EXHIBIT 10.1
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
DATED AS OF JUNE __, 2002
By and Among
GREEN EQUITY INVESTORS, L.P.,
XXXXXX X. XXXXXX,
XXXXXX X. XXXXXX,
and
BIG 5 SPORTING GOODS CORPORATION
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this "Agreement") is
entered into as of June __, 2002, by and among Green Equity Investors, L.P., a
Delaware limited partnership ("GEI"), Xxxxxx X. Xxxxxx ("XX Xxxxxx"), Xxxxxx X.
Xxxxxx ("XX Xxxxxx" and together with XX Xxxxxx, the "Millers") and Big 5
Sporting Goods Corporation (formerly known as Big 5 Holdings Corp.), a Delaware
corporation (the "Corporation"), with respect to the following facts and
circumstances:
A. The Corporation, GEI and the Millers are parties to that certain
Stockholders Agreement dated as of November 13, 1997 (the "Prior Agreement") and
GEI and the Company (or predecessors thereto) are parties to various agreements
relating to registration of the Company's securities (collectively, the
"Registration Rights Agreements").
B. The Corporation currently contemplates consummating an initial public
offering (the "IPO") of shares of its common stock, par value $0.01 per share
(the "Common Stock").
C. The Corporation, GEI and the Millers desire to amend and restate the
Prior Agreement and to clarify the application of the Registration Rights
Agreements effective upon the consummation of the IPO.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
Definitions
1.1 Definitions. In addition to certain terms that are defined
elsewhere herein, as used in this Agreement, the following definitions shall
apply:
1.1.1 "Affiliate" means, with respect to any Person, any
other Person (other than the Corporation) directly or indirectly, through one or
more intermediaries, controlling, controlled by or under common control with any
such Person and, when used with reference to any natural Person, shall also
include such Person's spouse and dependent children sharing the same household
and trusts for the benefit of any of the foregoing Persons. The term "control"
(including the terms "controlling," "controlled by" and "under common control
with") means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities of a Person, by contract or otherwise. The term
Affiliate shall not be understood to apply to any of the limited partners of GEI
solely as the result of their status as such.
1.1.2 "Exchange Act" means the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder.
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1.1.3 "Person" means an association, a corporation, an
individual, a partnership, a limited liability company or limited liability
partnership, a trust or any other entity, association or organization.
1.1.4 "Securities Act" means the Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder.
ARTICLE 2
Board Representation and Voting Agreement
2.1 Board of Directors.
2.1.1 Board Composition. So long as GEI beneficially
owns at least 5% of the outstanding shares of Common Stock, GEI shall be
entitled to designate one (1) member for nomination to the Board of Directors of
the Corporation. The member of the Board of Directors of the Corporation
designated by GEI is referred to herein as the "GEI Nominee." The Board of
Directors of the Corporation will nominate the GEI Nominee for election to such
Board of Directors as part of the slate of directors nominated and recommended
for election to the Board of Directors. If the Board of Directors of the
Corporation raises a reasonable objection with GEI as to a particular nominee,
GEI will be permitted to name another nominee as to which there is not a
reasonable objection. The Millers shall, and shall cause all Affiliates over
whom they have control to, and shall use their best efforts to cause any of
their Affiliates whom they do not control to, vote any and all shares of Common
Stock beneficially owned by them for the GEI Nominee.
2.1.2 Vacancies; Action by Board of Directors. If a
vacancy is created on the Board of Directors of the Corporation by reason of the
death, disability, removal or resignation of the GEI Nominee, GEI, by written
notice to the Corporation, shall be entitled to designate a new GEI Nominee to
fill such vacancy, and the Corporation shall cause the remaining directors to
meet within ten (10) business days after receipt of such notice for the purpose
of electing the designated new nominee to fill such vacancy, subject to the
provisions of Section 2.1.1 as to reasonable objections. If GEI fails to
designate a representative to fill a directorship pursuant to the terms of this
Article 2 within thirty (30) days of such date that the GEI Nominee ceased to so
serve, the election of a person to such directorship shall be accomplished in
accordance with the Corporation's Certificate of Incorporation, Bylaws and
applicable law; provided that GEI will again have the ability to nominate a GEI
Nominee as provided in Section 2.1.1 at the time other Directors are next
nominated for election by the Corporation's stockholders.
2.2 Voting of Shares; Representation at Meetings. During the
term of this Agreement, GEI shall vote and cause to be voted all shares of
Common Stock beneficially owned by GEI and Affiliates it controls and shall use
its best efforts to cause Affiliates it does not control to so vote, for XX
Xxxxxx and XX Xxxxxx at each meeting of the stockholders of the Company at which
either or both of them are nominees to the Board of Directors of the
Corporation. GEI shall cause all shares of Common Stock beneficially owned by
GEI and Affiliates it controls, and shall use its best efforts to cause
Affiliates it does not control, to be represented, in person or by proxy, at all
meetings of holders of
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shares of Common Stock, so that such shares may be counted for the purpose of
determining the presence of a quorum at such meetings.
ARTICLE 3
Transfer Restrictions
3.1 Sale or Transfer of Shares. During the term of this
Agreement, GEI will not, and will not permit Affiliates it controls and shall
use its best efforts to cause Affiliates it does not control to, directly or
indirectly, sell, pledge, encumber or otherwise transfer, or agree to sell,
pledge, encumber or otherwise transfer, any shares of Common Stock, except in
accordance with the Securities Act (including Rule 144 and any other applicable
exemption, or pursuant to the registration thereof).
3.2 Registration Rights. GEI, the Millers and the Corporation
agree that the provisions of this Agreement incorporate by reference specified
provisions and otherwise supersede the Registration Rights Agreements. From and
after the effective date of this Agreement, GEI shall have the registration
rights set forth in Section 4 of that certain Stock Subscription Agreement dated
as of September 25, 1992 between GEI and Big 5 Corporation (the "1992
Agreement"); provided that Holders (as defined in the 1992 Agreement) with 8% or
more of the outstanding Common Stock will be entitled to request such
registration and such request must cover 8% or more of the outstanding Common
Stock. The registration provided for in Section 4(a) of the 1992 Agreement will
not be considered to have been effected, however, if any Holder shall have been
prevented from including at least 50% of the Common Stock such Holder requests
to have included in the requested registration. The remaining provisions of
Section 4 shall continue to apply, provided that the Holders may request that
each registration pursuant to Section 4(a) remain effective for no less than 180
days.
ARTICLE 4
Representations and Warranties
4.1 Representations and Warranties of the Corporation.
The Corporation represents and warrants to GEI and the Millers
as follows:
4.1.1 Organization. It is a corporation duly organized
and validly existing under the laws of the State of Delaware.
4.1.2 Authority. It has full corporate power and
authority to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby.
4.1.3 Binding Obligation. The execution, delivery and
performance of this Agreement by it and the consummation by it of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action on its part, and, assuming the due authorization,
execution and delivery of this Agreement by each of the other parties hereto,
this Agreement constitutes its binding obligation, enforceable against it in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
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reorganization, moratorium and other similar laws and equitable principles
relating to or limiting creditors' rights generally.
4.1.4 No Conflict. The execution, delivery and
performance of this Agreement by it and the consummation by it of the
transactions contemplated hereby will not, with or without the giving of notice
or the lapse of time or both, (i) violate any provision of law, statute, rule or
regulation to which it is subject, (ii) violate any order, judgment or decree
applicable to it, or (iii) conflict with, or result in a breach or default
under, any term or condition of its Certificate of Incorporation or Bylaws or
any material agreement or other material instrument to which it is a party or by
which it or its property is bound or affected.
4.2 Representations and Warranties of GEI. GEI represents and
warrants to the Millers and to the Corporation as follows:
4.2.1 Organization. It is a limited partnership duly
organized and validly existing under the laws of its state of organization.
4.2.2 Authority. It has full limited partnership power
and authority to execute, deliver and perform this Agreement and to consummate
the transactions contemplated hereby.
4.2.3 Binding Obligation. The execution, delivery and
performance of this Agreement by it and the consummation by it of the
transactions contemplated hereby have been duly and validly authorized by all
necessary action on its part, and, assuming the due authorization, execution and
delivery of this Agreement by each of the other parties hereto, this Agreement
constitutes its binding obligation, enforceable against it in accordance with
its terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws and equitable principles relating to or
limiting creditors' rights generally.
4.2.4 No Conflict. The execution, delivery and
performance of this Agreement by it and the consummation by it of the
transactions contemplated hereby will not, with or without the giving of notice
or the lapse of time or both, (i) violate any provision of law, statute, rule or
regulation to which it is subject, (ii) violate any order, judgment or decree
applicable to it, or (iii) conflict with, or result in a breach or default
under, any term or condition of its limited partnership agreement or equivalent
governing documents or any material agreement or other material instrument to
which it is a party or by which it or its property is bound or affected.
4.3 Representations and Warranties of the Millers. Each of the
Millers, severally and not jointly, represents and warrants to GEI and to the
Corporation as follows:
4.3.1 Authority. He has full power and authority to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby.
4.3.2 Binding Obligation. Assuming the due
authorization, execution and delivery of this Agreement by each of the other
parties hereto, this Agreement constitutes his binding obligation, enforceable
against him in accordance with its terms,
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except as may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws and equitable principles relating to or limiting
creditors' rights generally.
4.3.3 No Conflict. The execution, delivery and
performance of this Agreement by him and the consummation by him of the
transactions contemplated hereby will not, with or without the giving of notice
or the lapse of time or both, (i) violate any provision of law, statute, rule or
regulation to which he is subject, (ii) violate any order, judgment or decree
applicable to him, or (iii) conflict with, or result in a breach or default
under, any term or condition of any material agreement or other material
instrument to which he is a party or by which he or his property is bound or
affected.
ARTICLE 5
Miscellaneous
5.1 Effective Date. This Agreement shall be effective upon the
consummation of the IPO. If the IPO has not been consummated as of August 31,
2002, this Agreement shall terminate and be of no further force and effect. The
Prior Agreement and the Registration Rights Agreements shall remain in full
force and effect until this Agreement becomes effective.
5.2 Termination. This Agreement shall terminate on, and be of no
further force and effect after, the date that GEI and its Affiliates
beneficially own less than five percent (5%) of the outstanding Common Stock.
5.3 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given upon receipt if delivered personally or sent by facsimile
transmission (receipt of which is confirmed) or by courier service promising
overnight delivery (with delivery confirmed the next day) or three (3) business
days after sent by registered or certified mail (postage prepaid, return receipt
requested). Notices shall be addressed as follows:
To the Corporation: Big 5 Sporting Goods Corporation
0000 Xxxx Xx Xxxxxxx Xxxxxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx, General Counsel
Facsimile: (000) 000-0000
With a copy to: Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
To GEI: Green Equity Investors, L.P.
c/o Xxxxxxx Xxxxx & Partners, L.P.
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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Attention: Xxxxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
To the Millers: Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
c/o Big 5 Sporting Goods Corporation
0000 Xxxx Xx Xxxxxxx Xxxxxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Any party may from time to time change its address for the purpose of notices by
a similar notice specifying the new address but no such change shall be
effective as against any Person until such Person shall have actually received
it.
5.4 Specific Performance. The parties hereto agree that if any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific performance of the terms
hereof (without requirement to post bond), in addition to any and all other
remedies at law or in equity.
5.5 Amendment; Waiver. Except as provided in Section 5.10, this
Agreement may be amended, modified, supplemented or terminated only by a written
instrument signed by the Corporation, GEI and the Millers. No provision of this
Agreement may be waived orally, but only by a written instrument signed by the
party against whom enforcement of such waiver is sought. No alteration,
modification or impairment shall be implied by reason of any previous waiver,
extension of time, delay or omission in exercise, or other indulgence.
5.6 Further Assurances. Each party hereto agrees to execute any
and all further documents and writings and to perform such other actions which
may be or become necessary or expedient to effectuate and carry out this
Agreement. GEI and each of the Millers will, and will cause its or his
Affiliates it or he controls, to provide the Corporation, with the stock
certificates representing its or his or its or his Affiliates shares of Common
Stock so that such certificates may be imprinted with an appropriate legend with
regard to the terms and existence of this Agreement.
5.7 No Third-Party Benefits. None of the provisions of this
Agreement shall be for the benefit of, or enforceable by, any third-party
beneficiary.
5.8 Interpretation. For all purposes of this Agreement, except
as otherwise expressly provided, all terms defined herein include the plural as
well as the singular and the words "include," "includes" and "including" shall
be deemed in each case to be followed by the words "without limitation."
5.9 Assignability. Except as provided herein, this Agreement
shall be binding upon, inure to the benefit of, and be enforceable by, the
parties hereto and their respective successors and permitted assigns. The right
to designate a member of the Board
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of Directors of the Corporation set forth in Section 2.1 hereunder may not be
assigned or transferred.
5.10 Severability. If any provision of this Agreement is held to
be illegal, invalid or unenforceable by any court of competent jurisdiction or
as a result of future legislative action, and if the rights or obligations of
any party hereto under this Agreement will not be materially and adversely
affected thereby, (a) such provision will be fully severable, (b) this Agreement
will be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof, (c) the remaining provisions of
this Agreement will remain in full force and effect and will not be affected by
the illegal, invalid or unenforceable provision or by its severance herefrom and
(d) in lieu of such illegal, invalid or unenforceable provision, there will be
added automatically as a part of this Agreement a legal, valid and enforceable
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible.
5.11 Entire Agreement. This Agreement contains the final and
entire agreement among the parties with respect to the matters contemplated
hereby and supersedes all written or verbal representations, warranties,
commitments and other understandings prior to the date hereof, except, with
respect to the Registration Rights Agreements, as expressly herein incorporated.
No reference shall be made to any draft of this Agreement for purposes of
interpretation or resolution of ambiguity or otherwise.
5.12 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to principles of conflicts of law.
5.13 Attorneys' Fees. In any suit or proceeding arising out of
this Agreement to interpret or enforce any provision of this Agreement, the
prevailing party shall be entitled to all reasonable out-of-pocket expenses and
reasonable attorneys' fees incurred by such party in connection with such suit
or proceeding.
5.14 Captions. The descriptive headings herein are inserted for
convenience only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
5.15 Information Regarding Beneficial Ownership. GEI and each of
the Millers agrees to promptly provide to the Corporation any information or
representations that the Corporation may request regarding its or his and its or
his Affiliates' beneficial ownership of Common Stock.
5.16 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first set forth above.
GREEN EQUITY INVESTORS L.P.,
a Delaware limited partnership
By: Xxxxxxx Xxxxx & Associates
General Partner
By:
--------------------------
General Partner
------------------------------------
Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
BIG 5 SPORTING GOODS CORPORATION,
a Delaware corporation
By:
---------------------------------
Name:
Title:
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