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Exhibit 10.21
STOCKHOLDER'S AGREEMENT
This Stockholder's Agreement (this "Agreement") is entered
into as of March 8, 2000 (the "Execution Date") between SPALDING HOLDINGS
CORPORATION, a Delaware corporation (the "Company"), and XXXXX X. XXXXX, Trustee
of the Xxxxx X. Xxxxx Revocable Trust Under Agreement Dated 6/16/82, As Amended
(the "Purchaser") (the Company and the Purchaser being hereinafter collectively
referred to as the "Parties").
WHEREAS, Xx. Xxxxx joined the Company's Board of Directors on
September 10, 1997, and in connection therewith, the Company sold 200,000 shares
of its Common Stock, par value $.01 per share (the "Common Stock") pursuant to a
stockholder's agreement, such agreement dated September 23, 1997 (the "1997
Agreement Date"), and such shares of Common Stock were issued to Purchaser; and
WHEREAS, Xx. Xxxxx continues to serve on the Company's Board
of Directors, and in connection therewith, the Company desires to sell 342,799
shares of its Common Stock to Purchaser (such shares, "Purchase Stock").
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Agreement, the Parties
agree as follows:
1. Purchase of Stock.
(a) Subject to the terms and conditions hereinafter set forth,
the Purchaser hereby subscribes for and shall purchase, and the Company shall
sell to the Purchaser and deliver to the Purchaser the Purchase Stock at a
purchase price of $0.01 per share on March 8, 2000 (the "Purchase Date").
(b) The aggregate price for the Purchase Stock shall be
$3,254.43 (such amount hereinafter sometimes referred to as the "Purchase
Price"). On the Purchase Date, the Purchase Price shall be paid to the Company
by the Purchaser by a certified bank check payable to the order of the Company
in the aggregate amount of the Purchase Price or by wire transfer of immediately
available funds of the aggregate amount of the Purchase Price. On the Purchase
Date, in consideration of receipt of the Purchase Price, the Company will
deliver to the Purchaser a certificate, registered in the Purchaser's name, for
the Purchase Stock, which shall be subject to the terms and conditions
hereinafter set forth.
2. Purchaser's Representations, Warranties and Agreements.
(a) The Purchaser hereby represents and warrants that he is
acquiring the Purchase Stock and at the time of other acquisitions, all other
Stock for investment for his own account and not with a view to, or for resale
in connection with, the distribution or other disposition thereof. The Purchaser
agrees and acknowledges that he will not, directly or indirectly, offer,
transfer, sell, assign, pledge, hypothecate or otherwise dispose of (any such
act
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being herein referred to as a "transfer") any shares of the Stock unless such
transfer complies with Section 3 of this Agreement. Furthermore, if the
Purchaser is an "affiliate" (as defined under Rule 405 of the rules and
regulations promulgated under the Act and as interpreted by the Board of
Directors of the Company) of the Company (an "Affiliate"), the Purchaser agrees
and acknowledges that he will not transfer any shares of the Stock unless (i)
the transfer is pursuant to an effective registration statement under the
Securities Act of 1933, as amended, or the rules and regulations in effect
thereunder (the "Act"), and in compliance with applicable provisions of state
securities laws or (ii) counsel for the Purchaser (which shall be such counsel
acceptable to the Company) shall have furnished the Company with an opinion,
satisfactory in form and substance to the Company, that no such registration is
required because of the availability of an exemption from registration under the
Act. Notwithstanding the foregoing, the Company acknowledges and agrees that any
of the following transfers are deemed to be in compliance with the Act and this
Agreement and no opinion of counsel is required in connection therewith: (x) a
transfer made pursuant to Section 4, 5 or 6 hereof, (y) a transfer upon the
death of the Purchaser to his executors, administrators, testamentary trustees,
legatees or beneficiaries (the "Purchaser's Estate") or a transfer to the
executors, administrators, testamentary trustees, legatees or beneficiaries of a
person who has become a holder of Stock in accordance with the terms of this
Agreement, provided that it is expressly understood that any such transferee
shall be bound by the provisions of this Agreement and (z) a transfer made after
the Purchase Date in compliance with the federal securities laws to a trust or
custodianship the beneficiaries of which may include only the Purchaser, his
spouse or his lineal descendants (a "Purchaser's Trust") or a transfer made
after the third anniversary of the Execution Date to such a trust by a person,
other than the Purchaser, who has become a holder of Stock in accordance with
the terms of this Agreement, provided that such transfer is made expressly
subject to this Agreement and that the transferee agrees in writing to be bound
by the terms and conditions hereof.
(b) During the term of this Agreement, the certificate (or
certificates) representing the Purchase Stock shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE
PROVISIONS OF THE STOCKHOLDER'S AGREEMENT DATED AS OF MARCH 8,
2000 BETWEEN SPALDING HOLDINGS CORPORATION (THE "COMPANY") AND
THE PURCHASER NAMED ON THE FACE HEREOF (A COPY OF WHICH IS ON
FILE WITH THE SECRETARY OF THE COMPANY)."
(c) The Purchaser acknowledges that he has been advised that
(i) the Purchase Stock has been registered on Form S-8 under the Act, (ii) a
restrictive legend in the form heretofore set forth shall be placed on the
certificates representing the Stock and (iii) a notation shall be made in the
appropriate records of the Company indicating that the Stock is subject to
restrictions on transfer and appropriate transfer restrictions will be issued to
the Company's transfer agent with respect to the Stock. If the Purchaser is an
Affiliate, the Purchaser also
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acknowledges that (i) the Stock must be held indefinitely and the Purchaser must
continue to bear the economic risk of the investment in the Stock unless it is
subsequently registered under the Act or an exemption from such registration is
available, (ii) it is not anticipated that there will be any market on an
exchange or a quotation service for the Stock, (iii) when and if shares of the
Stock may be disposed of without registration in reliance on Rule 144 or the
rules and regulations promulgated under the Act, such disposition can be made
only in limited amounts in accordance with the terms and conditions of such
Rule, and (iv) if the Rule 144 exemption is not available, public sale without
registration will require compliance with Regulation A or some other exemption
under the Act.
(d) If any shares of the Purchase Stock are to be disposed of
in accordance with Rule 144 under the Act or otherwise, the Purchaser shall
promptly notify the Company of such intended disposition and shall deliver to
the Company at or prior to the time of such disposition such documentation as
the Company may reasonably request in connection with such sale and, in the case
of a disposition pursuant to Rule 144, shall deliver to the Company an executed
copy of any notice on Form 144 required to be filed with the Securities and
Exchange Commission (the "SEC").
(e) The Purchaser agrees that, if any shares of the capital
stock of the Company are offered to the public pursuant to an effective
registration statement under the Act (other than registration of securities
issued under an employee plan), the Purchaser will not effect any public sale or
distribution of any shares of the Purchase Stock not covered by such
registration statement within 7 days prior to, or within 180 days after, the
effective date of such registration statement, unless otherwise agreed to in
writing by the Company.
(f) The Purchaser represents and warrants that (i) he has
received and reviewed the documents comprising the Prospectus relating to the
Purchase Stock and the documents referred to therein, certain of which documents
set forth the rights, preferences and restrictions relating to the Purchase
Stock and (ii) he has been given the opportunity to obtain any additional
information or documents and to ask questions and receive answers about such
documents, the Company and the business and prospects of the Company which he
deems necessary to evaluate the merits and risks related to his investment in
the Purchase Stock and to verify the information contained in the Prospectus and
the information received as indicated in this Section 2(f)(ii), and he has
relied solely on such information.
(g) The Purchaser further represents and warrants that (i) his
financial condition is such that he can afford to bear the economic risk of
holding the Purchase Stock for an indefinite period of time and has adequate
means for providing for his current needs and personal contingencies, (ii) he
can afford to suffer a complete loss of his investment in the Purchase Stock,
(iii) he understands and has taken cognizance of all risk factors related to the
purchase of the Purchase Stock, including those set forth in the Prospectus
referred to above, and (iv) his knowledge and experience in financial and
business matters are such that he is capable of evaluating the merits and risks
of his purchase of the Purchase Stock as contemplated by this Agreement.
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3. Restriction on Transfer.
Except for transfers permitted by clauses (x), (y) and (z) of
Section 2(a) or a sale of shares of Purchase Stock pursuant to an effective
registration statement under the Act filed by the Company or pursuant to the
Sale Participation Agreement (as defined below), the Purchaser agrees that he
will not transfer any shares of the Purchase Stock at any time prior to the
fifth anniversary of the 1997 Agreement Date. No transfer of any such shares in
violation hereof shall be made or recorded on the books of the Company and any
such transfer shall be void and of no effect.
4. Right of First Refusal.
If at any time after the fifth anniversary of the 1997
Agreement Date and prior to a Public Offering (as defined below), the Purchaser
receives a bona fide offer to purchase any or all of his shares of Purchase
Stock (the "Offer") from a third party (the "Offeror") which the Purchaser
wishes to accept, the Purchaser shall cause the Offer to be reduced to writing
and shall notify the Company in writing of his wish to accept the Offer. The
Purchaser's notice shall contain an irrevocable offer to sell such shares of
Purchase Stock to the Company (in the manner set forth below) at a purchase
price equal to the price contained in, and on the same terms and conditions of,
the Offer, and shall be accompanied by a true copy of the Offer (which shall
identify the Offeror). At any time within 30 days after the date of the receipt
by the Company of the Purchaser's notice, the Company shall have the right and
option to purchase, or to arrange for a third party to purchase, all of the
shares of Purchase Stock covered by the Offer either (i) at the same price and
on the same terms and conditions as the Offer or (ii) if the Offer includes any
consideration other than cash, then at the sole option of the Company, at the
equivalent all cash price, determined in good faith by the Company's Board of
Directors, by delivering a certified bank check or checks in the appropriate
amount (and any such non-cash consideration to be paid) to the Purchaser at the
principal office of the Company against delivery of certificates or other
instruments representing the shares of the Purchase Stock so purchased,
appropriately endorsed by the Purchaser. If at the end of such 30 day period,
the Company has not tendered the purchase price for such shares in the manner
set forth above, the Purchaser may during the succeeding 30 day period sell not
less than all of the shares of Purchase Stock covered by the Offer to the
Offeror at a price and on terms no less favorable to the Purchaser than those
contained in the Offer. Promptly after such sale, the Purchaser shall notify the
Company of the consummation thereof and shall furnish such evidence of the
completion and time of completion of such sale and of the terms thereof as may
reasonably be requested by the Company. If, at the end of 30 days following the
expiration of the 30 day period for the Company to purchase the Purchase Stock,
the Purchaser has not completed the sale of such shares of the Purchase Stock as
aforesaid, all the restrictions on sale, transfer or assignment contained in
this Agreement shall again be in effect with respect to such shares of the
Purchase Stock.
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5. Purchaser's Resale of Purchase Stock to the Company
Upon The Purchaser's Death or Disability.
(a) Except as otherwise provided herein, if at any time prior
to a Public Offering (i) the Purchaser is still a director of the Company, or
had retired as a director of the Company and (ii) the Purchaser either dies or
becomes permanently disabled, then the Purchaser, the Purchaser's Estate or a
Purchaser's Trust, as the case may be, shall have the right, for six months (or
such longer time as determined by the Board of Directors) following the date of
death or permanent disability, to (I) sell to the Company, and the Company shall
be required to purchase, on one occasion, all or any portion of the shares of
Purchase Stock then held by the Purchaser, the Purchaser's Trust and/or the
Purchaser's Estate, as the case may be, at the Section 5 Repurchase Price, as
determined in accordance with Section 7. The Purchaser, the Purchaser's Estate
and/or the Purchaser's Trust, as the case may be, shall send written notice to
the Company of its intention to sell shares of Purchase Stock in exchange for
the payment referred to in the preceding sentence (the "Redemption Notice"). The
completion of the purchase shall take place at the principal office of the
Company on the tenth business day after the giving of the Redemption Notice. The
Section 5 Repurchase Price shall be paid by delivery to the Purchaser, the
Purchaser's Estate or the Purchaser's Trust, as the case may be, of a wire
transfer of immediately available funds or a certified bank check or checks in
the appropriate amount payable to the order of the Purchaser, the Purchaser's
Estate or the Purchaser's Trust, as the case may be, against delivery of
certificates or other instruments representing the Purchase Stock so purchased,
appropriately endorsed or executed by the Purchaser, the Purchaser's Estate or
the Purchaser's Trust, or his or its duly authorized representative. For
purposes of this Agreement, Purchaser shall be deemed to have a "permanent
disability" when the majority of the Board of Directors of the Company shall, in
good faith, so determine.
(b) Notwithstanding anything in Section 5(a) to the contrary
and subject to Section 10, if there exists and is continuing a default or an
event of default on the part of the Company or any subsidiary of the Company
under any loan, guarantee or other agreement under which the Company or any
subsidiary of the Company has borrowed money or if the repurchase referred to in
Section 5(a) would result in a default or an event of default on the part of the
Company or any subsidiary of the Company under any such agreement or if a
repurchase would not be permitted under the Delaware General Corporation Law
(the "DGCL") (or if the Company reincorporates in another state, the business
corporation law of such state) (each such occurrence being an "Event"), the
Company shall not be obligated to repurchase any of the Purchase Stock from the
Purchaser, the Purchaser's Estate or the Purchaser's Trust, as the case may be,
until the first business day which is 10 calendar days after all of the
foregoing Events have ceased to exist (the "Repurchase Eligibility Date");
provided, however, that the number of shares of Purchase Stock subject to
repurchase under this Section 5(b) shall be that number of shares of Purchase
Stock, held by the Purchaser, the Purchaser's Estate or a Purchaser's Trust, as
the case may be, at the time of delivery of a Redemption Notice in accordance
with Section 5(a) hereof; provided, further, that the Repurchase Calculation
Date (as defined herein) shall be determined in accordance with Section 7 as of
the Repurchase Eligibility Date (unless the Section 5 Repurchase Price would be
greater if the Repurchase Calculation Date had been determined as if no Event
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had occurred in which case, solely for purposes of this proviso, the Repurchase
Calculation Date shall be determined as if no Event had occurred).
(c) Notwithstanding any other provision of this Section 5 to
the contrary and subject to Section 10, the Purchaser, the Purchaser's Estate or
the Purchaser's Trust, as the case may be, shall have the right to withdraw any
Redemption Notice which has been pending for 60 or more days and which has
remained unsatisfied because of the provisions of Section 5(b).
6. The Company's Option to Repurchase Purchase Stock of
Purchaser.
(a) If, on or prior to the fifth anniversary of the 1997
Agreement Date, (i) the beneficiaries of a Purchaser's Trust shall include any
person or entity other than the Purchaser, his spouse or his lineal descendants,
or (ii) the Purchaser shall effect a transfer of any of the Purchase Stock other
than as permitted in this Agreement (alternatively, a "Call Event"), the Company
shall have the right to purchase all, but not less than all, of the shares of
the Purchase Stock then held by the Purchaser or a Purchaser's Trust at the
Section 6 Repurchase Price determined in accordance with Section 7 hereof. The
Company shall have a period of 75 days from the date of a Call Event in which to
give notice in writing to the Purchaser of the exercise of such election ("Call
Notice").
(b) The completion of the purchases pursuant to the foregoing
shall take place at the principal office of the Company on the tenth business
day after the giving of notice of the exercise of the option to purchase. The
Section 5 Repurchase Price or the Section 6 Repurchase Price, as the case may
be, shall be paid by delivery to the Purchaser of a wire transfer of immediately
available funds or a certified bank check or checks in the appropriate amount
payable to the order of the Purchaser against delivery of certificates or other
instruments representing the Purchase Stock so purchased, appropriately endorsed
or executed by the Purchaser, the Purchaser's Trust or his or its authorized
representative.
(c) Notwithstanding any other provision of this Section 6 to
the contrary and subject to Section 10, if there exists and is continuing any
Event, the Company shall delay the repurchase of any of the Purchase Stock
(pursuant to a Call Notice given on a timely basis in accordance with Section
6(a) hereof) from the Purchaser, the Purchaser's Estate, or the Purchaser's
Trust, as the case may be, until the Repurchase Eligibility Date; provided,
however, that the number of shares of Purchase Stock subject to repurchase under
this Section 6(c) shall be that number of shares of Purchase Stock and held by
the Purchaser, the Purchaser's Estate or a Purchaser's Trust, as the case may
be, at the time of delivery of a Call Notice in accordance with Section 6(a)
hereof; provided, further, that the Repurchase Calculation Date shall be
determined in accordance with Section 7 based on the Repurchase Eligibility Date
(unless the applicable Repurchase Price would be greater if the Repurchase
Calculation Date had been determined as if no Event had occurred, in which case,
solely for purposes of this proviso, the Repurchase Calculation Date shall be
determined as if no Event had occurred).
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7. Determination of Repurchase Price.
(a) The Section 5 Repurchase Price and the Section 6
Repurchase Price are hereinafter collectively referred to as the "Repurchase
Price." The Repurchase Price shall be calculated on the basis of the unaudited
financial statements of the Company or the Market Price Per Share (as defined in
Section 7(f)) as of the last day of the fiscal quarter preceding the later of
(i) the fiscal quarter in which the event giving rise to the repurchase occurs
and (ii) the fiscal quarter in which the Repurchase Eligibility Date occurs
(hereinafter called the "Repurchase Calculation Date"). The event giving rise to
the repurchase shall be the event set forth in Section 5 or 6 and not the giving
of any notice required pursuant to such sections.
(b) Prior to a Public Offering (as hereinafter defined), the
Section 5 Repurchase Price shall be a per share Repurchase Price equal to $2.00
plus the amount, if any, by which the Book Value Per Share (as defined in
Section 7(d)) as of the Repurchase Calculation Date exceeds $2.00. After a
Public Offering, the Section 5 Repurchase Price shall be a per share Repurchase
Price equal to $2.00 plus the amount, if any, by which the Market Price Per
Share as of the Repurchase Calculation Date exceeds $2.00.
(c) Prior to a Public Offering, the Section 6 Repurchase Price
shall be a per share Repurchase Price equal to the lesser of (i) the Book Value
Per Share (as defined in paragraph (d) below) or (ii) $2.00 plus (x) the
Percentage (as defined below) multiplied by (y) the amount, if any, by which the
Book Value Per Share as of the Repurchase Calculation Date exceeds $2.00. After
a Public Offering, the Section 6 Repurchase Price shall be a per share
Repurchase Price equal to the lesser of (i) Market Price Per Share or (ii) $2.00
plus (a) the Percentage multiplied by (b) the amount, if any, by which the
Market Price Per Share as of the Repurchase Calculation Date exceeds $2.00.
The "Percentage" shall be determined as follows:
Repurchase Calculation Date Percentage
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Purchase Date through and including the third anniversary of the 1997 Agreement 40%
Date
After the third anniversary of the 1997 Agreement Date through and including 60%
the fourth anniversary of the 1997 Agreement Date
After the fourth anniversary of the 1997 Agreement Date through and including 80%
the fifth anniversary of the 1997 Agreement Date
After the fifth anniversary of the 1997 Agreement Date 100%
(d) For purposes of this Agreement, "Book Value Per Share"
shall be the quotient of (a) (i) $250 million plus (ii) the aggregate net income
of the Company from and after September 30, 1996 (as decreased by any net losses
from and after such date) plus (iii) the
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aggregate dollar amount contributed to (or credited to Common Stockholders'
equity of) the Company after September 30, 1996 as equity of the Company
(including consideration to be received upon exercise of any options and other
stock equivalents) plus (iv) to the extent reflected as deductions to Book Value
Per Share in clause (ii) above, or minus, to the extent reflected as additions
to Book Value Per Share in clause (ii) above, unusual or other items recognized
by the Company, if and to the extent determined in the sole discretion of the
Compensation Committee of the Board of Directors of the Company, minus, (v) the
aggregate dollar amount of any dividends paid by the Company after September 30,
1996 divided by (b) the sum of the number of shares of Common Stock then
outstanding and the number of shares of Common Stock issuable upon the exercise
of all outstanding stock options and other rights to acquire Common Stock and
the conversion of all securities convertible into shares of Common Stock. The
calculations set forth in clauses (a)(ii), (a)(iii), (a)(iv) and (a)(v) of the
immediately preceding sentence shall be determined in accordance with generally
accepted accounting principles applied on a basis consistent with any prior
periods as reflected in the consolidated financial statements of the Company.
(e) As used herein the term "Public Offering" shall mean the
sale of shares of Common Stock to the public subsequent to the date hereof
pursuant to a registration statement under the Act which has been declared
effective by the SEC (other than a registration statement on Form S-8 or any
other similar form) which results in an active trading market in the Common
Stock if such a market does not already exist. A "Qualified Public Offering"
shall mean a Public Offering pursuant to an effective registration statement
relating to the sale of shares of the Company Stock held by Strata Associates,
L.P., a Delaware limited partnership and its affiliates; provided, however, that
a "Qualified Public Offering" shall be deemed to have occurred if there has been
a Public Offering and there exists an active trading market in 40% or more of
the Common Stock.
(f) As used herein the term "Market Price Per Share" shall
mean the price per share equal to the average of the last sale price of the
Common Stock on the Repurchase Calculation Date on each exchange on which the
Common Stock may at the time be listed or, if there shall have been no sales on
any of such exchanges on the Repurchase Calculation Date, the average of the
closing bid and asked prices on each such exchange at the end of the Repurchase
Calculation Date or if there is no such bid and asked price on the Repurchase
Calculation Date on the next preceding date when such bid and asked price
occurred or, if the Common Stock shall not be so listed, the average of the
closing sales prices as reported by NASDAQ at the end of the Repurchase
Calculation Date. If the Common Stock is not so listed or reported by NASDAQ,
then the Market Price Per Share shall be the Book Value Per Share.
(g) In determining the Repurchase Price, appropriate and
equitable adjustments shall be made by the Compensation Committee for any future
issuances of rights to acquire and securities convertible into Common Stock and
any stock dividends, splits, combinations, recapitalizations or any other
adjustment in the number of outstanding shares of Common Stock.
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8. The Company's Representations and Warranties.
(a) The Company represents and warrants to the Purchaser that
(i) this Agreement has been duly authorized, executed and delivered by the
Company and (ii) the Purchase Stock, when issued and delivered in accordance
with the terms hereof, will be duly and validly issued, fully paid and
nonassessable.
(b) If the Company shall have engaged in a Public Offering,
the Company will file the reports required to be filed by it under the Act and
the Exchange Act and the rules and regulations adopted by the SEC thereunder, to
the extent required from time to time to enable the Purchaser to sell shares of
Purchase Stock without registration under the Act within the limitations of the
exemptions provided by (i) Rule 144 or Rule 144A under the Act, as such Rule may
be amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the SEC. Notwithstanding anything contained in this Section 8(b), the
Company may deregister under Section 12 of the Exchange Act if it is then
permitted to do so pursuant to the Exchange Act and the rules and regulations
thereunder. Nothing in this Section 8(b) shall be deemed to limit in any manner
the restrictions on sales of Purchase Stock contained in this Agreement.
9. "Piggyback" Registration Rights.
(a) Effective upon the purchase of Common Stock pursuant to
this Agreement, until the later of (i) the first occurrence of a Qualified
Public Offering (as defined in Section 7(e) above) or (ii) the fifth anniversary
of the 1997 Agreement Date, the Purchaser hereby agrees to be bound by all of
the terms, conditions and obligations of the Registration Rights Agreement dated
as of September 30, 1996, among the Company, Strata Associates, L.P. and KKR
Partners II, L.P. (the "Registration Rights Agreement") and, in the case of a
Qualified Public Offering and subject to the limitations set forth in this
Section 9, shall have all of the rights and privileges of the Registration
Rights Agreement, in each case as if the Purchaser were an original party (other
than the Company) thereto; provided, however, that the Purchaser shall not have
any rights to request registration under Section 3 of the Registration Rights
Agreement; and provided, further, that the Purchaser shall not be bound by any
amendments to the Registration Rights Agreement unless Purchaser consents
thereto. Notwithstanding anything to the contrary contained in the Registration
Rights Agreement, the Purchaser's rights and obligations under the Registration
Rights Agreement shall be subject to the limitations and additional obligations
set forth in this Section 9. All shares of Purchase Stock purchased by the
Purchaser pursuant to this Agreement and held by the Purchaser, the Purchaser's
Trust or the Purchaser's Estate shall be deemed to be Registrable Securities as
defined in the Registration Rights Agreement.
(b) The Company will promptly notify the Purchaser in writing
(a "Notice") of any proposed registration (a "Proposed Registration") in
connection with a Qualified Public Offering. If within 15 days of the receipt by
the Purchaser of such Notice, the Company receives from the Purchaser, the
Purchaser's Trust or the Purchaser's Estate a written request (a "Request") to
register shares of Purchase Stock held by the Purchaser, the Purchaser's Estate
or the Purchaser's Trust (which Request will be irrevocable unless otherwise
mutually agreed to in
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writing by the Purchaser and the Company), shares of Purchase Stock will be so
registered as provided in this Section 9; provided, however, that for each such
registration statement only one Request, which shall be executed by the
Purchaser, the Purchaser's Trust or the Purchaser's Estate, as the case may be,
may be submitted for all Registrable Securities held by the Purchaser, the
Purchaser's Estate and the Purchaser's Trust.
(c) The maximum number of shares of Purchase Stock which will
be registered pursuant to a Request will be the lowest of (i) the number of
shares of Purchase Stock then held by the Purchaser (which for purposes of this
subparagraph (c) shall include shares held by the Purchaser's Estate or a
Purchaser's Trust) or (ii) the maximum number of shares of Purchase Stock which
the Company can register in the Proposed Registration without adverse effect on
the offering in the view of the managing underwriters (reduced pro rata with all
Other Purchasers (as defined in Section 10)) as more fully described in
subsection (d) of this Section 9 or (iii) the maximum number of shares which the
Purchaser (pro rata based upon the aggregate number of shares of Common Stock
the Purchaser and all Other Purchasers have requested be registered) and all
Other Purchasers are permitted to register under the Registration Rights
Agreement.
(d) If a Proposed Registration involves an underwritten
offering and the managing underwriter advises the Company in writing that, in
its opinion, the number of shares of Purchase Stock requested to be included in
the Proposed Registration exceeds the number which can be sold in such offering,
so as to be likely to have an adverse effect on the price, timing or
distribution of the shares of Purchase Stock offered in such Qualified Public
Offering as contemplated by the Company, then the Company will include in the
Proposed Registration (i) first, 100% of the shares of Purchase Stock the
Company proposes to sell and (ii) second, to the extent of the number of shares
of Purchase Stock requested to be included in such registration which, in the
opinion of such managing underwriter, can be sold without having the adverse
effect referred to above, the number of shares of Purchase Stock which the
"Holders" (as defined in the Registration Rights Agreement), including, without
limitation, the Purchaser and Other Purchasers, have requested to be included in
the Proposed Registration, such amount to be allocated pro rata among all
requesting Holders on the basis of the relative number of shares of Purchase
Stock then held by each such Holder (provided that any shares thereby allocated
to any such Holder that exceed such Holder's request will be reallocated among
the remaining requesting Holders in like manner).
(e) Upon delivering a Request the Purchaser will, if requested
by the Company, execute and deliver a custody agreement and power of attorney in
form and substance satisfactory to the Company with respect to the shares of
Purchase Stock to be registered pursuant to this Section 9 (a "Custody Agreement
and Power of Attorney"). The Custody Agreement and Power of Attorney will
provide, among other things, that the Purchaser will deliver to and deposit in
custody with the custodian and attorney-in-fact named therein a certificate or
certificates representing such shares of Purchase Stock (duly endorsed in blank
by the registered owner or owners thereof or accompanied by duly executed stock
powers in blank) and irrevocably appoint said custodian and attorney-in-fact as
the Purchaser's agent and
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attorney-in-fact with full power and authority to act under the Custody
Agreement and Power of Attorney on the Purchaser's behalf with respect to the
matters specified therein.
(f) The Purchaser agrees that he will execute such other
agreements as the Company may reasonably request to further evidence the
provisions of this Section 9.
10. Pro Rata Repurchases.
Notwithstanding anything to the contrary contained in Sections
5, 6 or 7, if at any time consummation of all purchases and payments to be made
by the Company pursuant to this Agreement and the purchasers' agreements entered
into between the Company and certain employees, among others ("Other
Purchasers"), of the Company pursuant to which such purchasers acquired Common
Stock and options for Common Stock would result in an Event, then the Company
shall make purchases from, and payments to, the Purchaser and such Other
Purchasers pro rata (on the basis of the proportion of the number of shares of
Purchase Stock and the number of options each such Purchaser and all Other
Purchasers have elected or are required to sell to the Company) for the maximum
number of shares of Purchase Stock permitted without resulting in an Event (the
"Maximum Repurchase Amount"). The provisions of Section 5(b) and 6(c) shall
apply in their entirety to payments and repurchases with respect to shares of
Purchase Stock which may not be made due to the limits imposed by the Maximum
Repurchase Amount under this Section 10. Until all of such Purchase Stock and
options are purchased and paid for by the Company, the Purchaser and the Other
Purchasers whose Purchase Stock and options are not purchased in accordance with
this Section 10 shall have priority, on a pro rata basis, over other purchases
of Common Stock and options by the Company pursuant to this Agreement and Other
Purchasers' Agreements.
11. Rights to Negotiate Repurchase Price.
Nothing in this Agreement shall be deemed to restrict or
prohibit the Company from purchasing shares of Purchase Stock from the
Purchaser, at any time, upon such terms and conditions, and for such price, as
may be mutually agreed upon between the Parties, whether or not at the time of
such purchase circumstances exist which specifically grant the Company the right
to purchase, or the Purchaser the right to sell, shares of Purchase Stock under
the terms of this Agreement.
12. Covenant Regarding 83(b) Election.
Except as the Company may otherwise agree in writing, the
Purchaser hereby covenants and agrees that he will make an election provided
pursuant to Treasury Regulation 1.83-2 with respect to the Purchase Stock; and
Purchaser further covenants and agrees that he will furnish the Company with
copies of the forms of election the Purchaser files within 30 days after the
Purchase Date.
13. Notice of Change of Beneficiary.
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Immediately prior to any transfer of Purchase Stock to a
Purchaser's Trust, the Purchaser shall provide the Company with a copy of the
instruments creating the Purchaser's Trust and with the identity of the
beneficiaries of the Purchaser's Trust. The Purchaser shall notify the Company
immediately prior to any change in the identity of any beneficiary of the
Purchaser's Trust.
14. Expiration of Certain Provisions.
The provisions contained in Sections 4, 5 and 6 of this
Agreement and the portion of any other provision of this Agreement which
incorporates the provisions of Sections 4, 5 and 6, shall terminate and be of no
further force or effect with respect to any shares of Purchase Stock sold by the
Purchaser (i) pursuant to an effective registration statement filed by the
Company pursuant to Section 9 hereof or (ii) pursuant to the terms of the Sale
Participation Agreement of even date herewith, among the Purchaser and Strata
Associates, L.P.
The provisions contained in Sections 2(e), 3, 4, 5, 6 and 12
of this Agreement, and the portion of any other provisions of this Agreement
which incorporate the provisions of such Sections, shall terminate and be of no
further force or effect upon the consummation of a merger, reorganization,
business combination or liquidation of the Company, or a sale of Common Stock
owned by the Investors, but only if such merger, reorganization, business
combination, liquidation or sale of Common Stock results in Strata Associates,
L.P. or any affiliate thereof, no longer having the power (i) to elect a
majority of the Board of Directors of the Company or such other corporation
which succeeds to the Company's rights and obligations pursuant to such merger,
reorganization, business combination, liquidation or stock sale, or (ii) if the
resulting entity of such merger, reorganization, business combination,
liquidation or stock sale is not a corporation, to select the general partner(s)
or other persons or entities controlling the operations and business of the
resulting entity.
15. Recapitalizations, etc.
The provisions of this Agreement shall apply, to the full
extent set forth herein with respect to the Purchase Stock, to any and all
shares of capital stock of the Company or any capital stock, partnership units
or any other security evidencing ownership interests in any successor or assign
of the Company (whether by merger, consolidation, sale of assets or otherwise)
which may be issued in respect of, in exchange for, or substitution of the
Purchase Stock, by reason of any stock dividend, split, reverse split,
combination, recapitalization, liquidation, reclassification, merger,
consolidation or otherwise.
16. State Securities Laws.
The Company hereby agrees to use its best efforts to comply
with all state securities or "blue sky" laws which might be applicable to the
sale of the Purchase Stock to the Purchaser.
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17. Binding Effect.
The provisions of this Agreement shall be binding upon and
accrue to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. In the case of a transferee permitted
under Section 2(a) hereof, such transferee shall be deemed the Purchaser
hereunder; provided, however, that no transferee (including without limitation,
transferees referred to in Section 2(a) hereof) shall derive any rights under
this Agreement unless and until such transferee has delivered to the Company a
valid undertaking and becomes bound by the terms of this Agreement.
18. Amendment.
This Agreement may be amended only by a written instrument
signed by the Parties hereto.
19. Amendment to Prior Stockholder Agreement.
Notwithstanding the provision in the Stockholder Agreement
dated as of September 23, 1997 between the Company and the Purchaser that
defines "Stock" to include all stock acquired at any time by the Purchaser from
the Company, the Purchase Stock to be sold under this Agreement shall not be
included in the definition of "Stock" under the prior Stockholder Agreement and
the provisions of this Agreement shall supersede in all respects the provisions
of the prior Stockholder's Agreement with respect to the Purchase Stock in all
respects.
20. Closing.
Except as otherwise provided herein, the closing of each
purchase and sale of shares of Purchase Stock, pursuant to this Agreement shall
take place at the principal office of the Company on the tenth business day
following delivery of the notice by either Party to the other of its exercise of
the right to purchase or sell such Purchase Stock hereunder.
21. Applicable Law.
The laws of the state of Delaware (or if the Company
reincorporates in another state, of that state) shall govern the interpretation,
validity and performance of the terms of this Agreement, regardless of the law
that might be applied under principles of conflicts of law. Any suit, action or
proceeding against the Purchaser, with respect to this Agreement, or any
judgment entered by any court in respect of any thereof, may be brought in any
court of competent jurisdiction in the State of Delaware (or if the Company
reincorporates in another state, in that state) or New York, as the Company may
elect in its sole discretion, and the Purchaser hereby submits to the
non-exclusive jurisdiction of such courts for the purpose of any such suit,
action,
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proceeding or judgment. By the execution and delivery of this Agreement, the
Purchaser appoints The Corporation Trust Company, at its office in New York, New
York or Wilmington, Delaware (or if the Company reincorporates in another state,
an office in that state), as the case may be, as his agent upon which process
may be served in any such suit, action or proceeding. Service of process upon
such agent, together with notice of such service given to the Purchaser in the
manner provided in Section 23 hereof, shall be deemed in every respect effective
service of process upon him in any suit, action or proceeding. Nothing herein
shall in any way be deemed to limit the ability of the Company to serve any such
writs, process or summonses in any other manner permitted by applicable law or
to obtain jurisdiction over the Purchaser, in such other jurisdictions and in
such manner, as may be permitted by applicable law. The Purchaser hereby
irrevocably waives any objections which he may now or hereafter have to the
laying of the venue of any suit, action or proceeding arising out of or relating
to this Agreement brought in any court of competent jurisdiction in the State of
Delaware (or if the Company reincorporates in another state, in that state) or
New York, and hereby further irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in any
inconvenient forum. No suit, action or proceeding against the Company with
respect to this Agreement may be brought in any court, domestic or foreign, or
before any similar domestic or foreign authority other than in a court of
competent jurisdiction in the State of Delaware (or if the Company
reincorporates in another state, in that state) or New York, and the Purchaser
hereby irrevocably waives any right which he may otherwise have had to bring
such an action in any other court, domestic or foreign, or before any similar
domestic or foreign authority. The Company hereby submits to the jurisdiction of
such courts for the purpose of any such suit, action or proceeding.
22. Assignability of Certain Rights by the Company.
The Company shall have the right to assign any or all of its
rights or obligations to purchase shares of Purchase Stock pursuant to Sections
4, 5 and 6 hereof; provided, however, that the Company shall remain obligated to
perform its obligations notwithstanding such assignment in the event that such
assignee fails to perform the obligations so assigned to it.
23. Miscellaneous.
In this Agreement (i) all references to "dollars" or "$" are
to United States dollars and (ii) the word "or" is not exclusive. If any
provision of this Agreement shall be declared illegal, void or unenforceable by
any court of competent jurisdiction, the other provisions shall not be affected,
but shall remain in full force and effect.
24. Notices.
All notices and other communications provided for herein shall
be in writing and shall be deemed to have been duly given if delivered by hand
(whether by overnight courier or otherwise) or sent by registered or certified
mail, return receipt requested, postage prepaid, to the Party to whom it is
directed:
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(a) If to the Company, to it at the following address:
x/x Xxxxxxxx Xxxxxx Xxxxxxx & Co.
0 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
(b) If to the Purchaser, to him at the address set forth
below under his signature; or at such other address
as either party shall have specified by notice in
writing to the other.
25. Confidential Information.
The Purchaser will not disclose or use at any time any
Confidential Information (as defined below) of which the Purchaser is or becomes
aware, whether or not such information is developed by him, except to the extent
that such disclosure or use is directly related to and required by the
Purchaser's performance of duties, if any, assigned to the Purchaser by the
Company. As used in this Agreement, the term "Confidential Information" means
information that is not generally known to the public and that is used,
developed or obtained by the Company or its subsidiaries in connection with its
business, including but not limited to (i) products or services, (ii) fees,
costs and pricing structures, (iii) designs, (iv) computer software, including
operating systems, applications and program listings, (v) flow charts, manuals
and documentation, (vi) data bases, (vii) accounting and business methods,
(viii) inventions, devices, new developments, methods and processes, whether
patentable or unpatentable and whether or not reduced to practice, (ix)
customers and clients and customer or client lists, (x) other copyrightable
works, (xi) all technology and trade secrets, and (xii) all similar and related
information in whatever form. Confidential Information will not include any
information that has been published in a form generally available to the public
prior to the date the Purchaser proposes to disclose or use such information.
The Purchaser acknowledges and agrees that all copyrights, works, inventions,
innovations, improvements, developments, patents, trademarks and all similar or
related information which relate to the actual or anticipated business of the
Company and its subsidiaries (including its predecessors) and conceived,
developed or made by the Purchaser while employed by the Company or its
subsidiaries belong to the Company. The Purchaser will perform all actions
reasonably requested by the Company (whether during or after
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the Noncompete Period) to establish and confirm such ownership at the Company's
expense (including without limitation assignments, consents, powers of attorney
and other instruments).
IN WITNESS WHEREOF, the Parties have executed this Agreement
as of the date first above written.
SPALDING HOLDINGS CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
President
/s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, Trustee of the
Xxxxx X. Xxxxx Revocable Trust Under
Agreement Dated 6/16/82, As Amended
000 Xxxxx Xxxxxxxx
Xxxxxxxxx 00000
Xxxxxxxxxx, Xxxx 00000
