Business Campus
Dun Laoghaire, Co. Dublin, Ireland
Attention: Marc Litz, Director
Telecopier: +1-781-434-6034
Telephone: 353-1-202-1200
With a copy to:
Attention: General Counsel
Telecopier: +1-781-434-6057
Telephone: +1-781-434-6000
b) If to the Agent or the Pledgees to:
HSBC Bank USA, National Association
Corporate Trust & Loan Agency
452 Fifth Avenue
New York, NY 10018, USA
Telecopier: +1-212-525-1300
Telephone: +1-212-525-1362
With a copy to:
Goulston & Storrs PC
400 Atlantic Avenue
Boston, MA 02110-3333, USA
Attention: Philip A. Herman, Esq.
Telecopier: +1-617-574-7592
Telephone: +1-617-482-1776
Either Party may notify the other Party of a substitute address or telecopier number in
accordance with the above by giving not less than five calendar days written notice.
Any notice to be given hereunder shall be given prior to the expiry of a term or deadline
set forth in this Agreement or by applicable law, or the notice shall be deemed null and
void. All notices or other communications shall be effective upon receipt by the Party to
whom it is addressed irrespective of whether received prior to or after the expiry of such
term or deadline (provided that the notice was timely and duly given in accordance with
this Section 12.1).
The Pledgor shall bear all costs and expenses (including reasonable attorneys fees and
expenses) incurred in connection with the preparation, execution, amendments and
enforcement of this Agreement and with the release of the Shares from the Pledge.
For the purpose of or pending the discharge of any of the Secured Obligations, the Agent
may convert any money received, recovered or realized from one currency to another in
accordance with the terms and conditions of the Credit Agreement.
This Agreement, including Annex 1 and any other documents referred to herein, constitutes
the entire agreement and understanding among the Parties with respect to the subject matter
hereof, and shall supersede all prior oral and written agreements or understandings of the
Parties relating hereto. All references to this Agreement shall be deemed to include Annex
1.
12.5 |
|
Conflict of Provisions |
If any inconsistency exists between any provision of this Agreement and the provisions of
any other Credit Document with respect to the subject matter hereof, the provisions of this
Agreement shall prevail.
This Agreement may only be amended or any provision thereof waived by an instrument in
writing signed by the Parties.
Should any part or provision of this Agreement be held to be invalid or unenforceable by
any competent arbitral tribunal, court, governmental or administrative authority having
jurisdiction, the other provisions of this Agreement shall nonetheless remain valid. In
this case, the Parties shall endeavor to negotiate a substitute provision that best
reflects the economic intentions of the Parties without being unenforceable, and shall
execute all agreements and documents required in this connection.
This Agreement may be executed in any number of counterparts and this has the same effect
as if the signatures on the counterparts were on a single copy of this Agreement.
13. |
|
GOVERNING LAW AND JURISDICTION |
This Agreement (including all rights in rem aspects) shall be governed by and construed in
accordance with the substantive laws of Switzerland.
All disputes arising out of or in connection with this Agreement, including disputes on its
conclusion, binding effect, amendment and termination, shall be resolved exclusively by the
ordinary courts of the Canton of Zurich (ordentliche Gerichte des Kantons Zürich),
Switzerland, venue being Zurich 1.
The Agent and each of the other Pledgees in addition have the right to institute legal
proceedings against the Pledgor at any other competent court, in which case Swiss law shall
nevertheless be applicable as provided for in Section 13.1.
[remainder of page intentionally left blank]
3
Annex 1
Details of Shares as of the Closing Date
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Share Issuer |
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Type of Share |
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Number of |
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Number of Shares |
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Par value of each |
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Certificate |
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Share |
Tuscany Holding AG
|
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Registered Shares
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1 |
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28200000
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CHF 1.00 |
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[signature page follows]
4
Signatures
Place : Waltham, MA
Lionbridge International
(Pledgor)
By: /s/ Marc E. Litz, Director
Place: Boston MA
HSBC Bank USA, National Association
(acting as administrative agent in its own name and in the name of and for the account of the
Pledgees as their direct representative (direkter Stellvertreter))
By: /s/ Manuel Burgueno, SVP
Place: Boston MA
The Pledgees
represented for all purposes hereof by the Agent acting as their direct representative (direkter
Stellvertreter)
By: /s/ Manuel Burgueno, SVP
5
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