AGREEMENT
This Agreement (the "Agreement") is entered into as of August 24, 1992
by and between Columbia Sportswear Holdings Limited, a corporation organized
under the laws of the Province of Ontario, Canada ("Columbia Holdings"),
Columbia Sportswear Canada Limited, a corporation organized under the laws of
the Province of Ontario, Canada and a wholly owned subsidiary of Columbia
Holdings ("Columbia Canada") and Xxxxxxx Xxxxxxxx ("Xxxxxxxx") and Xxxx Xxxxxxxx
in trust for Xxxxxxxxx X. Xxxxxxxx (together, the "Hamiltons").
Recitals
1. The Hamiltons own 25 percent of the issued and outstanding common stock
of Canada-Trans Limited, a corporation organized under the laws of the Province
of Ontario, Canada ("Canada-Trans").
2. Pursuant to a stock purchase agreement dated as of August 20, 1992 among
Canada-Trans, Columbia Canada and all of the shareholders of Canada-Trans (the
"Purchase Agreement"), Canada-Trans, Columbia Canada and the shareholders of
Canada-Trans have agreed that (a) Columbia Canada will acquire all of the issued
and outstanding shares of Canada-Trans' capital stock in exchange for cash,
notes and, in the case of the shares of Canada- Trans common stock held by the
Hamiltons, shares of the common stock of Columbia Canada, (b) immediately after
Columbia Canada's acquisition of the stock of Canada-Trans, Columbia Canada and
Canada-Trans will be amalgamated and the Hamiltons will hold 2,500 shares of the
common stock of the amalgamated company ("Successor"), constituting 25 percent
of the outstanding capital stock of Successor, and (c) upon the terms and
conditions provided herein, Columbia Holdings shall purchase from the Hamiltons
all of their shares of Successor's stock (the "Hamilton Shares").
Agreement
In consideration of the mutual covenants and agreements set forth
below and in the Purchase Agreement and other good and valuable consideration,
the parties agree as follows:
1. AGREEMENT TO PURCHASE SHARES OF SUCCESSOR
Subject to the following paragraph, Columbia Holdings agrees to
purchase, and the Hamiltons agree to sell to Columbia Holdings, the Hamilton
Shares on April 30, 1996. The purchase price for the Hamilton Shares shall be
determined as follows:
-- -- -- --
| C$749,750 x x | + |C$250,000 x y |
| ---------- | ----------- |
| C$4,000,00 | | C$4,000,000 |
-- -- -- --
Where x = the lesser of (1) the Cumulative EBT (as defined below) and (2)
C$4,000,000 and y = the lesser of (1) the amount, if any, by which the
Cumulative EBT exceeds C$4,000,000 and (2) $4,000,000.
In the event of Xxxxxxxx'x death, permanent disability or termination
of employment by Successor without cause, Columbia Holdings agrees to purchase,
and the Hamiltons agree to sell to Columbia Holdings, the Hamilton Shares for a
purchase price of the greater of (a) C$750,000 or (b) the purchase price as
determined in accordance with the formula above. Columbia Holdings shall pay the
Hamiltons C$750,000 in a lump sum within 90 days after the date of death,
permanent disability or termination without
cause and the remaining portion of the purchase price, if any, shall be paid on
April 30, 1996.
For purposes of this Agreement, "cause" shall mean: (a) Xxxxxxxx'x
gross dereliction of his duties; (b) theft or misappropriation of any property
of Successor by Hamilton; (c) conviction of Hamilton of a felony or of any crime
involving dishonesty or moral turpitude which might reasonably be expected to
adversely affect the business, reputation or business relationships of
Successor; or (d) violation by Hamilton of any of the provisions of this
Agreement.
For purposes of this Agreement, Cumulative EBT shall mean the sum of
Earnings Before Taxes for each of Canada-Trans' and Successor's calendar years
1992 through 1995. Earnings Before Taxes shall mean Canada- Trans' and
Successor's net income before taxes as shown on audited financial statements
prepared for Canada-Trans and Successor with respect to the calendar year then
ended and in accordance with generally accepted Canadian accounting principles
and subject to the following adjustments:
a. The parties acknowledge that in the past the Gross Margin to
Columbia Sportswear Company, an affiliate of Columbia Holdings and Columbia
Canada ("Columbia"), on merchandise sold to Canada-Trans, Successor's
predecessor, has been consistent with the Gross Margin on merchandise sold to
Columbia's other foreign distributors and that, based on a number of factors
including market conditions, such margins change from time to time. The parties
further acknowledge that Columbia's Gross Margin on products sold to its other
foreign distributors is currently higher than the Gross Margin on merchandise
sold to the Company. Nevertheless, for ease and certainty in determining the
purchase price and notwithstanding the actual Gross Margin on Columbia
merchandise sold to Successor and other foreign distributors, Successor's cost
of goods sold shall be adjusted, for purposes of this calculation, so as to
reflect a pro forma 20 percent Gross Margin to Columbia on all Columbia
merchandise purchased by Successor. For purposes of the adjustment, and as used
in this subparagraph, "Gross Margin" shall mean Columbia's pro forma net revenue
from sales of merchandise to Successor, less Columbia's f.o.b. cost of the
merchandise (determined on a basis consistent with accounting principles applied
in prior years).
b. Notwithstanding financing and service fees actually paid
during the period, financing and service fees will be adjusted for purposes of
this calculation to 6 percent of Successor's cost (as adjusted pursuant to
subparagraph (a) above) for all merchandise purchased from Columbia.
c. For purposes of this calculation, all customs and duty costs
will be adjusted commensurate with adjustments in pricing resulting from the
Gross Margin assumptions in subparagraph (a) above.
d. Amortized goodwill resulting from this transaction shall be
excluded.
e. Notwithstanding Successor's interest expense during the
period, interest on all indebtedness of Successor shall be assumed for purposes
of this calculation to have been equal to the prime interest rate on loans by
the Royal Bank of Canada plus one percent; provided, however, that there shall
be no charge on indebtedness incurred to fund the acquisition of the
Canada-Trans stock and the retirement of loans to Canada-Trans made by
Canada-Trans' shareholders pursuant to the Purchase Agreement.
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f. There shall be no charge with respect to any management fees
paid by the Successor Company to Columbia.
2. THE CLOSING
At the closing of the purchase of the Hamilton Shares (the "Closing"),
the Hamiltons shall deliver to Columbia Holdings, or its nominee, the
certificates representing the Hamilton Shares, duly endorsed in blank, and
Columbia Holdings shall wire transfer to the account designated in writing by
the Hamiltons the cash consideration described in Section 1.
3. XXXXXXXX'X EMPLOYMENT
3.01 Title and Duties. After the amalgamation of Columbia Canada and
Canada-Trans, Hamilton shall hold the title of President and Chief Operating
Officer of Successor and shall undertake and render such services as are
customarily performed by the President and Chief Operating Officer of a
corporation engaged in the business of marketing sportswear or prescribed in
Successor's bylaws and such other duties as may from time to time be assigned to
him by Successor's Board of Directors. Hamilton shall devote his full business
time to Successor and to its affairs and safeguard and promote its lawful
interests.
3.02 Compensation. As payment in full for all his services rendered under
this Agreement, Successor shall pay Hamilton a salary and provide benefits as
previously agreed upon by Hamilton and Columbia Canada.
4. CONFIDENTIALITY AND NONCOMPETITION
4.01 Definition of Confidential Information. As used in this Agreement, the
term "Confidential Information" means: (a) proprietary information of Successor;
(b) information marked or designated by Successor as confidential; (c)
information, whether or not in written form and whether or not designated as
confidential, which is known to Hamilton as being treated by Successor as
confidential; and (d) information provided to Successor by third parties which
Successor is obligated to keep confidential. Confidential Information includes
but is not limited to know-how, customer lists, marketing plans, and financial
and technical information.
4.02 Acknowledgment of Receipt of Confidential Information. Xxxxxxxx
acknowledges that in the course of performing his duties for Successor he will
have access to Confidential Information, the ownership and confidential status
of which are highly important to Successor, and Hamilton agrees in addition to
the specific covenants contained herein, to comply with all reasonable policies
and procedures of Successor as may be established from time to time for the
protection of such Confidential Information.
4.03 Ownership. Hamilton acknowledges that all Confidential Information is
and shall continue to be the exclusive property of Successor, whether or not
prepared in whole or in part by him and whether or not disclosed to or entrusted
to him in connection with employment by Successor.
4.04 Acknowledgment of Irreparable Harm. Hamilton acknowledges that any
disclosure of Confidential Information will cause irreparable harm to Successor.
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4.05 Covenant of Nondisclosure and Nonuse. Hamilton agrees not to disclose
Confidential Information, directly or indirectly, under any circumstances or by
any means, to any third person. Hamilton agrees that he will not copy, transmit,
reproduce, summarize, quote or make any commercial or other use whatsoever of
Confidential Information, except as may be necessary to perform work done by him
for Successor.
4.06 Safeguard of Confidential Information. Xxxxxxxx agrees to exercise the
highest degree of care in safeguarding Confidential Information against loss,
theft, or other inadvertent disclosure and agrees generally to take all steps
necessary or requested by Successor to insure maintenance of confidentiality.
4.07 Exclusions. This Section 4 shall not apply to the following
information: (a) information now and hereafter voluntarily disseminated by
Successor to the public or which otherwise becomes part of the public domain
through lawful means; (b) information subsequently and rightfully received from
third parties and not subject to any obligation of confidentiality; and (c)
information independently developed by Hamilton after termination of his
employment.
4.08 Work Made for Hire. Hamilton agrees that all creative work prepared or
originated by him for Successor or during or within the scope of his employment
by Successor is owned by Successor; and, in any event, Hamilton assigns to
Successor all intellectual property rights in such work whether by right of
copyright, trade secret or otherwise and whether or not subject to protection by
copyright laws.
4.09 Noncompetition. During the term of Xxxxxxxx'x employment by Successor
and for one year thereafter, Hamilton agrees that he will not, without the prior
written consent of Successor, directly or indirectly, whether as employee,
officer, director, independent contractor, consultant, stockholder, partner, or
otherwise, engage or assist others to engage in or have any interest in any
business which competes with the Company in the Dominion of Canada. Hamilton
further agrees and acknowledges that the time, scope, and geographic area and
other provisions of this paragraph have been specifically negotiated by
sophisticated parties and specifically hereby agrees that such time, scope,
geographic areas, and other provisions are reasonable under the circumstances.
Hamilton further agrees that if, despite the express agreement of the parties
herein, a court should hold any portion of this Section 4.09 to be unenforceable
for any reason, the maximum restrictions of time, scope, and geographic area
reasonable under the circumstances, as determined by the court, will be
substituted for the restrictions held unenforceable.
4.10 Non-Solicitation and Non-Hire. During the term of Xxxxxxxx'x
employment by Successor and for a period of one year thereafter, Hamilton agrees
that he will not: (a) solicit, induce, or attempt to induce any person who is an
employee of Successor to leave the employ of Successor or to engage in any
business that competes with Successor; or (b) hire or assist in the hiring of
any person who is an employee of Successor to work for any business that
competes with Successor.
4.11 Future Association. For a period of one year after termination of his
employment by Successor, Hamilton agrees to notify Successor of any involvement
with any business that competes with Successor. Hamilton shall disclose the
existence and contents of this Agreement to any business with which Hamilton
becomes associated within such time period.
4.12 Delivery of Materials. Upon termination of his employment status,
Hamilton will deliver to Successor all materials, including without limitation
customer lists, documents, records, drawings, prototypes, models
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and schematic diagrams, which describe, depict, contain, constitute, reflect,
record or in any way relate to Confidential Information, which are in Xxxxxxxx'x
possession or under his control, whether or not the materials were prepared by
Hamilton.
4.13 Subpoenas. If Hamilton is served with any subpoena or other compulsory
judicial or administrative process calling for production of Confidential
Information or if Hamilton is otherwise required by law or regulation to
disclose Confidential Information, Xxxxxxxx will immediately, and prior to
production or disclosure, notify Successor and provide it with such information
as may be necessary in order that Successor may take such action as it deems
necessary to protect its interest.
5. REPRESENTATIONS AND WARRANTIES OF THE HAMILTONS
The Hamiltons jointly and severally represent and warrant to Columbia
Holdings and Columbia Canada as follows:
5.01 Title to Stock. At the Closing, the Hamiltons will own of record and
beneficially the shares of stock of Successor set forth opposite on Annex A free
and clear of all rights of joint ownership, pledges, security interests, liens,
charges, encumbrances, equities, claims, options (other than pursuant to this
Agreement) or limitations and upon delivery of the shares as provided in this
Agreement, Columbia Holdings will acquire good and valid title thereto, free and
clear of all rights of joint owner ship, pledges, security interests, liens,
charges, encumbrances, equities, options or limitations.
5.02 Authority Relative to this Agreement. The Hamiltons have full right,
power and authority to enter into this Agreement and carry out the terms hereof
and have duly executed and delivered this Agreement, and this Agreement is a
valid and binding obligation enforceable against each of them in accordance with
its terms, except that such enforcement may be subject to (a) bankruptcy,
insolvency, moratorium or other similar laws now or hereafter in effect relating
to creditors' rights and (b) general prin ciples of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
5.03 Consents and Approvals; No Violation. The execution and delivery of
this Agreement by the Hamiltons will not (a) require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
or regulatory authority or third person, or (b) conflict with, result in a
breach of or constitute a default (or give rise to any right of termination,
cancellation or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, agreement or other instrument
or obligation to which either of the Hamiltons is a party or by which either of
them may be bound; or (c) violate any order, writ, injunction, decree, statute,
rule or regulation applicable to either of them.
6. REPRESENTATIONS AND WARRANTIES OF COLUMBIA HOLDINGS
Columbia Holdings represents and warrants to the Hamiltons as follows:
6.01 Organization. Columbia Holdings is a corporation duly organized and
validly existing under the laws of the Province of Ontario, Canada.
6.02 Authority Relative to this Agreement. Columbia Holdings has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The
5
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of Columbia Holdings. This Agreement has been duly and
validly executed and delivered by Columbia Holdings and constitutes a valid and
binding agreement of Columbia Holdings, enforceable against Columbia Holdings in
accordance with its terms, except that such enforcement may be subject to (a)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights, and (b) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
6.03 Consents and Approvals, No Violation. The execution, delivery and
performance of this Agreement by Columbia Holdings and the compliance by
Columbia Holdings with the provisions of this Agreement will not (a) violate the
Articles of Incorporation or Bylaws of Columbia Holdings; (b) require any
consent, approval, authorization or permit of filing with or notification to any
governmental or regulatory authority; (c) conflict with, result in a breach of
or constitute a default under any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, agreement or other instrument of
obligation to which Columbia Holdings or any of its assets may be bound; or (d)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Columbia Holdings or any of its assets.
7. REPRESENTATIONS AND WARRANTIES OF COLUMBIA CANADA
Columbia Canada represents and warrants to the Hamiltons as follows:
7.01 Organization. Columbia Canada is a corporation duly organized and
validly existing under the laws of the Province of Ontario, Canada.
7.02 Authority Relative to this Agreement. Columbia Canada has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by the Board of Directors of Columbia Canada.
This Agreement has been duly and validly executed and delivered by Columbia
Canada and constitutes a valid and binding agreement of Columbia Canada,
enforceable against Columbia Canada in accordance with its terms, except that
such enforcement may be subject to (a) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights, and (b) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
7.03 Consents and Approvals, No Violation. The execution, delivery and
performance of this Agreement by Columbia Canada and the compliance by Columbia
Canada with the provisions of this Agreement will not (a) violate the Articles
of Incorporation or Bylaws of Columbia Canada; (b) require any consent,
approval, authorization or permit of filing with or notification to any
governmental or regulatory authority; (c) conflict with, result in a breach of
or constitute a default under any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, agreement or other instrument of
obligation to which Columbia Canada or any of its assets may be bound; or (d)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Columbia Canada or any of its assets.
8. COVENANTS OF THE PARTIES
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8.01 Further Assurances. Subject to the terms and conditions of this
Agreement, each of the parties hereto will use all reasonable efforts to take,
or cause to be taken, all action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
8.02 Sales and Transfer Taxes. All transfer taxes (including all stock
transfer taxes, if any) incurred in connection with this Agreement and the
transactions contemplated hereby will be borne by the Hamiltons, and the
Hamiltons will, at their own expense, file all necessary tax returns and other
documentation with respect to all such transfer taxes, and, if required by
applicable law, and Columbia Holdings will join in the execution of any such tax
returns or other documentation.
8.03 No Encumbrances. Each of the Hamiltons agrees not to transfer, pledge
or in any way encumber any of the Hamilton Shares.
8.04 Corporate Actions. Columbia Holdings and Columbia Canada each agrees
that so long as the Hamiltons are the owners of the Hamilton Shares, except as
expressly contemplated hereby, the following corporate actions shall be subject
to the unanimous approval of Successor's shareholders: (a) the entering into of
any agreement, or the making of any offer, or the granting of any right capable
of becoming an agreement, to allot or issue any shares of capital stock of
Successor; (b) any action which may reasonably be expected to lead to or result
in a material change in the nature of Successor's business; (c) the taking of
any steps to wind up or terminate the corporate existence of Successor; (d) the
sale, lease, exchange or disposition of the entire undertaking or property or
assets of Successor or any substantial part thereof other than in the ordinary
course of Successor's business; (e) the entering into of an amalgamation, merger
or consolidation with any other corporation and (f) the appointment of officers
of Successor.
9. CONDITIONS TO PURCHASE AND SALE OF SHARES
9.01 Conditions to Obligations of the Hamiltons. The obligations of the
Hamiltons to sell the Hamilton Shares as contemplated hereunder shall be subject
to the fulfillment at or prior to the Closing Date of the following conditions,
any one or more of which may be waived by the Hamiltons:
a. Columbia Holdings shall, in all material respects, have performed
and complied with the covenants and agreements contained in this Agreement
required to be performed and complied with by it at or prior to the Closing
Date;
b. The representations and warranties of Columbia Holdings contained
in this Agreement shall have been correct when made and shall be correct as of
the Closing Date.
9.02 Conditions to Obligations of Columbia Holdings. The obligations of
Columbia Holdings to purchase the Hamilton Shares as contemplated hereunder
shall be further subject to the fulfillment at or prior to the Closing Date of
the following conditions, any one or more of which may be waived by Columbia
Holdings:
a. The Hamiltons shall, in all material respects, have performed and
complied with the covenants and agreements contained in this Agreement required
to be performed and complied with by them at or prior to the Closing Date;
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b. The representations and warranties of the Hamiltons contained in
this Agreement shall have been correct when made and shall be correct as of the
Closing Date.
10. MISCELLANEOUS PROVISIONS
10.01 Severability. In case any provision of this Agreement is held to be
invalid, illegal, or unenforceable in any respect, such invalidity, illegality,
or unenforceability shall not upset any other provision hereof and the Agreement
shall in all other respects be valid and enforceable.
10.02 Legends. All certificates representing the Hamilton Shares shall be
endorsed with the following legend, in addition to any legends required by
applicable federal or provincial securities laws or any other agreement:
"The Shares represented by this certificate are subject
to restrictions on transfer contained in an Agreement dated
as of August 24, 1992 among the Company, the holder and
another shareholder of the Company, a copy of which is on
file at the principal office of the Company."
10.03 Amendment and Modification. Subject to applicable law, this Agreement
may be amended, modified or supplemented only by written agreement of the
Hamiltons, Columbia Canada and Columbia Holdings.
10.04 Waiver of Compliance; Consents. Except as otherwise provided in this
Agreement, any failure of any of the parties to comply with any obligation,
covenant, agreement or condition herein may be waived by the party entitled to
the benefits thereof only by a written instrument signed by the party granting
such waiver, but such waiver or failure to insist upon strict compliance with
such obligation, covenant, agreement or condition shall not operate as a waiver
of, or estoppel with respect to, any subsequent or other failure.
10.05 Survival. The representations, warranties and covenants of the
parties contained in this Agreement shall survive the execution and delivery of
this Agreement and the completion of the purchase of the Hamilton Shares and the
obligations set forth in Section 4 shall continue beyond the termination of this
Agreement.
10.06 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by registered or
certified mail (return receipt requested), postage prepaid, to the parties at
the following addresses (or at such other address for a party as shall be
specified by like notice; provided that notices of a change of address shall be
effective only upon receipt thereof):
a. If to the Hamiltons, to:
Xxxxxxx Xxxxxxxx
c/o Columbia Sportswear Canada Limited
000 Xxxx Xxxxxx Xxxx, Xxxx 0
Xxxxxxxxx, Xxxxxxx
Xxxxxx X0X0X0
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with copies to:
XxXxxxxx Xxxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxxx
Xxxxxx X0X 0X0
Attention: Xxxxx X. Xxxxxxx
b. If to Columbia Holdings, to:
Columbia Sportswear Holdings Limited
c/o Columbia Sportswear Company
0000 X Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
with copies to:
Stoel Xxxxx Xxxxx Xxxxx & Grey
000 XX Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
c. If to Columbia Canada or Successor, to:
Columbia Sportswear Canada Limited
c/o Columbia Sportswear Company
0000 X Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
with copies to:
Stoel Xxxxx Xxxxx Xxxxx & Grey
000 XX Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
10.07 Assignment. Columbia Holdings' right to purchase the Hamilton Shares
shall be freely transferrable by Columbia Holdings to any affiliate or
shareholder of Columbia. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
10.08 Attorneys' Fees/Governing Law. In any litigation arising out of this
Agreement, the prevailing party will be entitled to recover all reasonable
attorneys' fees on appeal or petition for review. The rights and obligations of
the parties under this Agreement shall in all respects be governed by the laws
of the Province of Ontario, Canada.
10.09 Indemnification. Each party will indemnify, hold harmless and defend
the other from and against and reimburse the others with respect to any and all
losses, costs, expenses, damages or liabilities (including reasonable attorneys'
fees) incurred by the other by reason of, arising out of or in connection with
the breach or inaccuracy of any representation or warranty of the indemnifying
party under this Agreement and the
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nonfulfillment of any covenant or agreement on the part of the indemnifying
party under this Agreement.
10.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.11 Interpretation. The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Agreement.
10.12 Entire Agreement. Except for the Purchase Agreement, this Agreement,
including the Annex referred to herein, embodies the entire agreement and,
understanding of the parties hereto in respect of the transactions contemplated
by this Agreement. There are no restrictions, promises, representations,
warranties, covenants or undertakings, other than those expressly set forth or
referred to herein. Except for the Purchase Agreement, this Agreement supersedes
all prior agreements and understandings between the parties with respect to such
transactions.
10.13 Specific Performance. The Hamiltons and Columbia Holdings acknowledge
that, in view of the uniqueness of Successor's business, the parties may not
have an adequate remedy at law for money damages in the event that the stock
purchase and sale contemplated hereunder have not been consummated by reason of
breach, and therefore each of the Hamiltons and Columbia Holdings agrees that
the other shall be entitled to specific enforcement of the terms hereof with
respect to the consummation of the purchase and sale of the Hamilton Shares in
addition to any other remedy to which it may be entitled, at law or in equity.
In addition, Hamilton acknowledges that breach of the obligations imposed by
Section 4 of this Agreement will cause irreparable harm to Successor and, in the
event that Hamilton fails to abide by those obligations, Successor will be
entitled to specific performance, including the issuance of a temporary
restraining order or preliminary injunction, in addition to any other remedy to
which it may be entitled, at law or in equity.
10.14 Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expense.
10.15 Integrated Agreement. Annex A which is attached hereto is hereby
incorporated into this Agreement by this reference.
IN WITNESS WHEREOF, Xxxxxxxx Xxxxxxxx, Xxxxxxxx Xxxxxx and the
Hamiltons have personally signed or caused this Agreement to be signed by their
respective duly authorized officers as of the date first above written.
Columbia Holdings: COLUMBIA SPORTSWEAR HOLDINGS LIMITED
By:XXXXXXX X. XXXXX
-----------------------------------------
Xxxxxxx X. Xxxxx,
Chairman and Chief Executive Officer
By:XXXXXXXX XXXXX
-----------------------------------------
Xxxxxxxx Xxxxx, Vice Chairman
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Columbia Canada: COLUMBIA SPORTSWEAR CANADA LIMITED
By:XXXXXXX X. XXXXX
-----------------------------------------
Xxxxxxx X. Xxxxx,
Chairman and Chief Executive Officer
By:XXXXXXXX XXXXX
-----------------------------------------
Xxxxxxxx Xxxxx, Vice Chairman
The Hamiltons:
XXXXXXX XXXXXXXX
--------------------------------------------
Xxxxxxx Xxxxxxxx
XXXXXXX XXXXXXXX
------------------------------------
Xxxxxxx Xxxxxxxx,
in trust for Xxxxxxxxx X. Xxxxxxxx
GUARANTY
Columbia Sportswear Company, an Oregon corporation and the holder of
79 percent of the capital stock of Columbia Sportswear Holdings Limited, hereby
guarantees punctual payment of all amounts required to be paid for the Xxxxxxxx
Shares pursuant to Section 1 of the Agreement above.
COLUMBIA SPORTSWEAR COMPANY
ByGERTRUDE XXXXX
------------------------------------------
Xxxxxxxx Xxxxx, Chairman
ByTIMOTHY X. XXXXX
------------------------------------------
Xxxxxxx X. Xxxxx, President
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ANNEX A
Name of Share
Shareholder Ownership
Xxxxxxx Xxxxxxxx 1,500
Xxxxxxx Xxxxxxxx,
in trust for Xxxxxxxxx X. Xxxxxxxx 1,000
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