STOCKHOLDERS' AGREEMENT
AGREEMENT, dated as of April 11, 1997, by and among SLM
International, Inc., a Delaware corporation (the "Corporation"), and those
persons set forth on Schedule A annexed hereto.
W I T N E S S E T H :
WHEREAS, the Corporation and certain of its Subsidiaries (as defined
herein) filed voluntary petitions for relief under chapter 11 of the Bankruptcy
Code on or about October 24, 1995; and
WHEREAS, the First Amended Joint Chapter 11 Plan (as Modified) of
the Corporation and such Subsidiaries was confirmed by the United States
Bankruptcy Court for the District of Delaware on or about January 23, 1997 (such
Plan, as further modified or amended from time to time after such date, the
"Plan"), and is to be consummated on the date hereof; and
WHEREAS, on the date hereof (i) the Corporation will distribute to
the Insurance Companies and Wellspring (each, as defined herein) certain shares
of its Common Stock, par value $.01 (the "Stock"), (ii) Wellspring will purchase
2,470,000 shares of Stock from the Lenders (as defined in the Plan), and (iii)
Wellspring will purchase certain shares of Stock from the Corporation in
connection with its funding of the Cash Option (as defined in the Plan); and
WHEREAS, the Insurance Companies and Wellspring may receive
additional shares of Stock upon the resolution of Disputed Claims (as defined in
the Plan); and
WHEREAS, the Corporation is authorized to issue a total of
15,000,000 shares of Stock; and
WHEREAS, as of the date hereof each Stockholder is the record and
beneficial owner of the numbers of shares of Stock set forth opposite the name
of such Stockholder on Schedule A hereto; and
WHEREAS, the parties desire to enter into an agreement with respect
to the management of the Corporation, certain transfer rights in respect of
certain shares of Stock and certain other matters.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, agreements, representations and warranties herein contained, the
parties hereto, intending to be legally bound, covenant and agree as follows:
1. Definitions. (a) As used in this Agreement, the following terms
shall have the following meanings:
"Acquired Shares" means any shares of Stock acquired by Wellspring
from the Corporation within six months after the Effective Date pursuant to
Wellspring's funding of the Cash Option (as defined in the Plan); provided,
however, that such shares shall be deemed not to be Acquired Shares if
Wellspring does not notify the other Stockholders of the acquisition of such
shares within ten days of such acquisition.
"Affiliate" of any specified Person means any other Person directly
or indirectly Controlling or Controlled by or under direct or indirect common
Control with such specified Person.
"Agreement" means this Stockholders Agreement, together with all
Schedules and Exhibits hereto, as the same may be amended, supplemented or
modified in accordance with the terms hereof from time to time.
"Control" (including, with correlative meanings, the terms
"controlling," "controlled by," and "under common control with"), as used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities or by contract or
otherwise.
"Effective Date" means the date of this Agreement.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government or any other regulatory authority.
"Initial Period" means the period commencing on the Effective Date
and terminating on the earliest to occur of (i) June 30, 1998, (ii) the date on
which Wellspring no longer owns beneficially and of record at least 70 percent
of the number of shares of Stock set forth opposite the name of Wellspring
Acquisition on Schedule A, (iii) the date on which the Insurance Companies
collectively no longer own beneficially and of record at least 70 percent of the
collective number of shares of Stock set forth opposite the names of the
Insurance Companies on Schedule A, and (iv) the date of consummation of a bona
fide initial public offering of the Stock by the Corporation under the
Securities Act.
" Insurance Companies" means, collectively, The Equitable Life
Assurance Society of the United States, The Northwest Mutual Life Insurance
Company, Phoenix Home Life Mutual Insurance Company, GE Capital Assurance
Company, Business Men's Assurance Company and Indianapolis Life Insurance
Company, together with each Insurance Company's Affiliates that own Stock and
that have become parties to this Agreement by executing and delivering to the
other parties hereto a copy of this Agreement.
"Insurance Company Director" means any individual nominated by the
Insurance Company Majority to serve on the Board of Directors of the Corporation
or any Subsidiary of the Corporation.
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"Insurance Company Majority" means, as of the date of determination,
the holders of a majority of the shares of Stock then held by the Insurance
Companies.
"Maska" means Maska, U.S., Inc., a Vermont corporation.
"Permitted Debt" means indebtedness under (i) that certain Senior
Secured Note Indenture, dated as of even date herewith, among the Corporation,
as issuer, the guarantors named therein, as guarantors, and The Bank of New
York, as Trustee, as such Secured Note Indenture exists on the date hereof,
including, without limitation, the payment of interest in kind, as provided
therein, (ii) that certain Credit Agreement, dated as of even date herewith,
among the Corporation and certain of its Subsidiaries, as borrowers, the lenders
referred to therein and The Chase Manhattan Bank, as agent, as such Credit
Agreement exists on the date hereof, or (iii) that certain Credit Agreement,
dated as of even date herewith, among ▇▇▇▇▇ ▇▇▇▇▇, #▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Inc., St.
▇▇▇▇▇▇▇▇ Manufacturing Canada Inc./Manufactures St. Laurent Canada Inc. and The
Chase Manhattan Bank of Canada, as such Credit Agreement exists on the date
hereof.
"Person" means any individual, company, corporation, partnership,
limited liability company, trust, division, Governmental Authority or other
entity.
"Qualifying Stockholder" means, at any time, any Stockholder that,
together with the other members of any Group (as that term is used in Rule 13d-5
under the Exchange Act of 1934) of which such Stockholder is a member, then owns
more than 260,000 shares of Stock.
"Requirement of Law", as used with respect to any Person, means the
articles or certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, statute, treaty, rule or
regulation, order or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property, or to which such Person or any of its property is
subject.
"Related Group" of any Affiliate means such Affiliate and all
Affiliates (other than the Corporation and Subsidiaries of the Corporation) of
such Affiliate.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Sport Maska" means Sport Maska Inc., a Canadian corporation.
"Stockholder" means each Insurance Company and Wellspring, and each
Affiliate of any Insurance Company or Wellspring that owns any Stock and that
has become a party to this Agreement by executing and delivering to the other
parties hereto a copy of this Agreement.
"Subsequent Period" means the period commencing upon the termination
of the Initial Period and terminating on the Termination Date.
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"Subsidiary", as used with respect to any Person, means any entity
(whether now existing or hereafter formed or acquired) of which shares of each
class of capital stock having ordinary voting power (other than capital stock
having such power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such entity are at the
time owned by such Person or by one or more Subsidiaries of such Person or by
such Person and one or more Subsidiaries of such Person.
"Termination Date" means the earliest of (i) the first date on which
either the Insurance Companies collectively or Wellspring owns less than 20
percent of the total number of shares of Stock issued and outstanding on such
date, (ii) the date of the consummation of a bona fide initial public offering
of the Stock by the Corporation under the Securities Act, and (iii) such time as
all of the parties hereto elect in a written agreement to terminate this
Agreement.
"Wellspring" means Wellspring Acquisition, together with the
Affiliates of Wellspring that own Stock and that have become parties to this
Agreement by executing and delivering to the other parties hereto a copy of this
Agreement.
"Wellspring Acquisition" means WS Acquisition, L.L.C., a New York
limited liability company.
"Wellspring Director" means any individual nominated by Wellspring
Acquisition to serve on the Board of Directors of the Corporation or any
Subsidiary of the Corporation.
(b) Any time this Agreement refers to any number or percentage of
shares of Stock, such number or percentage of shares shall be adjusted to give
effect to all stock splits, stock dividends, stock combinations,
recapitalizations and like occurrences.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
Section, schedule and exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to the singular and plural forms of such terms. Whenever the pronouns
"it" or "its" are used herein, they shall also be deemed to mean "he" and/or
"she" or "his" and/or "hers" whenever applicable.
(e) The section headings contained herein are for the purposes of
convenience only and are not intended to define or limit the contents of such
sections.
2. Legend on Certificates; Transfer.
(a) For so long as this Agreement remains in effect, the following
statement shall be inscribed on all certificates representing shares of Stock
owned by any Stockholder (or any certificates representing shares of Stock
received with respect thereto):
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"THE STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO
A CERTAIN STOCKHOLDERS' AGREEMENT DATED APRIL 11, 1997,
AND ANY AMENDMENTS THERETO, A COPY OF WHICH IS ON FILE
AT THE PRINCIPAL OFFICE OF THE CORPORATION."
The Corporation shall remove the foregoing legend upon transfer of shares of
Stock to a Person other than a Stockholder in a transaction that was not
prohibited by, and did not otherwise violate, the terms of this Agreement.
Unless it has notice to the contrary, the Corporation shall be entitled to, and
shall, rely on a certificate of such transferring Stockholder in connection with
the foregoing conditions of legend removal.
(b) No Stockholder shall sell, assign, transfer or otherwise dispose
of any of shares of Stock to an Affiliate of such Stockholder unless such
Affiliate becomes a party to this Agreement by executing and delivering to the
other parties hereto a copy of this Agreement. Any sale, assignment, transfer or
other disposition of any shares of Stock subject to this Agreement not in
accordance with the terms of this Agreement shall be void and of no effect, and
the Corporation shall not give effect to such purported sale, assignment,
transfer or other disposition and shall not recognize the purported transferee
as the holder of such shares of Stock.
3. Term of Agreement. This Agreement shall terminate on the
Termination Date.
4. Tag Along Rights.
(a) If at any time
(i) Wellspring agrees to sell, assign, transfer or otherwise
dispose of (each, a "Transfer") an amount of shares of Stock equal
to or exceeding the sum of (x) 2,555,414 shares of Stock plus (y)
80% of the Acquired Shares (such sum, the "80% Amount") in one or a
series of related transactions to any Person or Persons other than
any Affiliate of Wellspring that becomes a party to this Agreement
as provided herein (such Person or Persons, a "Transferee"), or
(ii) Wellspring agrees to Transfer an amount of shares of
Stock equal to or exceeding the sum of (x) 1,916,561 shares of Stock
plus (y) 60% of the Acquired Shares, but less than the 80% Amount,
in one or a series of related transactions to any Transferee,
wherein immediately following such transaction(s) Wellspring would
own at least an amount of shares of Stock equal to or exceeding the
difference between the 80% Amount and the amount of shares to be
transferred in such transaction(s) (the amount of shares of Stock
equal to such difference being hereinafter referred to as the
"Remaining Shares"), and in connection with such transaction(s),
Wellspring would enter into a voting agreement with such Transferee
with respect to a number of shares of Stock equal to or exceeding
the Remaining Shares (including, without limitation, any agreement
to vote for
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directors of such Transferee or to vote at the direction of such
Transferee) or otherwise would agree to sell to such Transferee or
any Affiliate of such Transferee a number of shares of Stock equal
to or exceeding the Remaining Shares or would grant or agree to
grant to such Transferee or any Affiliate of such Transferee an
option to purchase or otherwise acquire a number of shares of Stock
equal to or exceeding the Remaining Shares, or do any combination of
the foregoing in respect of such number of shares of Stock, then,
prior to any such Transfer, Wellspring shall promptly (and in any
event at least 15 business days prior to the closing date thereof),
provide each other Stockholder with written notice of the proposed
Transfer (the "Transfer Notice") containing (i) the name and address
of the proposed Transferee, (ii) the total number of shares of Stock
then owned by Wellspring, (iii) the number of shares of Stock to be
Transferred by Wellspring, the purchase price therefor and the other
terms and conditions of payment, and (iv) the closing date for the
proposed Transfer (including when available, a copy of any purchase
agreement related thereto); provided, however, that none of the
provisions of this Section 4 shall apply to any Transfer of Stock
from Wellspring to any Affiliate of Wellspring that becomes a party
to this Agreement by executing and delivering to the other parties
hereto a copy of this Agreement.
(b) Any Stockholder (each, a "Participating Stockholder") that
wishes to participate in such Transfer shall notify Wellspring by written notice
(the "Tag-Along Notice") on or before the expiration of 10 business days
following receipt of the Transfer Notice that such Participating Stockholder
desires to Transfer to the proposed Transferee a portion of its shares of Stock
on the same terms and conditions set forth in the Transfer Notice. The Tag-Along
Notice shall specify the number of shares of Stock such Participating
Stockholder desires to Transfer (the "Tag-Along Amount"). The maximum number of
shares of Stock that each such Participating Stockholder separately shall be
entitled to Transfer hereunder shall be determined by multiplying the number of
shares of Stock held by such Participating Stockholder at the time of the
Transfer Notice by a fraction, the numerator of which is the number of shares of
Stock proposed to be Transferred to the Transferee by Wellspring and the
denominator of which is the number of shares of Stock then owned by Wellspring.
If no Stockholder provides Wellspring with a Tag-Along Notice within the period
specified above, Wellspring shall be free to consummate the sale of Stock to the
Transferee in the amount and at not more than the purchase price set forth in
the Transfer Notice and on substantially the same other terms and conditions set
forth in the Transfer Notice. If there is any Participating Stockholder(s),
Wellspring may not effect such Transfer unless, at the same time, the Transferee
shall purchase the Tag-Along Amount from each such Participating Stockholder
(or, subject to the terms of subsection (c) below, the Reduced Tag-Along Amount
(as defined therein)) on the same terms and conditions as set forth in the
Transfer Notice.
(c) If the sum (the "Aggregate Shares Offered") of (i) the number of
shares of Stock proposed to be Transferred to the Transferee by Wellspring and
(ii) the aggregate Tag- Along Amounts for all Participating Stockholders exceeds
the number of shares of Stock that such Transferee is willing to purchase, then
the Tag-Along Amount of each Participating
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Stockholder shall be reduced to a number of shares of Stock (the "Reduced
Tag-Along Amount") equal to the product of the aggregate number of shares of
Stock which the Transferee is willing to purchase and a fraction, the numerator
of which is the Tag-Along Amount with respect to such Person and the denominator
of which is the Aggregate Shares Offered, and Wellspring shall Transfer only
that number of shares of Stock equal to the number of shares of Stock which the
Transferee is willing to purchase minus the aggregate Reduced Tag-Along Amounts
for all Participating Stockholders (the "Wellspring Reduced Amount").
(d) Any representation or indemnity provided by a Participating
Stockholder to the Transferee in a purchase agreement relating to such Transfer
will relate only to the shares of Stock Transferred by it. Any representation or
indemnity provided to the Transferee by Wellspring will relate only to the
shares of Stock Transferred by it.
(e) The Corporation shall, upon request by any Participating
Stockholder, issue to such Participating Stockholder one or more stock
certificates registered in the names and in the denominations (aggregating in a
number equal to the original denomination) requested by such Participating
Stockholder, to facilitate any partial sale of shares of Stock pursuant to this
Section 4.
(f) To the extent that any prospective Transferee is unwilling or
otherwise refuses to purchase Stock as provided in this Section 4 from any
Participating Stockholder (other than because such Participating Stockholder
refuses to sell such Stock on the same terms and conditions and on the same
closing date set forth in the relevant Transfer Notice), Wellspring shall not
Transfer to such prospective Transferee any Stock, unless, simultaneously with
such Transfer, Wellspring shall purchase such Stock from such Participating
Stockholder (or, subject to the terms of subsection (c) above, such
Participating Stockholder's Reduced Tag Along Amount) on the same terms and
conditions specified in the Transfer Notice.
(g) Subject to the rights of each Participating Stockholder,
Wellspring may, not later than sixty (60) days following delivery to the
Stockholders of the Transfer Notice, conclude a Transfer of Stock covered by the
Transfer Notice at not more than the purchase price set forth in the Transfer
Notice and on substantially the same other terms and conditions described in the
Transfer Notice. Any proposed Transfer on terms and conditions more favorable to
the Transferee than those described in the Transfer Notice, as well as any
proposed Transfer of any Stock by Wellspring more than sixty (60) days following
delivery to the Stockholders of the Transfer Notice, shall again be subject to
the tag-along rights of the Stockholders and shall require compliance by
Wellspring with the procedures described in this Section 4.
5. Covenants of the Corporation.
(a) Upon the request of any Stockholder, the Corporation shall
notify such Stockholder of each transfer of Stock that the Corporation has
registered on its books and afford such Stockholder access to its stock record
books. The Corporation shall, to the extent it has knowledge of the occurrence
thereof, notify each Stockholder promptly upon (i) the termination
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of the Initial Period (other than by reason of the occurrence of June 30, 1998)
and (ii) the occurrence of the Termination Date.
(b) The Corporation shall permit each Stockholder, at such
Stockholder's expense, to examine the Corporation's books and records and to
discuss the Corporation's affairs, finances and accounts with its officers, all
at such reasonable times as may be requested by such Stockholder. Upon the
request of any Qualifying Stockholder, the Corporation shall use its best
efforts to provide such Qualifying Stockholder with (x) notice of each meeting
of the board of directors of the Corporation and a copy of the agenda relating
thereto, (y) the right to attend or otherwise observe, at the expense of such
Qualifying Stockholder, each such meeting, and (z) copies of all documents,
reports, information and other material distributed at each such meeting or that
are customarily available to members of the board of directors of the
Corporation, including, without limitation, copies of minutes, written consents,
other information related to such meetings and reports of what occurred at such
meetings; provided, however, that the failure of the Corporation to provide any
of the foregoing shall not affect any action taken by the Corporation or its
board of directors. Notwithstanding the foregoing, no Stockholder, and no
Affiliate of any Stockholder, shall disclose or divulge to any Person, or use or
suffer the use by any third party for any purpose, other than as permitted
hereunder or required in accordance with the terms of this Agreement, directly
or indirectly, for its own benefit or the benefit of any Person, any
confidential information of, or any confidential information obtained from or
through, the Corporation. The commitments hereunder with respect to confidential
information covered hereby shall not extend to any part of such confidential
information which (i) was known prior to disclosure by the other party; (ii) was
known or available to the public prior to disclosure by the other party; (iii)
becomes known or available to the public subsequent to disclosure by the other
party through no wrongful act of the party receiving the confidential
information; or (iv) was disclosed to the receiving party at any time by a third
party (other than an Affiliate of the receiving party) having a bona fide right
to disclose such information to the receiving party. Any party shall be
permitted to disclose such confidential information to a Governmental Authority
to the extent required by applicable laws and regulations. The provisions of
this Section shall survive for one year any termination of this Agreement.
(c) The Corporation shall cause each of its Subsidiaries to comply
with each provision of this Agreement that by its terms is applicable to such
Subsidiaries.
6. Management of the Corporation.
(a) During the Initial Period, the Board of Directors of the
Corporation shall consist of five directors, including two Wellspring Directors,
two Insurance Company Directors and the chief executive officer of the
Corporation. Initially, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall be the
Wellspring Directors; ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ shall be the Insurance
Company Directors; and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ shall be the Chief Executive Officer
of the Corporation.
(b) During the Subsequent Period, the Board of Directors of the
Corporation shall initially consist of five directors, but the number of
directors may be increased with the
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consent of Wellspring Acquisition and the Insurance Company Majority, which
consent shall not be unreasonably withheld. The Board of Directors of the
Corporation during the Subsequent Period shall include at least one Wellspring
Director and one Insurance Company Director.
(c) At each annual or special meeting, or in any consent in writing
in lieu of a meeting, for the election of directors of the Corporation,
Wellspring Acquisition shall designate the Wellspring Director(s) and the
Insurance Company Majority shall designate the Insurance Company Director(s),
and each Stockholder shall vote its shares of Stock to elect the Wellspring
Directors, the Insurance Company Directors and, during the Initial Period, the
Chief Executive Officer of the Corporation, as provided in subsections (a) and
(b) above.
(d) Immediately following the end of the Initial Period, (x)
Wellspring Acquisition shall identify by notice to the other Stockholders one of
the two Wellspring Directors then in office who shall cease to be a Wellspring
Director, but who shall continue to serve as director until removed or until his
successor is elected and qualified, and (y) the Insurance Company Majority shall
identify by notice to the other Stockholders one of the two Insurance Directors
then in office who shall cease to be an Insurance Company Director, but who
shall continue to serve as director until removed or until his successor is
elected and qualified.
(e) The Corporation's Certificate of Incorporation and Bylaws shall
at all times permit removal of directors with or without cause by vote of its
stockholders. No Stockholder shall vote or consent in writing to remove a
Wellspring Director without cause without the prior written consent of
Wellspring Acquisition, and no Stockholder shall vote or consent in writing to
remove an Insurance Company Director without cause without the prior written
consent of the Insurance Company Majority (other than with respect to the
removal of such Directors as contemplated by Section 6(d) hereof). Upon the
written request of Wellspring Acquisition, each Stockholder shall vote or
consent in writing to remove any Wellspring Director then in office, and upon
the written request of the Insurance Company Majority, each Stockholder shall
vote or consent in writing to remove any Insurance Company Director then in
office.
(f) If at any time there shall occur any vacancy in the office of
director held by a Wellspring Director, Wellspring Acquisition shall designate a
successor Wellspring Director who shall be elected by the Board of Directors to
fill such vacancy. If there shall occur any vacancy in the office of director
held by an Insurance Company Director, the Insurance Company Majority shall
designate a successor Insurance Company Director who shall be elected by the
Board of Directors to fill such vacancy. In the event that the Board of
Directors does not fill a vacancy in accordance with the terms of this
subsection (f), then, at the request of any Stockholder, the Stockholders shall
vote to (i) remove the Director elected by the Board of Directors to fill such
vacancy and (ii) replace such Director with the Wellspring Director or the
Insurance Company Director, as the case may be, that should have been elected by
the Board.
(g) At all times during the Initial Period, each committee of the
Board of Directors of the Corporation, each board of directors of any Subsidiary
of the Corporation that is incorporated in the United States and each committee
of the board of directors of any such
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Subsidiary shall include at least one Wellspring Director and one Insurance
Company Director. At all times during the Subsequent Period, the Corporation
shall cause each committee of the Board of Directors of the Corporation and of
each Subsidiary of the Corporation to provide each Wellspring Director and each
Insurance Company Director who is not a member thereof with (x) notice of each
meeting of such committee and a copy of the agenda relating thereto, (y) the
right, if any such director requests, to attend or otherwise observe, at the
Corporation's expense, each such meeting, and (z) if requested, copies of all
documents, reports, information and other material distributed at each such
meeting or that are customarily available to members of the relevant committee,
including, without limitation, copies of minutes, written consents, other
information related to such meetings and reports of what occurred at such
meetings.
7. Consent Required for Certain Actions.
(a) Notwithstanding anything to the contrary set forth in this
Agreement or in the charter or by-laws of the Corporation or any Subsidiary of
the Corporation, the following actions of the Corporation or of any Subsidiary
of the Corporation shall not be undertaken, and if undertaken shall be void and
without effect, without the approval of the directors of the Corporation as
provided in subsection (b) below.
(i) the sale of the Corporation pursuant to or in connection
with a merger, consolidation or recapitalization (including, without
limitation, any merger, consolidation or recapitalization in which the
holders of Stock immediately before such merger, consolidation or
recapitalization do not own at least 50% of the outstanding voting stock
of the surviving corporation);
(ii) the issuance or sale by the Corporation of shares of its
capital stock (or rights, options, warrants or other securities
convertible into or exchangeable for its capital stock) in one or a series
of related transactions to one or more Persons, if immediately following
such issuance or sale such Persons or any Group (as that term is used in
Rule 13d-5 under the Exchange Act of 1934) of which such Persons are a
member would own shares of capital stock (when added to any shares of
capital stock which such Persons or Group have the right to acquire upon
the exercise, conversion or exchange of any rights, options, warrants or
other securities owned by them) representing more than 50% of the voting
stock of the Corporation (or the surviving corporation) then outstanding;
(iii) the voluntary or involuntary sale, assignment, transfer,
other disposition or issuance by the Corporation and/or any Subsidiary of
the Corporation (including, without limitation, Maska or Sport Maska) of
any capital stock (or rights, options, warrants or other securities
convertible into or exchangeable for capital stock) of Maska or Sport
Maska, if immediately following any such sale, assignment, transfer,
disposition or issuance the Corporation and its wholly-owned Subsidiaries,
collectively, own less than 50.1% of the outstanding equity or voting
stock (treating as outstanding for this purpose any shares of capital
stock issuable upon the exercise, conversion or
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exchange of any rights, options, warrants or other securities owned by any
Person other than the Corporation or a Subsidiary of the Corporation) of
Maska or Sport Maska;
(iv) the voluntary or involuntary sale, lease, assignment,
transfer or other disposition by the Corporation or any Subsidiary of the
Corporation of all or substantially all of its property or assets;
(v) the elimination of any material line of business of the
Corporation or any Subsidiary of the Corporation;
(vi) any termination, dissolution or liquidation of the
Corporation (including pursuant to any bankruptcy, insolvency or similar
law or statute) or the declaration of any dividend in contemplation of any
such termination, dissolution or liquidation;
(vii) the voluntary filing or commencement by the Corporation
or any Subsidiary of the Corporation of any proceeding under any
bankruptcy, insolvency or similar law or statute;
(viii) any amendment of or change to the certificate of
incorporation or by-laws of the Corporation or any Subsidiary of the
Corporation;
(ix) any issuance or sale of capital stock or other securities
of the Corporation, Maska or Sport Maska, including pursuant to a stock
split or bonus, other than the issuance by the Corporation to its senior
management of (i) options to acquire no more than 975,000 shares of Stock
in the aggregate and (ii) Stock upon the exercise of such options;
(x) any transaction with any Affiliate of the Corporation or
its Subsidiaries, including, without limitation payment of any management
fee or other compensation to any such Affiliate, other than any such
transaction (i) that is entered into by the Corporation or such Subsidiary
in the ordinary course of its business not inconsistent with past
practice, (ii) that is on terms that are fair and reasonable and no less
favorable to the Corporation or such Subsidiary than the Corporation or
such Subsidiary would obtain in a comparable arm's-length transaction with
a Person not an Affiliate, and (iii) to the extent the value provided to
or on behalf of such Affiliate's Related Group by the Corporation and/or
its Subsidiaries in all transactions in the relevant fiscal year has not,
after taking into account the transaction in question, exceeded, $200,000;
(xi) the establishment or adoption of annual budgets
(including operating and capital expenditure budgets) or operating plans;
(xii) any creation, incurrence or assumption by the
Corporation or any Subsidiary of the Corporation of financial indebtedness
(including capitalized lease obligations and purchase money debt, but
excluding Permitted Debt) in excess of $5
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million of such indebtedness by the Corporation and all of its
Subsidiaries in the aggregate in any fiscal year;
(xiii) any purchase or acquisition by the Corporation or any
Subsidiary of the Corporation, other than in the ordinary course of
business, of any property or assets (including, without limitation, the
acquisition of any business or entity) in excess of $5 million by the
Corporation and all of its Subsidiaries in the aggregate in any fiscal
year;
(xiv) the making of any capital expenditure by the Corporation
or any Subsidiary of the Corporation in excess of $5 million of capital
expenditures by the Corporation and all of its Subsidiaries in the
aggregate in any fiscal year; and
(xv) any retention, appointment or termination of the chief
executive officer of the Corporation and the determination of his
compensation and terms of employment.
(b) The approval of each Wellspring Director and each Insurance
Company Director then in office shall be required --
(i) during the Initial Period, for all actions specified in
subsection (a) above; and
(ii) during the Subsequent Period, for all actions specified
in clauses (i) - (vi), (viii) (to the extent any charter or by-law
amendment would be inconsistent with the provisions of this subsection
(b)(ii) or Section 6 hereof) and (x) of subsection (a) above.
8. Representations and Warranties. Each of the Stockholders and the
Corporation represents and warrants on behalf of itself to the other parties
hereto that:
(a) Authority. It has all requisite power to enter into this
Agreement and to consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by it, has been effectively authorized by
all necessary action and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, except as enforceability
may be subject to the application of general equitable principles and to
bankruptcy, insolvency, moratorium or other similar laws affecting creditors'
rights generally.
(b) Agreements Not in Breach of Other Instruments. The execution and
delivery of this Agreement, the consummation of the transactions contemplated
hereby and the fulfillment of the terms hereof will not result in a breach of
any of the terms or provisions of, or constitute a default under, or conflict
with (x) any agreement, indenture or other instrument to which it is a party or
by which it is bound, (y) any judgment, decree, order or award of any court,
governmental body, Governmental Authority or arbitrator by which it is bound or
(z) any Requirement of Law applicable to it.
-12-
(c) Regulatory Approvals. Other than the approval of the Bankruptcy
Court, which has been obtained, there are no consents, approvals, authorizations
or other requirements prescribed by any applicable Requirement of Law that must
be obtained or satisfied in connection with its execution, delivery and
performance of this Agreement.
(d) No Legal Bar. There is no suit, action or proceeding pending or,
to its each knowledge, threatened against it that questions the validity of this
Agreement, any of the transactions contemplated hereby or any action which has
been taken by any of the parties in connection herewith or in connection with
any of the transactions contemplated hereby or that seeks to enjoin the
consummation thereof.
(e) Organization and Authority. It is a company duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization, has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby.
9. Notices. All notices, demands, requests, consents and
communications required or permitted to be given under any of the provisions of
this Agreement shall be in writing and shall be delivered either personally, by
certified or registered mail postage prepaid, return receipt requested, or by
overnight courier service, in each case to the addresses set forth on Schedule A
hereto. The parties may designate in writing from time to time other and
additional places to which notices should be sent. All notices, demands,
requests, consents and communications shall be deemed to have been given (a) at
the time of actual delivery thereof, (b) if given by certified or registered
mail, five (5) Business Days after being deposited in the United States mail,
postage prepaid and properly addressed, or (c) if given by overnight courier,
the next Business Day after being sent, charges prepaid and properly addressed.
In addition, copies of all notices by any party hereto shall be sent by the
Corporation to the directors of the Corporation; provided, however, that the
inadvertent or good faith failure or delay in sending such copies shall not
affect the efficacy thereof.
10. Specific Performance. The parties hereto understand that they
will be irreparably damaged, and cannot be adequately compensated by monetary
damages, in the event that this Agreement is not specifically enforced.
Accordingly, in the event of a breach or threatened breach of the terms,
covenants and/or conditions of this Agreement by any of the parties hereto, the
other parties shall, in addition to all other remedies, be entitled to an
injunction and other equitable remedies to prevent breaches by the other parties
hereto of this Agreement, and to enforce specifically the terms and provisions
hereof in any court of the United States or any state thereof having
jurisdiction, all without showing any actual damage, this being in addition to
any other remedy to which such parties may be entitled at law or in equity.
-13-
11. Miscellaneous.
(a) The Stockholders shall vote their respective shares of Stock and
take all such other actions as shall be necessary to give effect to, and to
cause the Corporation to comply with, the terms of this Agreement.
(b) This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof. This Agreement may be modified or
amended by a written agreement signed by all of the parties hereto.
(c) No waiver of any breach or default hereunder shall be considered
valid unless in writing, and no such waiver shall be deemed a waiver of any
subsequent breach or default of the same or similar nature.
(d) If any provision of this Agreement shall be held invalid or
unenforceable, such invalidity or unenforceability shall attach only to such
provision and shall not in any manner affect or render invalid or unenforceable
any other severable provision of this Agreement, and this Agreement shall be
carried out as if any such invalid or unenforceable provision were not contained
herein.
(e) Except as expressly provided herein, the rights and obligations
of the parties under this Agreement may not be assigned or otherwise transferred
to any other Person, except with the prior written consent of the other parties
hereto. Except as expressly provided herein, this Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and permitted assigns.
Any Affiliate of Wellspring to whom any Stock is transferred and that has
executed and delivered to the other parties hereto a copy of this Agreement
shall be a permitted assign of Wellspring, and such Affiliate shall be bound by
all of the provisions of this Agreement. Any Affiliate of an Insurance Company
to whom any Stock is transferred and that has executed and delivered to the
other parties hereto a copy of this Agreement shall be a permitted assign of
such Insurance Company, and such Affiliate shall be bound by all of the
provisions of this Agreement. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
(f) Each party hereto shall cooperate and shall take such further
action and shall execute and deliver such further documents as may be reasonably
requested by any other party in order to carry out the provisions and purposes
of this Agreement.
(g) This Agreement may be executed in one or more counterparts, all
of which taken together shall be deemed one original.
(h) This Agreement shall be governed and construed in accordance
with the laws of the State of Delaware, without regard to the principles of
conflict of laws thereof. Any legal action or proceeding under, arising out of
or in any manner relating to this Agreement, or any other document being entered
into by any Stockholder in connection with the closing on the
-14-
Effective Date at which this Agreement is being entered into, shall be brought
in the federal or state courts in the State of Delaware. Each party hereto
expressly and irrevocably assents and submits to the personal jurisdiction of
all of such courts in any such action or proceeding. Each such party further
irrevocably consents to the service of any complaint, summons, notice or other
process relating to any such action or proceeding by delivery thereof to it
personally by hand, by prepaid overnight courier or by mail at the address
provided herein. Each party expressly and irrevocably waives any claim or
defense in any such action or proceeding based on any alleged lack of personal
jurisdiction, improper venue or forum non conveniens.
-15-
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
as of the day and year first above written.
SLM INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Finance
WS ACQUISITION, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Principal
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Investment Officer
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
PHOENIX HOME LIFE MUTUAL
INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
-16-
GE CAPITAL ASSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BUSINESS MEN'S ASSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President-Securities
INDIANAPOLIS LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President & Chief Investment Officer
-17-
SCHEDULE A
Number of
Stockholders Shares of Stock
------------ ---------------
WS Acquisition, L.L.C. 3,194,268
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Equitable Life Assurance Society 1,253,684
of the United States
c/o Alliance Corporate Finance Group, Inc.
1345 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Northwestern Mutual Life Insurance Company 394,015
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Phoenix Home Life Mutual Insurance Company 358,195
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
GE Capital Assurance Company 286,556
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
-18-
Number of
Stockholders Shares of Stock
------------ ---------------
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Business Men's Assurance Company 179,098
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Indianapolis Life Insurance Company 71,639
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-19-
