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EXHIBIT 4.6
EXECUTION COPY
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SECURITIES AGREEMENT
AMONG
XXXX SPORTS HOLDINGS, L.L.C.,
ANDSONICA ACQUISITION CORP.,
XXXX SPORTS CORP.,
AND
THE SECURITY HOLDERS LISTED HEREIN
DATED AS OF JUNE 13, 2000
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TABLE OF CONTENTS
Page
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1. Definitions..............................................................................................1
2. Other Covenants, Representations and Warranties
of Stockholders..........................................................................................2
2.1 Ownership of Securities.........................................................................2
2.2 Power; Binding Agreement........................................................................2
2.3 No Conflicts....................................................................................3
2.4 No Encumbrances.................................................................................3
2.5 No Solicitation.................................................................................4
2.6 Restriction on Transfer, Proxies
and Non-Interference............................................................................4
2.7 Waiver of Appraisal Rights......................................................................4
2.8 Reliance by Acquisition Company.................................................................4
2.9 Further Assurances..............................................................................4
2.10 No Finder's Fees................................................................................5
3. Provisions Concerning Company Common Stock...............................................................5
4. Conduct as to Subject Securities.........................................................................6
4.1 Permission to Disclose..........................................................................6
4.2Stop Transfer; Changes in Securities..................................................................6
5. Conduct as a Director....................................................................................6
6. Miscellaneous............................................................................................6
6.1 Entire Agreement................................................................................6
6.2 Certain Events..................................................................................7
6.3 Assignment......................................................................................7
6.4 Amendments, Waivers, Etc........................................................................7
6.5 Notices.........................................................................................7
6.6 Severability....................................................................................8
6.7 Specific Performance............................................................................8
6.8 Remedies Cumulative.............................................................................9
6.9 No Waiver.......................................................................................9
6.10 No Third Party Beneficiaries....................................................................9
6.11 Governing Law...................................................................................9
6.12 Jurisdiction....................................................................................9
6.13 Descriptive Headings............................................................................9
6.14 Counterparts; Effectiveness....................................................................10
6.15 Termination....................................................................................10
6.17 Irrevocable Proxy..............................................................................10
(i)
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EXHIBITS
Exhibit A - Form of Irrevocable Proxy
SCHEDULES
Schedule 1 - List of Securities Holders and Securities Ownership
(ii)
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SECURITIES AGREEMENT
SECURITIES AGREEMENT dated as of June 13, 2000, among Xxxx Sports
Holdings, L.L.C., a Delaware limited liability company ("PARENT"), Andsonica
Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
Parent ("ACQUISITION COMPANY"), Xxxx Sports Corp., a Delaware corporation (the
"COMPANY"), and the other parties signatory hereto (individually a "STOCKHOLDER"
and collectively, the "STOCKHOLDERS").
WITNESSETH:
WHEREAS, concurrently herewith, Parent, Acquisition Company and the
Company, are entering into an Agreement and Plan of Merger (as such agreement
may hereafter be amended from time to time, the "MERGER AGREEMENT"), pursuant to
which Acquisition Company will be merged with and into the Company (the
"MERGER"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, the parties hereto have required that they agree, and such parties
have agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. For purposes of this Agreement:
1.1. "Acquisition Company" shall have the meaning set
forth in the recitals hereto.
1.2. "Company" shall have the meaning set forth in the
recitals hereto.
1.3. "Company Common Stock" shall mean at any time the
Common Stock, $.01 par value, of the Company.
1.4. "Existing Discount Notes" shall mean the 14% Senior
Discount Debentures due 2009 originally issued by the Company on August 17,
1998.
1.5. "Existing Shares" shall mean, with respect to any
Stockholder, the number of shares of Company Common Stock set forth opposite
such Stockholder's name on Schedule 1 hereto.
1.6. "Merger" shall have the meaning set forth in the
recitals hereto.
1.7. "Merger Agreement" shall have the meaning set forth
in the recitals hereto.
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1.8. "Parent" shall have the meaning set forth in the
recitals hereto.
1.9. "Proxy" shall have the meaning set forth in Section
6.16 hereto.
1.10. "Securities" shall mean Shares and Existing Discount
Notes.
1.11. "Shares" shall mean shares of Company Common Stock.
1.12. "Stockholder" shall have the meaning set forth in the
recitals hereto.
1.13. "Termination Date" shall have the meaning set forth
in Section 6.15 hereto.
1.14. Capitalized Terms. Capitalized terms used and not
defined herein have the respective meanings ascribed to them in the Merger
Agreement.
2. Other Covenants, Representations and Warranties of
Stockholders. Each Stockholder hereby represents, warrants and covenants,
severally and not jointly, to Parent with respect to such Stockholder as
follows:
2.1 Ownership of Securities. Stockholder is the record
and beneficial owner of the Securities set forth opposite such Stockholder's
name on Schedule 1 hereto. On the date hereof, the Securities set forth opposite
such Stockholder's name on Schedule 1 hereto constitute all of the Securities
owned of record by such Stockholder. Stockholder has sole voting power and sole
power to issue instructions with respect to the matters set forth in this
Agreement and the Proxy, sole power of disposition, sole power of exercise and
conversion, sole power to demand appraisal rights and sole power to agree to all
of the matters set forth in this Agreement and Proxy, in each case with respect
to all of the Securities set forth opposite Stockholder's name on Schedule 1
hereto, with no limitations, qualifications or restrictions on such rights,
subject to applicable securities laws and the terms of this Agreement and the
Proxy, and subject to the Shareholders' Agreement dated as of August 17, 1998
among the Company, the Stockholders and all other shareholders of the Company
(the "SHAREHOLDERS' AGREEMENT").
2.2 Power; Binding Agreement. Stockholder has the legal
capacity, power and authority to enter into and perform all of Stockholder's
obligations under this Agreement and the Proxy. The execution, delivery and
performance of this Agreement and the Proxy have been duly authorized by such
Stockholder and do not and will not violate any other agreement (including but
not limited to the Shareholders' Agreement) to which Stockholder is a party or
by which any of such Stockholder's Securities are bound, including,
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without limitation, any voting agreement, stockholders agreement or voting
trust. This Agreement and the Proxy have been duly and validly executed and
delivered by Stockholder and constitute valid and binding agreements of such
Stockholder, enforceable against such Stockholder in accordance with their
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
There is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which Stockholder is trustee whose consent is required
for the execution and delivery of this Agreement, the Proxy or the consummation
by the Stockholder of the transactions contemplated hereby and thereby.
2.3 No Conflicts. Except for filings under the HSR Act,
the Exchange Act and any applicable state antitrust laws, (a) no filing with,
and no permit, authorization, consent or approval of, any state or federal
public body or authority or any other Person is necessary for the execution of
this Agreement and the Proxy by Stockholder and the consummation by Stockholder
of the transactions contemplated hereby and thereby and (b) none of the
execution and delivery of this Agreement and the Proxy by Stockholder, the
consummation by such Stockholder of the transactions contemplated hereby and
thereby or compliance by Stockholder with any of the provisions hereof or
thereof shall (i) conflict with or result in any breach of any applicable
organizational documents of Stockholder, (ii) result in a violation or breach
of, or constitute (with or without notice or lapse of time or both) a default
(or give rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any license, Contract, understanding or other instrument or obligation of any
kind to which Stockholder is a party or by which such Stockholder or any of such
Stockholder's properties or assets may be bound, or (iii) violate any Order or
regulation applicable to Stockholder or any of Stockholder's properties or
assets.
2.4 No Encumbrances. Except pursuant to this Agreement
and the Proxy, Stockholder's Securities and the certificates representing such
Shares and debentures are now, and at all times during the term hereof will be,
held by such Stockholder, or by a nominee or custodian for the benefit of such
Stockholder, and the Shares will be transferred at the Effective Time (and the
Existing Discount Notes, upon consummation of the Post-Merger Offer or the
exchange for Exchange Discount Notes pursuant to Section 1.6(c) of the Merger
Agreement, will be so transferred), free and clear of all claims, options, third
party rights, Liens, hypothecations, security interests, proxies, voting trusts
or agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising hereunder.
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2.5 No Solicitation. Until the earlier of the Effective
Time or the Termination Date, Stockholder shall not, in its capacity as such,
directly or indirectly, solicit or entertain offers from, negotiate or discuss
with, supply information to, or in any manner accept or knowingly encourage any
proposal of, any other Person, entity or group (other than Parent, Sub and their
representatives) (each, a "THIRD PARTY") relating to the direct or indirect
acquisition of a material portion of the Securities of the Company or any of its
Subsidiaries or all or a substantial portion of the assets or business of the
Company or any of its Subsidiaries, whether directly or indirectly, through
purchase, merger, consolidation, tender offer or otherwise (each, a "BUSINESS
COMBINATION"). Each Stockholder shall promptly notify Parent if any proposal,
offer, inquiry or contact is received from any Third Party with respect to a
Business Combination, which notification shall indicate the terms and conditions
of such proposal, offer, inquiry or contact.
2.6 Restriction on Transfer, Proxies and
Non-Interference. Beginning on the date hereof and ending on the earlier of the
Effective Time or the Termination Date, except as required to comply with the
provisions of this Agreement or the Proxy, the Stockholder shall not: (a)
directly or indirectly, offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any Contract or option
with respect to the sale, transfer, tender, pledge, encumbrance, assignment or
other disposition of, any or all of such Stockholder's Securities or any
interest therein; (b) grant any proxies or powers of attorney, deposit any
Shares into a voting trust or enter into a voting agreement with respect to any
Securities; or (c) take any action that would make any representation or
warranty of such Stockholder contained herein untrue or incorrect or have the
effect of preventing or disabling Stockholder from performing Stockholder's
obligations under this Agreement or the Proxy.
2.7 Waiver of Appraisal Rights. Each Stockholder hereby
waives any rights of appraisal or rights to dissent from the Merger that
Stockholder may have with respect to any of its Shares.
2.8 Reliance by Parent. Each Stockholder understands and
acknowledges that Parent is entering into, and causing Acquisition Company to
enter into, the Merger Agreement in reliance upon Stockholder's execution and
delivery of this Agreement and the Proxy.
2.9 Further Assurances. From time to time and until the
Termination Date, at any other party's request and without further
consideration, each party hereto shall execute and deliver such additional
documents and take all such further lawful action as may be reasonably necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement and the Proxy.
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2.10 No Finder's Fees. Other than existing financial
advisory and investment banking arrangements and agreements entered into by the
Company, no broker, investment banker, financial adviser or other Person is
entitled to any broker's, finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of such Stockholder.
2.11 Exchange/Redemption of Exchange Discount Notes. The
Stockholders and the Company agree that their respective Existing Discount Notes
shall be redeemed by the Company without penalty or premium: (a) upon the
consummation of the Indenture Amendment and the Post-Merger Offer for cash in
the event that the Indenture Amendment is consummated on or prior to October 31,
2000; or (b) on October 31, 2000, for Exchange Discount Notes having an accreted
value on the exchange date equal to the then accreted value of the Existing
Discount Notes in the event that the Indenture Amendment is not consummated on
or prior thereto.
3. Provisions Concerning Company Common Stock. Each Stockholder
hereby agrees that, during the period commencing on the date hereof and
continuing until the first to occur of the Effective Time or the Termination
Date, at any meeting of the holders of Company Common Stock, however called, or
in connection with any written consent of the holders of Company Common Stock,
such Stockholder shall vote (or cause to be voted) its Securities including any
Securities acquired by such Stockholder after the date hereof: (a) in favor of
the Merger, the execution and delivery by the Company of the Merger Agreement
and the approval of the terms thereof and each of the other actions contemplated
by the Merger Agreement and this Agreement and any actions required in
furtherance thereof and hereof; (b) against any action, any failure to act, or
agreement that would result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or this Agreement (before giving effect to any
materiality or similar qualifications contained therein); and (c) except as
otherwise agreed to in writing in advance by Parent, against the following
actions (other than the Merger and the transactions contemplated by the Merger
Agreement): (i) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or any of its
Subsidiaries; (ii) declaration of any dividend or issuance of any securities of
the Company (other than upon exercise or conversion of Securities outstanding
prior to the date hereof) or any of its Subsidiaries, (iii) a sale, lease or
transfer of a material amount of assets of the Company or its Subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company or
its Subsidiaries; (iv) (A) any change in a majority of the persons who
constitute the board of directors of the Company; (B) any change in the present
capitalization of the Company or any amendment of the Company's Certificate of
Incorporation or Bylaws; (C) any other material change in the Company's
corporate structure or business; or (D) any other action involving the Company
or its
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Subsidiaries which is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone, or materially adversely affect the Merger and
the transactions contemplated by, or which would result in a breach of, this
Agreement and the Merger Agreement. Each Stockholder agrees that it shall not
enter into any agreement with any Person prior to the Termination Date the
effect of which would be to violate the provisions and agreements contained in
this Section 3.
4. Conduct as to Shares.
4.1 Permission to Disclose. Each Stockholder hereby
agrees to permit the Company, Parent and Acquisition Company to publish and
disclose in any documents filed with any Governmental or Regulatory Authority in
connection with the Merger, including the Proxy Statement (including all
documents and schedules filed with the SEC), its identity and ownership of
Company Securities and the nature of its commitments, arrangements and
understandings under this Agreement.
4.2 Stop Transfer; Changes in Securities. Each
Stockholder agrees with, and covenants to, Parent that beginning on the date
hereof until the Termination Date, such Stockholder shall not request that the
Company, and the Company hereby agrees with, and covenants to, Parent that
beginning on the date hereof and ending on the Termination Date it will not,
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Stockholder's Securities,
unless such transfer is made in compliance with this Agreement. In the event of
a dividend or distribution, or any change in the Company Common Stock by reason
of any dividend, split-up, recapitalization, combination, exchange of shares or
the like, the term "Shares" shall be deemed to refer to and include the Shares
as well as all such dividends and distributions and any shares into which or for
which any or all of the Shares may be changed or exchanged.
5. Conduct as a Director. Notwithstanding anything in this
Agreement to the contrary, the covenants and agreements set forth herein shall
not prevent any of the Stockholders' designees serving on the Company's Board of
Directors from taking any action, subject to the applicable provisions of the
Merger Agreement, while acting in such designee's capacity as a director of the
Company; provided, that, such action shall not in any manner affect
Stockholders' obligations under this Agreement or the Proxy.
6. Miscellaneous.
6.1 Entire Agreement. This Agreement, the Proxy and the
Merger Agreement constitute the entire agreement among the parties with respect
to the subject matter hereof and supersede all other prior agreements and
understandings, both written and
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oral, among any of the parties with respect to the subject matter hereof.
6.2 Certain Events. Each Stockholder agrees that this
Agreement and the Proxy and the obligations hereunder and thereunder shall
attach to such Stockholder's Securities and shall be binding upon any person or
entity to which legal or beneficial ownership of such Securities shall pass,
whether by operation of law or otherwise, including, without limitation, such
Stockholder's heirs, guardians, administrators or successors. Notwithstanding
any transfer of Securities, the transferor shall remain liable for the
performance of all obligations of the transferor under this Agreement.
6.3 Assignment. This Agreement shall not be assigned
without the prior written consent of the other parties hereto and no rights, or
any direct or indirect interest herein, shall be transferable hereunder without
the prior written consent of the other parties hereto; provided, that,
Acquisition Company may assign or transfer its rights hereunder to any other
Person that is an Affiliate of Parent, which assignment shall not relieve Parent
of any of its respective obligations hereunder.
6.4 Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by all of
the parties to this Agreement.
6.5 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly received if so given) by hand delivery, telegram,
telex or telecopy, or by mail (registered or certified mail, postage prepaid,
return receipt requested) or by any courier services, such as Federal Express,
providing proof of delivery. All communications hereunder shall be delivered to
the respective parties at the following addresses:
If to Stockholders: At the addresses set forth on
Schedule 1 hereto
with a copy to: Sidley & Austin
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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If to Parent or
Acquisition Company: Chartwell Investments II LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to: Akin, Gump, Strauss, Xxxxx
& Xxxx, L.L.P.
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Company: Xxxx Sports Corp.
0000 Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to: Sidley & Austin
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
6.6 Severability. Whenever possible, each provision or
portion of any provision of this Agreement and the Proxy will be interpreted in
such manner as to be effective and valid under applicable law but if any
provision or portion of any provision of this Agreement or the Proxy is held to
be invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or portion of any provision in such jurisdiction,
and this Agreement and the Proxy will be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision or
portion of any provision had never been contained herein.
6.7 Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement or the Proxy will cause the other parties to sustain
damages for which it would not have
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an adequate remedy at law for money damages, and therefore each of the parties
hereto agrees that in the event of any such breach the aggrieved parties shall
be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which they may be entitled, at law or in equity.
6.8 Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or the Proxy or otherwise available in respect
hereof at law or in equity shall be cumulative and not alternative, and the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
6.9 No Waiver. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or the Proxy
or otherwise available in respect hereof at law or in equity, or to insist upon
compliance by any other party hereto with its obligations hereunder or
thereunder, and any custom or practice of the parties at variance with the terms
hereof or thereof, shall not constitute a waiver by such party of its right to
exercise any such or other right, power or remedy or to demand such compliance.
6.10 No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto.
6.11 Governing Law. This Agreement and the Proxy shall be
governed and construed in accordance with the laws of the State of Delaware,
without giving effect to the principles of conflicts of law thereof.
6.12 Jurisdiction. Each party hereby irrevocably submits
to the exclusive jurisdiction of the United States District Court for the
District of Delaware or any court of the State of Delaware located in the City
of Wilmington in any action, suit or proceeding arising in connection with this
Agreement or the Proxy, and agrees that any such action, suit or proceeding
shall be brought only in such court (and waives any objection based on forum non
conveniens or any other objection to venue therein); provided, however, that
such consent to jurisdiction is solely for the purpose referred to in this
Section 6.12 and shall not be deemed to be a general submission to the
jurisdiction of said Courts or in the State of Delaware other than for such
purposes.
6.13 Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
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6.14 Counterparts; Effectiveness. This Agreement may be
executed in counterparts, each of which shall be deemed to be an original, but
all of which, taken together, shall constitute one and the same Agreement.
Notwithstanding the foregoing, this Agreement shall not be effective as to any
Stockholder until executed by all parties hereto.
6.15 Termination. This Agreement will automatically
terminate upon the termination of the Merger Agreement for any reason (the date
of such termination being referred to herein as the "TERMINATION DATE").
6.16 Irrevocable Proxy. Each Stockholder acknowledges
that, concurrently with the execution of this Agreement, it has executed and
delivered to Acquisition Company an Irrevocable Proxy, the form of which is
attached hereto as Exhibit A hereto (the "PROXY").
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
"PARENT" XXXX SPORTS HOLDINGS, L.L.C.
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
---------------------------------
Title: Manager
---------------------------------
"ACQUISITION COMPANY" ANDSONICA ACQUISITION CORP.
By: /s/ Xxxxxxx Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx
----------------------------
Title: Vice President
---------------------------
"COMPANY" XXXX SPORTS CORP.
By: /s/ Xxxxxxx X Xxxxxx
------------------------------
Name: Xxxxxxx X Xxxxxx
----------------------------
Title: Exec. VP
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"STOCKHOLDERS" BRENTWOOD ASSOCIATES BUYOUT
FUND II, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
----------------------------
Title: General Partner
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CHARLESBANK XXXX SPORTS
HOLDINGS, LIMITED PARTNERSHIP
By: /s/ Xxx X. Xxxxxx
------------------------------
Name: Xxx X. Xxxxxx
----------------------------
Title: Managing Directors
---------------------------
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
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CHARLESBANK COINVESTMENT
PARTNERS, L.L.C.
By: /s/ Xxx X. Xxxxxx
------------------------------
Name: Xxx X. Xxxxxx
----------------------------
Title: Managing Director
---------------------------
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
----------------------------
Title: Managing Director
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