EXHIBIT 99.2
STOCK OPTION AND TENDER AGREEMENT
STOCK OPTION AND TENDER AGREEMENT, dated as of December 18, 1995,
among AMERICAN BRANDS, INC., a Delaware corporation ("Parent"), and each other
party listed on the signature pages hereof (each, a "Stockholder"),
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Parent, HCAC, INC., a Delaware corporation wholly-owned by
Parent ("Purchaser"), and COBRA GOLF INCORPORATED, a Delaware corporation (the
"Company"), propose to enter into an Agreement and Plan of Merger, dated as of
the date hereof (as the same may be amended from time to time, the "Merger
Agreement"), which provides, upon the terms and subject to the conditions
thereof, for the acquisition by Purchaser of all the outstanding shares of
Common Stock, par value $0.001 per share, of the Company (the "Company Common
Stock") through (a) a tender offer (the "Offer") for all shares of Company
Common Stock for $36.00 per share net to the sellers thereof in cash without
interest thereon (the "Initial Offer Price", and as such price may be increased
from time to time pursuant to the terms of any amended Offer, the "Offer Price")
and (b) a second step merger pursuant to which Purchaser will merge with and
into the Company (the "Merger") and all outstanding shares of Company Common
Stock (other than the shares held by Parent or Purchaser or any other direct or
indirect subsidiary of Parent and shares of Company Common Stock held in the
treasury of the Company or owned by any subsidiary of the Company) will be
converted into the right to receive the Offer Price in cash; and
WHEREAS, as of the date hereof each Stockholder is the record and
beneficial owner of, or is the trustee of a trust that is the record holder of,
and whose beneficiaries are the beneficial owners of, the number of shares of
Company Common Stock set forth opposite such Stockholder's name on Exhibit A
hereto (all such shares (the "Existing Shares") and any shares hereafter
acquired by the Stockholders prior to the termination of this Agreement (the
"After-Acquired Shares") being referred to herein as the "Shares");
WHEREAS, as a condition to the willingness of Parent and Purchaser to
enter into the Merger Agreement, Parent has required that each Stockholder
agree, and, in order to induce Parent and Purchaser to enter into the Merger
Agreement to acquire the Company, each Stockholder has agreed, severally, but
not jointly, to (i) tender all of such Stockholder's Shares pursuant to the
Offer, (ii)
2
grant Parent the option to purchase such Stockholder's Shares and (iii) appoint
Parent as such Stockholder's proxy to vote its Shares;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter contained and contained in the Merger
Agreement, and intending to be legally bound hereby, the parties hereto hereby
agree as follows:
ARTICLE I
GRANT OF PLEDGE AND SECURITY INTEREST; TENDER
SECTION 1.01. Grant of Pledge and Security Interest. (a) For the
-------------------------------------
purpose of securing the due and prompt performance of all the obligations of
such Stockholders under this Agreement, subject to the provisions of Section
7.11 hereof each Stockholder hereby irrevocably grants to Parent a pledge and
security interest in such Stockholder's Shares, and (i) until delivery of the
Shares pursuant to the third sentence of this Section 1.01(a), all proceeds
thereof subject to the terms of this Agreement and dividends thereon and (ii)
thereafter, all dividends thereon. Notwithstanding the provisions of the
preceding sentence, subject to the provisions of Section 7.11 hereof unless and
until any
3
Stockholder defaults in the performance of the obligation to deliver such
Stockholder's Shares or to sell such Stockholder's Shares under this Agreement,
Parent shall not have the right to receive and/or retain any such proceeds
and/or dividends contemplated by the immediately preceding sentence. In order to
perfect such security interests, each Stockholder shall deliver to Parent any
and all stock certificates evidencing such Stockholder's (i) Existing Shares,
not later than 5:00 p.m. New York time on the fifth Business Day (as defined
below) following the date of this Agreement, and (ii) After-Acquired Shares, not
later than 5 p.m. New York time on the third Business Day following the
acquisition thereof. Parent shall have all the rights and remedies of a secured
party provided or permitted under the Uniform Commercial Code. For the purposes
of this Agreement, the term "Business Day" shall mean any day (other than a
Saturday or Sunday) on which commercial banks are open for business in the City
of New York.
(b) Upon termination of the Merger Agreement, Parent automatically
releases any and all liens on all Shares of each Stockholder granted hereunder
and shall promptly (and in any event not later than two Business Days following
such termination) (i)(A) send any and all
4
stock certificates in its possession evidencing a Stockholder's Shares to such
Stockholder by overnight courier to the address set forth below such
Stockholder's name on the signature page hereof (provided that if any such stock
certificates are not received by such Stockholder, Parent shall promptly put up
an indemnity bond required by the Company to issue new certificates to such
Stockholder, including, without limitation, any such bond required in accordance
with Section 8-405 of the Uniform Commercial Code of the applicable
jurisdiction) or (B) irrevocably direct the depositary for the Offer to properly
withdraw and deliver to each Stockholder the stock certificates evidencing such
Stockholder's Shares which were validly tendered pursuant to the Offer, if any,
and (ii) return any other documentation delivered to Parent by any such
Stockholder together with any dividends obtained or received by Parent in
respect of such Stockholder's Shares to such Stockholder by overnight courier to
the address set forth below such Stockholder's name on the signature page
hereof.
(c) Notwithstanding anything to the contrary in this Agreement,
Parent shall have no rights of ownership in any Stockholder's Shares unless and
until such Shares are sold pursuant to the Option or in the
5
Offer pursuant to the terms of this Agreement, but Parent shall otherwise be
permitted to exercise its rights hereunder.
SECTION 1.02. Tender of Shares. Each Stockholder shall validly
----------------
tender all such Stockholder's Shares pursuant to the Offer and agrees not to
withdraw any Shares so tendered without Parent's consent, provided, however,
that if the Offer Price is for any reason increased above the Initial Offer
Price, then each Stockholder hereby agrees that such Stockholder shall promptly
(and in any event not later than three Business Days after the first public
announcement of such increase) properly withdraw all such Shares, and provided
further that following any such withdrawal each Stockholder validly shall tender
all of such Stockholder's Shares pursuant to the Offer but only upon the written
direction of Parent. The obligation of the Stockholders under this Section 1.02
shall be deemed satisfied, with respect to all Shares delivered pursuant to
Section 1.01, by the appointment and grant pursuant to Section 5.03.
6
ARTICLE II
THE OPTIONS
SECTION 2.01. Grant of Options. Each Stockholder hereby grants to
----------------
Parent an irrevocable option (each, an "Option") to purchase such Stockholder's
Shares at a price per Share equal to (a) the Initial Offer Price or (b) in the
event that such Offer Price is increased and Purchaser has accepted for payment,
and paid for, any shares of Company Common Stock pursuant to the Offer, the
Initial Offer Price plus an amount equal to one-half of the excess of the final
Offer Price paid by Purchaser for any shares of Company Common Stock pursuant to
the Offer over such Initial Offer Price (in either event, the "Option Price").
SECTION 2.02. Exercise of Options. Provided that (a) to the extent
-------------------
necessary, any applicable waiting periods (and any extension thereof) under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules
and regulations promulgated thereunder (the "HSR Act") with respect to the
exercise of an Option shall have expired or been terminated, (b) Purchaser shall
have accepted shares of Company Common Stock for payment pursuant to the Offer
and (c) no preliminary or permanent injunction or other order, decree or ruling
7
issued by any court or governmental or regulatory authority, domestic or
foreign, of competent jurisdiction prohibiting the exercise of an Option or the
delivery of shares of Common Stock shall be in effect, Parent may exercise the
Options, in whole but not in part, at any time, or from time to time, until the
termination of this Agreement (at which time each Option granted hereunder shall
terminate). Parent hereby acknowledges and agrees that if any shares of Company
Common Stock are accepted for payment pursuant to the Offer, Parent will cause
all but not part of each Stockholder's Shares subject to this Agreement to be
acquired either pursuant to (i) the Offer or (ii) the exercise of the Options.
In the event that Parent exercises the Options and purchases all of the Shares
from the Stockholders, the closing of such purchase (the "Stock Option Closing")
shall occur within two Business Days after Parent shall have accepted any shares
of Company Common Stock for payment pursuant to the Offer.
SECTION 2.03. Payment for and Delivery of Certificates. At the Stock
----------------------------------------
Option Closing, (a) each Stockholder shall deliver to Parent a certificate or
certificates evidencing the number of such Stockholder's Shares, and each such
certificate shall be duly endorsed
8
in blank, or with appropriate stock powers, duly executed in blank, attached
thereto, in proper form for transfer, with the signature of such Stockholder
thereon guaranteed in a form acceptable to the Company's transfer agent, and
with all applicable taxes paid or provided for (provided, that in no event shall
a Stockholder be obligated to pay or provide for more taxes than if such
Stockholder's Shares were purchased in the Offer), together with such other
documents as may be necessary in Parent's judgment to effect the transfer
thereof to Parent (including, but not limited to, the consent of any spouse of
such Stockholder, if required for the transfer contemplated hereby) and (b)
Parent shall pay, by wire transfer in immediately available funds or by
certified or bank check payable in same day funds to such Stockholder, an amount
equal to the product of (i) the Option Price and (ii) the number of such
Stockholder's Shares for which certificates have been delivered to Parent
pursuant to this Agreement at the Stock Option Closing. The obligation of the
Stockholders under this Section 2.03 shall be deemed satisfied, with respect to
all Shares delivered pursuant to Section 1.01, by the appointment and grant
pursuant to Section 5.03.
9
SECTION 2.04. Adjustments Upon Changes in Capitalization. In the
------------------------------------------
event of any change in the number of issued and outstanding shares of Company
Common Stock by reason of any stock dividend, subdivision, merger,
recapitalization, combination, conversion or exchange of shares, or any other
change in the corporate or capital structure of the Company (including, without
limitation, the declaration or payment of any extraordinary dividend of cash or
securities) which would have the effect of diluting or otherwise adversely
affecting Parent's rights and privileges under this Agreement, the number and
kind of the Shares and the consideration payable in respect of the Shares shall
be appropriately and equitably adjusted to restore to Parent its rights and
privileges under this Agreement. Without limiting the scope of the foregoing,
in any such event, at the option of Parent, each Option shall represent the
right to purchase, in addition to the number and kind of Shares which Parent
would be entitled to purchase pursuant to the immediately preceding sentence,
whatever securities, cash or other property the Shares subject to the Option
shall have been converted into or otherwise exchanged for, together with any
securities, cash or other property which shall have been distributed with
respect to such Shares.
10
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
Each Stockholder hereby severally, but not jointly, represents and
warrants to Parent that:
SECTION 3.01. Organization. Such Stockholder (if it is a
------------
corporation, partnership or other legal entity) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization with all requisite power and authority (corporate
or otherwise) to execute, deliver and perform its obligations under this
Agreement.
SECTION 3.02. Authority; Enforceability. The execution and delivery
-------------------------
by such Stockholder of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action (corporate
or otherwise) on the part of such Stockholder. This Agreement has been duly
executed and delivered by or on behalf of such Stockholder, and if such
Stockholder is married and such Stockholder's Shares constitute community
property, by or on behalf of such Stockholder's spouse, and, assuming due
execution and delivery by Parent hereof, constitutes the legal, valid and
binding obligation of such Stockholder and such spouse enforceable against each
of them in accordance
11
with its terms, subject to the qualification, however, that enforcement of the
rights and remedies created hereby may be limited by bankruptcy, insolvency,
reorganization and other similar laws of general application relating to or
affecting the rights and remedies of creditors and that the remedy of specific
enforcement or of injunctive relief is subject to the discretion of the court
before which any proceeding therefor may be brought.
SECTION 3.03. No Breach; Required Filings and Consents. (a) The
----------------------------------------
execution and delivery of this Agreement by such Stockholder does not, and the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, with or without the giving of notice or lapse of
time, or both, conflict with, or result in a breach or violation of, or a
default under the provisions of, or give rise to a right of termination,
cancellation or acceleration of any obligation or to a loss of a material
benefit under (i) the Certificate of Incorporation or By-laws, trust agreement
or similar organizational documents of such Stockholder (in the case of a
Stockholder that is a corporation, partnership, trust or other legal entity), or
(ii) any covenant, agreement, indenture or instrument
12
to which such Stockholder or (if such Stockholder purports to be a corporation)
any of its subsidiaries is a party or any order, ruling, decree, judgment,
arbitration award, statute, law, ordinance, rule, regulation or stipulation to
which such Stockholder or (if such Stockholder purports to be a corporation) any
of its subsidiaries or its or their respective properties or assets is subject,
or result in the creation of any lien, charge or encumbrance upon any of such
Stockholder's Shares. No trust of which such Stockholder is a trustee requires
the consent of any beneficiary to the execution and delivery of this Agreement,
to the compliance with the provisions hereof and to the consummation of the
transactions contemplated hereby that has not been previously obtained.
(b) The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder will not,
require any approval, order or authorization of, or filing or registration with,
or allowance by, or consent of or notification to any federal, state or local
government or any court, administrative or regulatory agency or commission or
other governmental authority or agency, domestic or foreign, except for
applicable
13
requirements, if any, (A) of the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder, (B) the HSR Act, and (C) as may be
required by any applicable state securities or takeover laws.
SECTION 3.04. Title to Shares; No Other Shares or Proxy. Such
-----------------------------------------
Stockholder is the record and beneficial owner of, or is a trustee of a trust
that is the record owner of, and whose beneficiaries are the beneficial owners
of, the number of Existing Shares set forth opposite such Stockholder's name on
Exhibit A, free and clear of any pledge, lien, security interest, charge, claim,
equity, option, proxy, voting restriction, right of first refusal or other
limitation on disposition or encumbrance of any kind, other than pursuant to
this Agreement and other than those Shares covered by Section 7.11 that are
pledged. The number of Existing Shares set forth opposite such Stockholder's
name on Exhibit A hereto represent the only Shares owned of record or
beneficially by such Stockholder as of the date hereof. Such Stockholder has
full right, power and authority to sell, pledge, transfer and deliver its
Existing Shares pursuant to this Agreement, except for those Shares covered by
Section 7.11 that are pledged, and upon the acquisition of any After-Acquired
Shares will have full
14
right, power and authority to sell, pledge, transfer and deliver such After-
Acquired Shares pursuant to this Agreement. Upon delivery of the Shares
purchased from such Stockholder and payment of the Option Price therefor as
contemplated herein, Parent will receive good and valid title to such Shares,
free and clear of any pledge, lien, security interest, charge, claim, equity,
option, proxy, voting restriction or encumbrance of any kind. There are no
outstanding proxies with respect to Shares owned of record or beneficially by
such Stockholder.
SECTION 3.05. No Brokers. No broker, investment banker, financial
----------
advisor or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission from Parent, Purchaser or the
Company in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of such Stockholder, except as otherwise
specifically provided in the Merger Agreement or made by or on behalf of Parent
or Purchaser or its authorized representatives.
SECTION 3.06. Consideration for Proxy. Such Stockholder understands
-----------------------
and acknowledges that Parent is entering into, and causing Purchaser to enter
into, the Merger Agreement conditioned upon Stockholder's execution
15
and delivery of this Agreement. Such Stockholder acknowledges that the
irrevocable proxy set forth in Section 5.02 is granted in consideration for the
execution and delivery of the Merger Agreement by Parent and Purchaser.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby makes the same representations and warranties to each
Stockholder as Parent has made to the Company in Article V of the Merger
Agreement with the same effect as though such representations and warranties
were herein set forth in full.
ARTICLE V
TRANSFER AND VOTING OF SHARES; APPOINTMENTS;
NO SOLICITATION
SECTION 5.01. Transfer of Shares. During the term of this Agreement,
------------------
and except as otherwise provided herein or with the prior written consent of
Parent, each Stockholder shall not (a) sell, pledge or otherwise dispose of any
of its Shares, (b) deposit its Shares into a voting trust or enter into a voting
agreement or arrangement with respect to such Shares, (c) grant any proxy,
power-of-attorney or other authorization in or with respect to such Shares or
(d) enter into any
16
contract, option or other arrangement or undertaking with respect to the direct
or indirect sale, assignment, transfer or other disposition of any Shares.
SECTION 5.02. Voting of Shares; Further Assurances. (a) Each
------------------------------------
Stockholder, by this Agreement, does hereby constitute and appoint Parent, or
any nominee of Parent (the "Proxyholder"), with full power of substitution,
during and only for the term of this Agreement, as its true and lawful attorney
and proxy, for and in its name, place and stead, to vote each of such
Stockholder's Shares as its proxy, at every annual, special or adjourned meeting
of the stockholders of the Company (including the right to sign its name (as
stockholder) to any consent, certificate or other document relating to the
Company that the law of the State of Delaware may permit or require) as follows:
(i) in favor of approval and adoption of the Merger Agreement and all related
matters; (ii) against any action or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement; and (iii)
against any action or agreement (other than the Merger Agreement or the
transactions contemplated thereby) that would impede,
17
interfere with, delay, postpone or attempt to discourage the Merger (together
with (i) and (ii) above, the "Permitted Matters"). EACH STOCKHOLDER INTENDS THAT
PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND FOR SO LONG AS THIS
AGREEMENT IS IN EFFECT THIS PROXY BE IRREVOCABLE AND COUPLED WITH AN INTEREST IN
THE SHARES AND SUPPORTED BY THE PLEDGE OF THE SHARES AS PROVIDED HEREIN. Each
Stockholder hereby revokes any proxy previously granted with respect to Shares
owned of record or beneficially by such Stockholder. The proxy granted hereby
shall expire and have no further force or effect upon the termination of this
Agreement. Each Stockholder agrees to refrain from taking any action contrary to
or in any manner inconsistent with the terms of this Agreement, including, with
respect to the Permitted Matters only, (a) voting at any annual, special or
adjourned meeting of the stockholders of the Company, (b) executing any written
consent in lieu of a meeting of the stockholders of the Company, (c) exercising
any rights of dissent with respect to the Shares and (d) granting any proxy or
authorization to any person with respect to the voting of the Shares, except
pursuant to this Agreement. Each Stockholder acknowledges receipt of, and that
it has reviewed, a copy of the Merger Agreement.
18
(b) Each Stockholder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in the
Proxyholder the power to carry out the provisions of this Agreement.
SECTION 5.03. Appointment of Attorney-in-Fact. Subject to the
-------------------------------
provisions of Section 7.11 hereof each Stockholder hereby irrevocably (a)
appoints each Proxyholder as such Stockholders' attorneys-in-fact, with an
irrevocable instruction to the Proxyholder (i) validly to tender such
Stockholder's Shares into the Offer, (ii) properly to withdraw such
Stockholder's Shares from the Offer, (iii) to transfer such Stockholder's Shares
at the Stock Option Closing, and (iv) to execute any instrument of transfer
and/or other documents and do all such other acts and things as may in the
opinion of the Proxyholder be necessary or expedient for the purpose of, or in
connection with, tendering or withdrawing such Shares into or from the Offer or
transferring such Shares at the Stock Option Closing and (b) agrees not to
exercise or attempt to exercise any rights pertaining to the Shares without the
prior written consent of Parent.
SECTION 5.04. No Solicitation. Each Stockholder agrees to abide by
---------------
the terms of Section
19
6.1(l) of the Merger Agreement. Nothing contained in this Section 5.04 shall be
deemed to prevent any Stockholder in his capacity as an officer or director of
the Company from exercising his fiduciary duties.
SECTION 5.05. Other Actions. Each Stockholder serving as a trustee
-------------
of a revocable trust, and each beneficiary of such trust, shall not take any
action to revoke or terminate such trust or take any other action to restrict,
limit or frustrate in any way the transactions contemplated by this Agreement.
Each such beneficiary hereby acknowledges and agrees to be bound by the terms of
this Agreement applicable to it.
ARTICLE VI
TERMINATION
SECTION 6.01. Termination. This Agreement shall terminate upon the
-----------
earlier to occur of (i) the termination of the Merger Agreement or (ii) the
Effective Time of the Merger. Upon termination, this Agreement shall have no
further force or effect, except for Section 1.01(b) and Section 7.07 which shall
continue to apply to any case, action or proceeding relating to the enforcement
of this Agreement.
20
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.01. Notices. All notices and other communications given or
-------
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date delivered, mailed or transmitted, and shall be
effective upon receipt, if delivered personally, mailed by registered or
certified mail (postage prepaid, return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like changes of address) or sent by electronic transmission to the telecopier
number specified below:
(a) If to Parent:
American Brands, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, XX, Esq.
Telecopier No.: 000-000-0000
with a copy to:
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopier No.: 000-000-0000
(b) If to a Stockholder, to the address set forth below such
Stockholder's name on the signature pages hereof:
21
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Xxxxxx X. Xxxxxx, Esq.
Telecopier No.: 213-687-5600
SECTION 7.02. Headings. The headings in this Agreement are
--------
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
SECTION 7.03. Severability. If any term or other provision of this
------------
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
22
SECTION 7.04. Entire Agreement. This Agreement supersedes any and
----------------
all oral or written agreements and understandings heretofore made relating to
the subject matter hereof and contains the entire agreement of the parties
hereto relating to the subject matter hereof.
SECTION 7.05. Assignment. This Agreement shall not be assigned by
----------
operation of law or otherwise.
SECTION 7.06. Parties in Interest. This Agreement shall be binding
-------------------
upon and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
SECTION 7.07. Specific Performance; Injunctions. The parties hereto
---------------------------------
agree that irreparable damage would occur in the event any provision of this
Agreement was not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of, and injunctive relief to
prevent breaches of or non-compliance with, the terms hereof, in addition to any
other remedy at law or in equity.
23
SECTION 7.08. Expenses. Each of the parties hereto shall pay,
--------
without right of reimbursement from any other party hereto, the costs incurred
by such party incident to the performance of such party's obligations hereunder,
whether or not the transactions contemplated hereby shall be consummated,
including, without limitation, the fees and disbursements of counsel,
accountants and consultants employed by the respective parties hereto in
connection with the transactions contemplated hereby.
SECTION 7.09. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the internal laws of the State of Delaware.
SECTION 7.10. Counterparts. This Agreement may be executed in
------------
several counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
SECTION 7.11. Previously Pledged, Lost or Stolen Shares. Solely with
-----------------------------------------
respect to the 300,582 Shares owned of record by The Xxxx X. Xxxxxxxxx and
Xxxxxxxx X. Xxxxxxxxx Living Trust Dated 1-4-80, the 26,667 Shares owned of
record by Xxxxxxx Xxxxx (collateral account) and 50,000 Shares of the 602,351
Shares owned of record by the Crow 1990 Community Property Trust Dated 6-8-90,
24
which have been previously pledged, or as to which certificates have been lost
or stolen, such Stockholder shall not be obligated to grant the pledge or
security interest contemplated by Section 1.01 or the appointment of attorney-
in-fact contemplated by Section 5.03 with respect to such Shares but shall
instead tender such Shares into the Offer as promptly as reasonably practicable
in accordance with Section 1.02 and withdraw and retender such Shares to the
extent required by Section 1.02 and the terms hereof; provided, that if such
Shares are no longer pledged, or such lost or stolen certificates representing
such Shares are replaced, found or recovered, then with respect to such Shares
such Stockholder shall promptly arrange for the grant of the pledge and security
interest contemplated by Section 1.01 and the appointment of attorney-in-fact
contemplated by Section 5.03.
25
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMERICAN BRANDS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx XX
---------------------------
Name: Xxxxxxx X. Xxxxxxx XX
Title: Senior Vice President
and General Counsel
XXXX X. XXXXXXXX LIVING TRUST
DATED 12-30-92
By: /s/ Xxxx X. Xxxxxxxx
---------------------------
Xxxx X. Xxxxxxxx, its
trustee
Address: 00000 Xxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
XXXX X. XXXXXXXX AND XXXXXXX
X. XXXXXXXX CHARITABLE
REMAINDER TRUST DATED 11-22-94
By: /s/ Xxxx X. Xxxxxxxx
---------------------------
Xxxx X. Xxxxxxxx, its
trustee
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxxx, its
trustee
XXXXXXXX CHILDREN'S TRUST
DATED 12-30-92
By: /s/ Xxxx X. Xxxxxxxx
---------------------------
Xxxx X. Xxxxxxxx, its
trustee
26
CROW 1990 COMMUNITY PROPERTY
TRUST DATED 6-8-90
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Xxxxxx X. Xxxx, its
trustee
Address: 0000 Xxxx Xxxx
Xxxx, Xx Xxxxx, XX 00000
By: /s/ Xxxxx Xxx Xxxx
-----------------------------
Xxxxx X. Xxxx, its
trustee
XXXXXX X. XXXX 9% NET INCOME
WITH MAKE-UP CHARITABLE
REMAINDER TRUST #1
DATED 12-17-94
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Xxxxxx X. Xxxx, its
trustee
By: /s/ Xxxxx Xxx Xxxx
-----------------------------
Xxxxx X. Xxxx, its
trustee
XXXXXX X. XXXX 20% NET INCOME
WITH MAKE-UP CHARITABLE
REMAINDER TRUST #2
DATED 12-17-94
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Xxxxxx X. Xxxx, its
trustee
By: /s/ Xxxxx Xxx Xxxx
-----------------------------
Xxxxx X. Xxxx, its trustee
27
XXXXXX X. XXXX G.P. FBO CROW
FAMILY LIMITED PARTNERSHIP
ACCOUNT #1
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Xxxxxx X. Xxxx, its _____
By: /s/ Xxxxx Xxx Xxxx
-----------------------------
Xxxxx X. Xxxx, its ______
XXXXXXX XXXXX (COLLATERAL
ACCOUNT)
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Xxxxxx X. Xxxx, its _____
28
VANDEWEGHE LIVING TRUST
DATED 11-16-92
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------
Xxxx X. Xxxxxxxxxx, its
trustee
Address: 0000 Xxxxxxxxx
Xxxxx, Xxx Xxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxxxx, its
trustee
TAV TRUST DATED 11-17-92
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------
Xxxx X. Xxxxxxxxxx, its
trustee
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxxxx, its
trustee
29
GREENSIDE UNITRUST A
CHARITABLE REMAINDER
UNITRUST DATED 11-18-94
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------
Xxxx X. Xxxxxxxxxx, its
trustee
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxxxx, its
trustee
GREENSIDE FOUNDATION A
CHARITABLE FOUNDATION
DATED 11-18-94
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------
Xxxx X. Xxxxxxxxxx, its
trustee
30
XXXXXX X. XXXXXXX LIVING TRUST
DATED 8-5-80
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxx, its
trustee
Address: 000 X. Xxxxxxxxx
Xxxx, Xxxxxxx, XX 00000
STARR CHARITABLE REMAINDER
UNITRUST DATED 8-3-94
(NIMCRUT #1)
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxx, its
trustee
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Xxxxx Xxxxxxx, its trustee
31
THE XXXX X. XXXXXXXXX AND
XXXXXXXX X. XXXXXXXXX
LIVING TRUST DATED 1-4-80
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------
Xxxx X. Xxxxxxxxx, its
trustee
Address: 000 X. Xxxxx
Xxxx Xxx., Xxx Xxx, XX
00000
XXXX X. XXXXXXXXX AND XXXXXXXX
X. XXXXXXXXX CHARITABLE
REMAINDER TRUST DATED 12-13-93
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------
Xxxx X. Xxxxxxxxx, its
trustee
XXXXXXXX XXXXX XXXXXXXXX
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------
Xxxx X. Xxxxxxxxx, as
custodian (Under
California Uniform
Transfers to Minors Act)
XXXXX XXXXXXXXX XXXXXXXXX
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------
Xxxx X. Xxxxxxxxx, as
custodian (Under
California Uniform
Transfers to Minors Act)
32
DECLARATION OF TRUST DATED
12-13-93
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------
Xxxx X. Xxxxxxxxx, as
trustee
33
XXXXXX X. XXXXXXX LIVING TRUST
DATED 6-8-94
By: /s/ Xxxxxx X. Xxxxxxx*
------------------------------
Xxxxxx X. Xxxxxxx, as
trustee
Address: X.X. Xxx 0000,
Xxxxxxx Xxxxxxx, XX 00000
XXXXXX X. XXXXXXX CHARITABLE
FOUNDATION DATED 12-5-85
By: /s/ Xxxxxx X. Xxxxxxx*
------------------------------
Xxxxxx X. Xxxxxxx, as
trustee
XXXXXX X. XXXXXXX CHARITABLE
REMAINDER TRUST DATED 12-22-94
By: /s/ Xxxxxx X. Xxxxxxx*
------------------------------
Xxxxxx X. Xxxxxxx, as
trustee
* All by Xxxx X. Xxxxxxxxxx
as attorney in fact
34
Exhibit A
---------
Number of
---------
Stockholder Shares
----------- ------
Xxxx X. Xxxxxxxx Living Trust Dated 1,216,890
12-30-92
Xxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx 300,000
Charitable Remainder Trust Dated
11-22-94
Xxxxxxxx Children's Trust Dated 12-30-92 252,468
Crow 1990 Community Property Trust 602,351
Dated 6-8-90
Xxxxxx X. Xxxx 9% Net Income With 279,721
Make-up Charitable Remainder Trust #1 Dated
12-17-94
Xxxxxx X. Xxxx 20% Net Income With 55,945
Make-up Charitable Remainder Trust #2 Dated
12-17-94
Xxxxxx X. Xxxx G.P. FBO Crow Family 250,000
Limited Partnership Account #1
Xxxxxxx Xxxxx (collateral account) 26,667
Vandeweghe Living Trust Dated 11-16-92 338,352
TAV Trust Dated 11-17-92 71,290
Greenside Unitrust A Charitable 50,000
Remainder Unitrust Dated 11-18-94
Greenside Foundation A Charitable 25,000
Foundation Dated 11-18-94
Xxxxxx X. Xxxxxxx Living Trust Dated 662,889
8-5-80
Starr Charitable Remainder Unitrust 11,889
Dated 8-3-94 (NIMCRUT #1)
The Xxxx X. Xxxxxxxxx and Xxxxxxxx X. 300,582
Xxxxxxxxx Living Trust Dated 1-4-80
Xxxx X. Xxxxxxxxx and Xxxxxxxx X. 15,192
Xxxxxxxxx Charitable Remainder Trust
Dated 12-13-93
Xxxx X. Xxxxxxxxx as Custodian for 1,900
Xxxxxxxx Xxxxx Xxxxxxxxx (Under
California Uniform Transfers to Minors
Act)
Xxxx X. Xxxxxxxxx as Custodian for 1,900
Xxxxx Xxxxxxxxx Xxxxxxxxx (Under
California Uniform Transfers to Minors
Act)
Xxxx X. Xxxxxxxxx as Trustee under 1,900
Declaration of Trust Dated 12-13-93
Xxxxxx X. Xxxxxxx Living Trust Dated 409,642
6-8-94
Xxxxxx X. Xxxxxxx Charitable Foundation 50,000
Dated 12-5-85
Xxxxxx X. Xxxxxxx Charitable Remainder 25,000
Trust Dated 12-22-94
35
December 29, 1995
STOCK TRANSFER AGREEMENT
WHEREAS, each of the Xxxxxx X. Xxxxxxx Living Trust dated August 5, 1980
(the "Xxxxxxx Living Trust"), of which Xx. Xxxxxxx is the sole Trustee, Xxxxxx
X. Xxxx, as custodian of a Xxxxxxx Xxxxx collateral account (the "Xxxxxxx Xxxxx
Account"), the Crow 1990 Community Property Trust dated June 8, 1990 (the "Crow
Community Property Trust"), of which Xxxxxx X. and Xxxxx Xxx Xxxx, husband and
wife, are the sole co-Trustees, the Xxxxxx X. Xxxxxxx Living Trust dated June 8,
1994 (the "Xxxxxxx Living Trust"), of which Xx. Xxxxxxx is the sole Trustee, and
the Xxxxxx X. Xxxxxxx Charitable Remainder Trust dated December 22, 1994 (the
"Xxxxxxx Charitable Remainder Trust"), of which Xx. Xxxxxxx is the sole Trustee
(collectively, the "Stockholders"), is a party to the Stock Option and Tender
Agreement (the "Agreement"), dated as of December 18, 1995, among the
Stockholders, certain other parties thereto and American Brands, Inc. (the
"Company");
WHEREAS, pursuant to Section 5.01 of the Agreement each of the Stockholders
has agreed not to transfer their shares of common stock par value $.001 per
share (the "Common Stock") of Cobra Golf Incorporated, without the Company's
prior written consent;
WHEREAS, each of the Stockholders wishes to transfer ownership of certain
shares of Common Stock and seeks the consent of the Company to such transfer and
the Company wishes to consent to such transfer;
WHEREAS, the Xxxxxx X. & Xxxxx X. Xxxxxxx 5% Net Income with Make-up
Charitable Remainder Unitrust #1 dated December 22, 1994 (the "Xxxxxxx
Charitable Unitrust #1"), of which Xxxxxx X. and Xxxxx X. Xxxxxxx, husband and
wife, are the sole co-Trustees, holds 111,889 shares
of Common Stock transferred to it by the Starr Charitable Remainder Unitrust
dated August 3, 1994 (NIMCRUT #1), and wishes to become a party to the
Agreement;
WHEREAS, the Xxxxxxx Living Trust wishes to transfer 622,889 shares of
Common Stock into the Xxxxxx X. & Xxxxx X. Xxxxxxx 10% Charitable Remainder
Unitrust #2 dated December 22, 1994 (the "Xxxxxxx Charitable Unitrust #2"), of
which Xxxxxx X. and Xxxxx X. Xxxxxxx, husband and wife, are the sole co-
Trustees, and the Xxxxxxx Charitable Unitrust #2 wishes to become a party to the
Agreement;
WHEREAS, the Xxxxxxx Living Trust wishes to transfer 40,000 shares of
Common Stock into the Xxxxxxx Family Living Trust dated December 22, 1994 (the
"Family Living Trust"), of which Xxxxxx X. and Xxxxx X. Xxxxxxx, husband and
wife, are the sole co-Trustees, and the Family Living Trust wishes to become a
party to the Agreement;
WHEREAS, the TLC/CGC Trust dated February 27, 1995 (the "TLC/CGC Trust"),
of which Xxxxx X. Xxxxxxx and Southpac International Trust, Inc., are the sole
co-Trustees, holds 436,018 shares of Common Stock transferred to it by the Crow
Community Property Trust for the benefit of Xxxxxx X. & Xxxxx Xxx Xxxx, and
wishes to become a party to the Agreement;
WHEREAS, Xxxxxx X. Xxxx, as custodian of the Xxxxxxx Xxxxx Account, wishes
to transfer 22,667 shares of Common Stock into the Xxxxxx X. Xxxx 6% Net Income
with Make-up Charitable Remainder Trust #3 dated July 6, 1995 (the "Crow
Charitable Remainder Trust"), of which Xxxxxx X. and Xxxxx Xxx Xxxx, husband and
wife, are the sole co-Trustees, and the Crow Charitable Remainder Trust wishes
to become a party to the Agreement;
WHEREAS, Xxxxxx X. Xxxx, as custodian of the Xxxxxxx Xxxxx Account, wishes
to transfer 4,000 shares of Common Stock into the Crow Community Property Trust;
WHEREAS, the Crow Community Property Trust wishes to transfer 116,333
shares of Common Stock into the Crow Charitable Remainder Trust; and
WHEREAS, the Xxxxxxx Living Trust wishes to transfer 3,300 and 70,000
shares of Common Stock in 1995 and 1996, respectively, into the Xxxxxxx
Charitable Remainder Trust,
NOW, THEREFORE, the parties hereto agree as follows:
1. The Xxxxxxx Living Trust may transfer 622,889 and 40,000 shares of
Common Stock held by it into the Xxxxxxx Charitable Unitrust #2 and the Family
Living Trust (collectively the "Xxxxxxx Transferees"), respectively;
2. Xxxxxx X. Xxxx may transfer 4,000 shares of Common Stock from the
Xxxxxxx Xxxxx Account into the Crow Community Property Trust; Xxxxxx X. Xxxx may
transfer 22,667 shares of Common Stock from the Xxxxxxx Xxxxx Account into the
Crow Charitable Remainder Trust and the Crow Community Property Trust may also
transfer 116,333 shares of Common Stock held by it into the Crow Charitable
Remainder Trust (the "Crow Transferee");
3. The Xxxxxxx Living Trust may transfer 3,300 and 70,000 shares of Common
Stock held by it in 1995 and 1996, respectively, into the Xxxxxxx Charitable
Remainder Trust (the "Xxxxxxx Transferee", and, together with the Xxxxxxx
Transferees and the Crow Transferee, the "Transferees");
4. The Transferees, the TLC/CGC Trust and the Xxxxxxx Charitable Unitrust
#1 agree that they will be bound by the terms of the Agreement as if they were
parties thereto on the date it was entered into and hereby, severally, but not
jointly, makes the same representations and warranties to the Company as those
made by the Selling Stockholders (as defined in the Agreement) in the Agreement,
except that any reference to Exhibit A in Section 3.04 of the Agreement shall be
deemed to be a reference to Annex A hereto and further agree that all
shares of Common Stock held by them or received by them in the transfers
described in Items 1 through 3 above shall constitute Existing Shares (as
defined in the Agreement) for purposes of such Agreement; and
5. Notwithstanding the foregoing, (i) the Transferees, the TLC/CGC Trust
and the Xxxxxxx Charitable Unitrust #1 shall not be obligated to deliver to the
Company certificates representing such Existing Shares held by them until 5:00
p.m. New York time on December 29, 1995, provided however, that certificates
representing 73,300 and 119,021 shares of Common Stock may be delivered by the
Xxxxxxx Charitable Remainder Trust and the Xxxxxxx Living Trust, respectively,
up to 5:00 p.m. New York time on January 3, 1996, and (ii) neither Xxxxx X.
Xxxxxxx nor Southpac International Trust, Inc., as the sole co-Trustees of the
TLC/CGC Trust, shall be deemed to have given a proxy pursuant to section 5.02 of
the Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of
the date first above written.
American Brands, Inc.
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title:
XXXXXX X. XXXXXXX LIVING TRUST DATED
AUGUST 5, 1980
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
XXXXXX X. AND XXXXX X. XXXXXXX 5% NET INCOME WITH MAKE-UP
CHARITABLE REMAINDER UNITRUST #1 DATED DECEMBER 22, 1994
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
By: /s/ XXXXX X. XXXXXXX
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Trustee
XXXXXX X. AND XXXXX X. XXXXXXX 10%
CHARITABLE REMAINDER UNITRUST #2 DATED
DECEMBER 22, 1994
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
By: /s/ XXXXX X. XXXXXXX
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Trustee
XXXXXXX FAMILY LIVING TRUST DATED
DECEMBER 22, 1994
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
By: /s/ XXXXX X. XXXXXXX
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Trustee
XXXXXXX XXXXX ACCOUNT #240-27K85
By: /s/ XXXXXX X. XXXX
----------------------------
Xxxxxx X. Xxxx, its custodian
TLC/CGC TRUST DATED FEBRUARY 27, 1995
By: /s/ XXXXX X. XXXXXXX
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Trustee
By: /s/ SOUTHPAC INTERNATIONAL TRUST
----------------------------
Name: Southpac International Trust
Title: Trustee
XXXXXX X. XXXX 6% NET INCOME WITH MAKE-UP
CHARITABLE REMAINDER TRUST #3 DATED JULY
6, 1995
By: /s/ XXXXXX X. XXXX
----------------------------
Name: Xxxxxx X. Xxxx
Title: Trustee
By: /s/ XXXXX XXX XXXX
----------------------------
Name: Xxxxx Xxx Xxxx
Title: Trustee
CROW 1990 COMMUNITY PROPERTY TRUST DATED JUNE 8, 1990
By: /s/ XXXXXX X. XXXX
----------------------------
Name: Xxxxxx X. Xxxx
Title: Trustee
By: /s/ XXXXX XXX XXXX
----------------------------
Name: Xxxxx Xxx Xxxx
Title: Trustee
THE XXXXXX X. XXXXXXX LIVING TRUST DATED
JUNE 8, 1994
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
THE XXXXXX X. XXXXXXX CHARITABLE REMAINDER
TRUST DATED DECEMBER 22, 1994
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
ANNEX A
After giving effect to the transactions contemplated by this Stock Transfer
Agreement, the following parties beneficially own the following number of shares
of Common Stock.
Number of
Stockholder Shares
----------- ---------
XXXXXXX
Xxxxx Charitable Remainder Unitrust Dated 0
August 3, 1994 (NIMCRUT #1)***
Xxxxxx X. & Xxxxx X. Xxxxxxx 5% Net Income 111,889
With Make-up Charitable Remainder Unitrust #1
Dated December 22, 1994
Xxxxxx X. Xxxxxxx Living Trust Dated August 5, 0
1980
Xxxxxx X. & Xxxxx X. Xxxxxxx 10% Charitable 622,889
Remainder Unitrust #2 Dated December 22, 1994
Xxxxxxx Family Living Trust Dated December 22, 40,000
1994
XXXX
Xxxxxxx Xxxxx (collateral account #240-27K85) 0
TLC/CGC Trust Dated February 27, 1995 436,018
Xxxxxx X. Xxxx 6% Net Income With Make-up 139,000
Charitable Remainder Trust #3 Dated July 6,
1995
Crow 1990 Community Property Trust Dated June 54,000
8, 1990
Xxxxxx X. Xxxx 9% Net Income with Make-up 279,721
Charitable Remainder Trust #1 Dated December
17, 1994***
Xxxxxx X. Xxxx 20% Net Income with Make-up 55,945
Charitable Remainder Trust #2 Dated December
17, 1994***
Xxxxxx X. Xxxx G.P. FBO Crow Family Limited 250,000
Partnership Account #1***
XXXXXXX
Xxxxxx X. Xxxxxxx Living Trust Dated June 8, 336,342*
1994
Xxxxxx X. Xxxxxxx Charitable Remainder Trust 98,300**
Dated December 22, 1994
Xxxxxx X. Xxxxxxx Charitable Foundation Dated 50,000
December 5, 1985***
* Excludes 3,300 shares which will be transferred in 1995 and 70,000 shares
which will be transferred before January 3, 1996 in each case into the
Xxxxxx X. Xxxxxxx Charitable Remainder Trust Dated December 22, 1994
from Certificate No. SD1309 (in the amount of 192,321 shares of Common
Stock), and includes a new certificate will be issued before January 3,
1996 for the balance to the Xxxxxx X. Xxxxxxx Living Trust Dated June 8,
1994.
** Includes 3,300 shares of Common Stock to be transferred in 1995 and
70,000 shares of Common Stock to be transferred before January 3, 1996
from the Xxxxxx X. Xxxxxxx Living Trust Dated June 8, 1994.
*** Party to the Stock Option and Tender Agreement but not a party to this
Stock Transfer Agreement.
