STANDSTILL AGREEMENT
THIS STANDSTILL AGREEMENT (this "Agreement") is made and
entered into as of April 23, 1999 by and between Rawlings
Sporting Goods Company, Inc., a Delaware corporation (the
"Company"), Xxxxxx X. Xxxxxxx ("Xxxxxxx"), Xxxxxxx Capital
Management Company, Inc., a Georgia corporation ("Xxxxxxx
Capital") and The Kaleidoscope Fund, L.P. ("Kaleidoscope").
BACKGROUND:
On April 9, 1999, Xxxxxxx, Xxxxxxx Capital and Kaleidoscope
filed a Form 13G/A with the Securities and Exchange Commission
(the "SEC") reflecting purchases (the "Additional Xxxxxxx
Purchases") of additional shares of the Company's Common Stock,
par value $.01 per share (the "Common Stock"), and disclosing
that Xxxxxxx, Xxxxxxx Capital and Kaleidoscope were the
beneficial owners of a total of 1,277,400 shares of Common Stock,
or 16.4% of the outstanding shares of Common Stock. Based upon
information publicly available to the Company, including reports
filed by Bull Run Corporation, a Georgia corporation ("Bull
Run"), Xxxxxxx, Xxxxxxx Capital and Kaleidoscope with the SEC
under the Exchange Act, the Company believes that Bull Run is an
Associate (as defined in the Rights Plan) of Xxxxxxx and that,
unless the Company takes action to amend the Rights Agreement,
dated July 1, 1994, between the Company and ChaseMellon
Shareholder Services, L.L.C., as amended (the "Rights Plan"),
based on the number of shares of Common Stock beneficially owned
by Bull Run, Xxxxxxx, Xxxxxxx Capital and Kaleidoscope,
collectively, that Xxxxxxx, Xxxxxxx Capital and Kaleidoscope have
or will become Acquiring Persons under the Rights Plan and that a
Stock Acquisition Date (as defined in the Rights Plan) has
occurred or will occur.
The Company, Xxxxxxx Capital, Xxxxxxx and Kaleidoscope
desire to enter into this Standstill Agreement and to amend the
Rights Plan to reflect their mutual agreements and understandings
with respect thereto as set forth herein.
AGREEMENT:
IN CONSIDERATION OF the foregoing, the mutual covenants and
agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
ARTICLE 1.
DEFINITIONS AND CONSTRUCTION
Section 1.1. Certain Definitions. As used in this
Agreement, the following terms shall have the meanings specified
below:
"Affiliate" shall have the meaning set forth in Rule 12b-2
of the General Rules and Regulations under the Exchange Act;
provided, however, that, for purposes of this Agreement, Bull Run
shall not be deemed an Affiliate of Xxxxxxx, Xxxxxxx Capital or
Kaleidoscope.
"Beneficial Owner" (including, with its correlative
meanings, "Beneficially Own" and "Beneficial Ownership"), with
respect to any securities, shall mean any Person which has, or
any of whose Affiliates has, directly or indirectly, "beneficial
ownership" of (as determined pursuant to Rule 13d-3 of the
General Rules and Regulations of the Exchange Act as in effect on
the date hereof) such securities.
"Control Transaction" shall mean an agreement by the Company
to be a party to (a) any consolidation or merger of the Company
in which the Company is not the continuing or surviving
corporation or pursuant to which shares of the Company's Common
Stock would be converted into cash, securities or other property,
other than a merger of the Company in which the holders of the
Company's Common Stock immediately prior to the merger have the
same proportionate ownership of common stock of the surviving
corporation immediately after the merger or (b) any sale, lease,
exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, the Common
Stock or assets of the Company.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Group" shall mean any group within the meaning of Section
13(d)(3) of the Exchange Act as in effect on the date hereof.
Section 1.2. Interpretation and Construction of this
Agreement. The definitions in Section 1.1 shall apply equally to
both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words
"include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation." All references
herein to Articles, Sections and Schedules shall be deemed to be
references to Articles and Sections of, and Schedules to, this
Agreement unless the context shall otherwise require. The
headings of the Articles and Sections are inserted for
convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
Unless the context shall otherwise require or provide, any
reference to any agreement or other instrument or statute or
regulation is to such agreement, instrument, statute or
regulation as amended and supplemented from time to time (and, in
the case of a statute or regulation, to any successor provision).
ARTICLE 2.
STANDSTILL PROVISIONS AND AGREEMENT TO DIVEST
Section 2.1 Acquisition Restrictions. Xxxxxxx, Xxxxxxx
Capital and Kaleidoscope agree that they will not, directly or
indirectly, acquire, offer to acquire, or agree to acquire, by
purchase or otherwise, Beneficial Ownership of any additional
shares of Common Stock on and following the date of this
Agreement.
Section 2.2 Agreement to Divest. Xxxxxxx, Xxxxxxx
Capital and Kaleidoscope agree that they will sell into the open
market, over a period of (4) four months, at least 305,000 shares
of Common Stock.
Section 2.3 Tender and Vote Obligation. In the event
that (i) the Board of Directors of the Company (or any committee
of the Board of Directors of the Company) shall determine to
engage in, and recommends, a Control Transaction, then Xxxxxxx,
Xxxxxxx Capital and Kaleidoscope will vote all of the shares of
Common Stock they are entitled to vote in favor of such Control
Transaction and (b) sell all of their shares of Common Stock in
such Control Transaction, provided that this Section 2.3 will not
prohibit Xxxxxxx, Xxxxxxx Capital and Kaleidoscope from selling
shares of Common Stock into the open market prior to the
consummation of any such Control Transaction.
Section 2.4. Other Standstill Covenants. Except as
required or contemplated by Section 2.3 hereof, Xxxxxxx, Xxxxxxx
Capital and Kaleidoscope agree that they will not, and they will
cause each of their respective Affiliates not to, directly or
indirectly, alone or in concert with others, take any of the
actions set forth below:
(a) effect, seek, offer, propose (whether publicly or
otherwise) or cause or participate in, or assist any other
Person to effect, seek, offer or propose (whether publicly
or otherwise) or participate in:
(i) any acquisition of Beneficial Ownership of
Common Stock or other equity interests in the Company
which would result in a breach of Section 2.1 of this
Agreement;
(ii) any tender or exchange offer, merger,
consolidation, share exchange or business combination
involving the Company or any material portion of its
business or any purchase of all or any substantial part
of the assets of the Company;
(iii) any recapitalization, restructuring,
liquidation, dissolution or other extraordinary
transaction with respect to the Company or any material
portion of its business; or
(iv) any "solicitation" of "proxies" (as such
terms are used in the proxy rules of the SEC) with
respect to the Company or any action resulting in such
Person becoming a "participant" in any "election
contest" (as such terms are used in the proxy rules of
the SEC) with respect to the Company;
(b) propose any matter for submission to a vote of
stockholders of the Company;
(c) form, join or participate in a Group with respect
to the Common Stock (other than any Group whose members
consist solely of Xxxxxxx, Xxxxxxx Capital, Kaleidoscope and
any of their Affiliates);
(d) grant any proxy with respect to the Common Stock
to any Person not designated by the Company;
(e) deposit any Common Stock in a voting trust or
subject any Common Stock to any arrangement or agreement
with respect to the Voting of such Common Stock or other
agreement having similar effect;
(f) execute any written stockholder consent with
respect to the Company;
(g) take any other action to seek to affect the
control of the management or Board of Directors of the
Company; or
(h) enter into any discussions, negotiations,
arrangements or understandings with any Person other than
the Company, Xxxxxxx, Xxxxxxx Capital, Kaleidoscope and
their respective Affiliates, directors, officers, employees,
agents or advisors with respect to any of the foregoing, or
advise, assist, encourage or seek to persuade others to take
any action with respect to any of the foregoing.
ARTICLE 3.
VOTING PROVISIONS
Section 3.1. Voting of the Common Stock. Xxxxxxx, Xxxxxxx
Capital and Kaleidoscope will vote all of the shares of Common
Stock they are entitled to vote "for" the slate of directors
nominated by the Board of Directors of the Company at the next
Annual Meeting of Stockholders of the Company to be held in
January 2000 or at any adjournment or postponement thereof.
ARTICLE 4.
TERM AND TERMINATION
Section 4.1. Term. The provisions of this Agreement shall
terminate on the date one year from the date hereof.
Section 4.2. Termination by Xxxxxxx, Xxxxxxx Capital and
Kaleidoscope. The provisions of this Agreement shall terminate
in the event of a breach by the Company of any of the terms of
this Agreement, if the Company fails to cure such material breach
within fifteen (15) days after its receipt of notice of such
breach from Xxxxxxx, Xxxxxxx Capital and Kaleidoscope.
Section 4.3. Termination by the Company and Option to
Purchase Shares. In the event of a material breach by Xxxxxxx,
Xxxxxxx Capital or Kaleidoscope of any of the terms of this
Agreement, if Xxxxxxx, Xxxxxxx Capital or Kaleidoscope fails to
cure such breach within fifteen (15) days after its receipt of
notice of such breach from the Company, the Company, at its
option, may within five (5) days after the lapse of such 15 day
period (such five day period referred to herein as the "Exercise
Period") (i) terminate the provisions of this Agreement by
providing notice of termination to Xxxxxxx, Xxxxxxx Capital and
Kaleidoscope, (ii) exercise the option to purchase for cash all
of the Common Stock then held by Xxxxxxx, Xxxxxxx Capital,
Kaleidoscope and their respective Affiliates at a 20% discount to
the last reported sales price of the Company's Common Stock on
the date (the "Option Date") of the expiration of the fifteen day
period described above, or (iii) undertake both (i) and (ii),
above. The Company may exercise the option described in clause
(ii) above during the Exercise Period by providing Xxxxxxx,
Xxxxxxx Capital and Kaleidoscope with notice of exercise, at
which time Xxxxxxx, Xxxxxxx Capital and Kaleidoscope shall
promptly deliver to the Company a statement of the number of
shares of Common Stock held by them and their respective
Affiliates, and the Company shall deliver payment to Xxxxxxx,
Xxxxxxx Capital and Kaleidoscope against delivery of the
certificates for such shares within ten (10) days after receipt
of such statement. The Company's option set forth in this
Section 4.3 shall expire at 5:00 p.m. Central Time on the last
day of the Exercise Period.
ARTICLE 5.
AMENDMENT OF RIGHTS PLAN
Section 5.1. Amendment of Rights Plan. Simultaneously
with the execution and delivery of this Agreement, the Company
shall enter into an amendment to the Rights Plan substantially in
the form set forth in Exhibit A.
ARTICLE 6.
MISCELLANEOUS PROVISIONS
Section 6.1. Expenses. Xxxxxxx, Xxxxxxx Capital and
Kaleidoscope shall, jointly and severally, reimburse the Company
for up to $25,000 of all documented reasonable legal fees and
expenses incurred by the Company solely in connection with the
preparation and negotiation of this Agreement and the Amendment
of Standstill Agreement, by and between the Company and Bull Run,
and the actions taken to prevent the Rights (as defined in the
Rights Plan) from being triggered as a result of the Additional
Xxxxxxx Purchases, including without limitation the amendments of
the Rights Plan for such purpose, but only to the extent such
fees and expenses exceed $25,000.
Section 6.2. Press Releases. Unless required by
applicable law, Xxxxxxx, Xxxxxxx Capital and Kaleidoscope will
not, and they will cause their respective Affiliates to not, make
any press release, public announcement or other communication
with respect to this Agreement and the effect of the Additional
Xxxxxxx Purchases under the Rights Plan, without the prior
written consent of the Chairman of the Board of the Company, it
being understood that Xxxxxxx, Xxxxxxx Capital and Kaleidoscope
may have to file a Statement on Schedule 13D (a "Schedule 13D")
with the SEC with respect to their ownership of Common Stock and
this Agreement, and they agree to provide any draft of such
Schedule 13D to the Company and its counsel for review and
comment prior to its filing.
Section 6.3. Notices. All notices and other
communications required or permitted by this Agreement shall be
made in writing and shall be deemed delivered when delivered in
person, transmitted by facsimile, or three days after it has been
sent by mail, as follows:
The Company: Rawlings Sporting Goods Company, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxxx X'Xxxx
Facsimile No.: (000) 000-0000
with a copies to: Xxxxxxx, Mag & Fizzell, P.C.
1201 Walnut, Suite 2800
P.O. Box 419251
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
Xxxxxxx, Xxxxxxx Xxxxxxx Capital Management, Inc.
Capital and 0000 Xxxxxxxxx Xxxx X.X.
Kaleidoscope: Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
with a copy to: Xxxxxxx, Carton & Xxxxxxx
Quaker Tower, Suite 3400
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx, Xx., Esq.
Facsimile No.: (000) 000-0000
The Parties shall promptly notify each other in the manner
provided in this Section 6.3 of any change in their respective
addresses. A notice of change of address shall not be deemed to
have been given until received by the addressee. Communications
by telecopier also shall be sent concurrently by mail, but shall
in any event be effective as stated above.
Section. 6.4. Assignment. No Party will assign this
Agreement or any rights, interests or obligations hereunder, or
delegate performance of any of its obligations hereunder, without
the prior written consent of each other Party.
Section 6.5. Entire Agreement. This Agreement, including
the Exhibits attached hereto, embodies the entire agreement and
understanding of the Parties in respect of the subject matter
contained herein, provided that this provision shall not abrogate
any other written agreement between the Parties executed
simultaneously with this Agreement. This Agreement supersedes
all prior agreements and understandings between the Parties with
respect to such subject matter.
Section 6.6. Waiver, Amendment, etc. This Agreement may
not be amended or supplemented, and no waivers of or consents to
departures from the provisions hereof shall be effective, unless
set forth in a writing signed by, and delivered to, all the
Parties. No failure or delay of any Party in exercising any
power or right under this Agreement will operate as a waiver
thereof, nor will any single or partial exercise of any right or
power, or any abandonment or discontinuance of steps to enforce
such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power.
Section 6.7. Binding Agreement; No Third Party
Beneficiaries. This Agreement will be binding upon and inure to
the benefit of the Parties and their successors and permitted
assigns. Nothing expressed or implied herein is intended or will
be construed to confer upon or to give to any third party any
rights or remedies by virtue hereof.
Section 6.8. Governing Law. This Agreement shall be
governed by the laws of the State of Delaware, without regard to
conflict or choice of laws principles.
Section 6.9. Severability. The invalidity or
unenforceability of any provision hereof in any jurisdiction will
not affect the validity or enforceability of the remainder hereof
in that jurisdiction or the validity or enforceability of this
Agreement, including that provision, in any other jurisdiction.
To the extent permitted by applicable law, each Party waives any
provision of applicable law that renders any provision hereof
prohibited or unenforceable in any respect. If any provision of
this Agreement is held to be unenforceable for any reason, it
shall be adjusted rather than voided, if possible, in order to
achieve the intent of the Parties to the extent possible.
Section 6.10. Counterparts. This Agreement may be executed
in one or more counterparts each of which when so executed and
delivered will be deemed an original but all of which will
constitute one and the same Agreement.
Section 6.11. Remedies. In addition to any other remedies
which may be available to the Company (including any remedies
which the Company may have at law or in equity): Xxxxxxx, Xxxxxxx
Capital and Kaleidoscope agree that the Company shall have no
obligation to honor transfers of Common Stock to Xxxxxxx, Xxxxxxx
Capital or Kaleidoscope or any of their Affiliates which would
cause any of Xxxxxxx, Xxxxxxx Capital and Kaleidoscope and their
Affiliates to Beneficially Own Common Stock in violation of this
Agreement, any such transfers shall be void and of no effect, and
the Company shall be entitled to instruct any transfer agent or
agents to refuse to honor such transfers.
IN WITNESS WHEREOF, the Company Xxxxxxx Capital and
Kaleidoscope have caused their respective duly authorized
officers to execute this Agreement and Xxxxxxx has executed this
Agreement as of the day and year first above written.
RAWLINGS SPORTING GOODS
COMPANY, INC.
By: /s/ Xxxxxxx X. X'Xxxx
Name: Xxxxxxx X. X'Xxxx
Title: Chairman/CEO
XXXXXXX CAPITAL MANAGEMENT,
INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
THE KALEIDOSCOPE FUND, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
THIRD AMENDMENT TO RIGHTS AGREEMENT
This Third Amendment to Rights Agreement (the "Amendment")
is entered into as of April 23, 1999, by and between Rawlings
Sporting Goods Company, Inc., a Delaware corporation (the
"Company"), and ChaseMellon Shareholder Services, L.L.C. (the
"Rights Agent").
WITNESSETH:
WHEREAS, the Company and the Rights Agent are parties to
that certain Rights Agreement dated July 1, 1994, as amended on
November 21, 1997, and April 19, 1999 (the "Agreement");
WHEREAS, the Company desires to amend the Agreement on the
terms and conditions herein set forth and the Company is hereby
directing the Rights Agent to enter into this Amendment in
accordance with Section 26 of the Agreement; and
WHEREAS, the execution and delivery of this Amendment has
been duly authorized by the Board of Directors of the Company.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to
such terms in the Agreement, as amended hereby.
2. Amendments to Agreement.
2.1 Section 1 is amended by adding thereto a new
subsection (s) which shall read as follows:
"Bull Run" shall mean Bull Run Corporation, a
Georgia corporation.
2.2 Section 1 is amended by adding thereto a new
subsection (t) which shall read as follows:
"Xxxxxxx" shall mean Xxxxxxx Capital Management
Company, Inc., Xxxxxx X. Xxxxxxx and The Kaleidoscope
Fund, L.P., individually and collectively.
2.2 A new Section 34 shall be added to the Rights
Agreement which shall read as follows:
Section 34. Exception. Notwithstanding any
provision of this Agreement to the contrary, neither a
Distribution Date, Triggering Event nor a Stock
Acquisition Date shall be deemed to have occurred,
neither Bull Run nor Xxxxxxx nor any of their
Affiliates or Associates shall be deemed to have become
an Acquiring Person, and no holder of any Rights shall
be entitled to exercise such Rights under, or be
entitled to any rights pursuant to, any of Sections
3(a), 7(a), 11(a) or 13 of this Agreement, as a result
of the purchases of Common Shares disclosed in the
Schedule 13G/A, dated April 9, 1999, filed by Xxxxxxx
with the Securities and Exchange Commission, but only
if and for so long as Bull Run has not breached in any
material respect, as determined in good faith by the
Board of Directors of the Company, the terms of its
Standstill Agreement with the Company (as the same may
be amended from time to time). Unless and until the
Rights Agent shall have received written notice to the
contrary from the Company, the Rights Agent shall be
fully protected and incur no liability in always
assuming that neither Bull Run nor Xxxxxxx nor any of
their Affiliates or Associates are Acquiring Persons.
3. Reference to and Effect on the Agreement.
3.1 Upon the effectiveness of this Amendment, each
reference in the Agreement to "this Agreement," "hereunder,"
"hereof," and "herein" shall mean and be a reference to the
Agreement as amended hereby.
3.2 Except as specifically amended above, all of the
terms, conditions and covenants of the Agreement shall
remain unaltered and in full force and effect and shall be
binding upon the parties thereto in all respects and are
hereby ratified and confirmed.
4. Choice of Law. This Amendment shall be construed in
accordance with the internal laws (and not the law of conflicts)
of the State of Delaware, but giving effect to applicable federal
laws.
5. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose.
6. Counterparts. This Amendment may be executed in one or
more counterparts each of which when so executed and delivered
will be deemed an original but all of which will constitute one
and the same Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the day and year first above
written.
RAWLINGS SPORTING GOODS
COMPANY, INC.
By: /s/ Xxxxxxx X. X'Xxxx
Name: Xxxxxxx X. X'Xxxx
Title: Chairman/CEO
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
