Exhibit 10.24
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GOLFSMITH INTERNATIONAL HOLDINGS, INC.
and
ATLANTIC EQUITY PARTNERS III, L.P.
EXCHANGE AGREEMENT
Dated as of _____ , 2004
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K&S DRAFT - June 28, 2004
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT, dated as of _____ , 2004 (the "Agreement"), by
and among Golfsmith International Holdings, Inc. (the "Company"), a Delaware
corporation, and Atlantic Equity Partners III, L.P. ("AEP III"), a Delaware
limited partnership.
WITNESSETH:
WHEREAS, AEP III beneficially owns $[___________] principal amount of
the outstanding 8.375% Senior Secured Notes due 2009 of Golfsmith International,
Inc. (the "Notes"); and
WHEREAS, AEP III and the Company desire to monetize AEP III's interest
in and to the Notes in order for such funds to be available for use by the
Company;
WHEREAS, AEP III cannot effectively sell the Notes directly to the
public and achieve the desired business result, and consequently AEP III and the
Company desire for AEP III to exchange the Notes in return for shares (the
"Shares")of the common stock of the Company (the "Exchange"), on the terms
described in this Agreement, whereupon the Company shall immediately register
and sell the Notes under the Securities Act of 1933 (as amended, the "Act"); and
WHEREAS, the Board of Directors of the Company has previously
determined that the Exchange is fair to and in the best interests of the Company
and its stockholders;
NOW, THEREFORE, in consideration of AEP III's tender of the Notes to
the Company, and of the mutual promises set forth herein, the parties hereto
agree as follows:
ARTICLE I
EXCHANGE OF NOTES
Section 1.1 Exchange of Notes. The parties hereto agree that the Notes
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held by AEP III shall be valued at $_______ in the aggregate for purposes of the
Exchange. Simultaneously with the execution and delivery hereof, AEP III shall
exchange with the Company the Notes held by AEP III in return for newly issued
Shares valued at [$ ] per share (the "Per Share Value") for, subject to the
following sentence, a total of _______ Shares, such Shares to be issued by the
Company in consideration for the tendering of the Notes held by AEP III. The
number of Shares to be issued and delivered to AEP III pursuant to the Exchange
shall be reduced pursuant to
Section 2.2 and Section 2.4 hereof.
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ARTICLE II
REGISTRATION AND SALE OF NOTES
Section 2.1 Registration and Sale of Notes. The parties hereby agree
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that immediately following the Exchange, the Company shall register, or cause to
be registered for sale, and shall sell or caused to be sold, the Notes to the
public (the "Transaction").
Section 2.2 Transaction Expenses. The parties hereby agree that AEP III
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shall be responsible for all the fees and expenses incidental to the
Transaction, including attorneys' fees and any expenses with regard to the
filing of the registration statement and offering of the Notes, as identified on
Schedule 2.2 hereof (the "Transaction Expenses"). The Transaction Expenses shall
be paid out of the proceeds of the Transaction and the number of Shares issued
to AEP III pursuant to Section 1.1 shall be reduced by a number of Shares
calculated by dividing the Transaction Expenses by the Per Share Value.
Section 2.3 Tax Treatment. The parties hereby agree that, for United
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States federal income tax purposes, (i) AEP III shall be deemed to have retained
beneficial ownership of the Notes and the Company shall be deemed to have sold
the Notes on behalf of AEP III and (ii) AEP III shall report any gain from the
Transaction as though it had sold the Notes directly. Any taxes of either AEP
III or any of its partners resulting from the Transaction shall be paid out of
the proceeds of the Transaction, with the portion of such proceeds used to pay
such taxes as described in Section 2.4 below, treated as being retained by AEP
III and the remainder of such proceeds (net of expenses) treated as being
contributed to the Company.
Section 2.4 Return of Cash. Immediately following the Transaction, the
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Company shall return to AEP III an amount of cash sufficient (as reasonably
determined by AEP III) for AEP III or its partners, as applicable, to pay taxes
on the gain from the Transaction. The number of Shares issued to AEP III
pursuant to Section 1.1 hereof shall be reduced by a number of Shares calculated
by dividing such taxes paid by the Per Share Value.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Company.
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The Company represents and warrants as follows:
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(a) Organization and Authority of the Company. The Company is a corporation
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duly organized and validly existing under the laws of Delaware. The performance
of this Agreement by the Company will not conflict with or result in any breach
of law, statute, ordinance, regulation or decree of any governmental, regulatory
or judicial body or entity. The Company has full capacity, power and authority
to make, execute, deliver and perform this Agreement and the transactions
contemplated hereby. When this Agreement is executed and delivered by the
Company, it shall constitute a valid and binding obligation of the Company in
accordance with its terms.
(b) Authorization. All corporate action on the part of the Company and its
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directors, officers and stockholders necessary for the authorization, execution,
delivery and performance of all obligations of the Company under this Agreement
and any document contemplated hereby, for the authorization, issuance and
delivery by the Company of the Shares has been taken prior to the date hereof.
The Shares, when issued, sold and delivered in compliance with the provisions of
this Agreement, will be validly issued, fully paid and nonassessable, will be
free of all mortgages, pledges, liens, leases, encumbrances and charges
("Encumbrances") and will not be subject to any preemptive rights, rights of
first refusal or redemption rights, other than as provided the Stockholders'
Agreement (the "Stockholders Agreement"), dated as of October 15, 2002 (as
amended) among the Company, AEP III and the other stockholders of the Company.
(c) No Consents Required. Other than with respect to the Stockholders
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Agreement, no consent, approval, order or authorization of, or other action by,
or registration, declaration or filing with, any governmental authority or
agency or other person on the part of the Company is required in connection with
the execution, delivery or performance of this Agreement.
(d) No Legal Proceedings. There are no actions, suits, investigations or
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legal proceedings instituted, pending or, to the knowledge of the Company,
threatened against the Company which are material or would adversely affect the
Company's ability to perform its obligations under the Agreement.
Section 3.2 Representations and Warranties of AEP III.
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(a) Authority of AEP III. AEP III is a limited partnership duly formed and
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validly existing under the laws of the state of Delaware. The performance of
this Agreement by AEP III will not conflict with or result in any breach of any
law, statute, ordinance, regulation or decree of any governmental, regulatory or
judicial body or entity. AEP III has full capacity, power and authority to make,
execute, deliver and perform this Agreement and the transactions contemplated
hereby and thereby. When this Agreement is executed and delivered by AEP III, it
shall constitute a valid and binding obligation of AEP III in accordance with
its terms.
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(b) No Legal Proceedings. There is no action, suit, claim, or proceeding,
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pending, or to AEP III's knowledge, threatened against, AEP III which would
adversely affect AEP III's ability to perform its obligations under this
Agreement.
(c) No Consents Required. No consent, approval, order or authorization of,
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or other action by, or registration, declaration or filing with, any
governmental authority or agency or other person on the part of AEP III is
required in connection with the execution, delivery or performance of this
Agreement.
(d) Investment. AEP III is acquiring the Shares for its own account, not as
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a nominee or agent, and not with a view to, or for sale in connection with, any
distribution thereof. AEP III understands that the Shares received in the
Exchange have not been registered under the Act, or any state securities laws.
AEP III is an "accredited investor" within the meaning of Regulation D
promulgated by the Securities and Exchange Commission under the Act. AEP III
understands that no public market now exists for any securities issued by the
Company, and that the Company has not made any assurances that a public market
for such securities will ever exist.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Survival of Provisions. The representations and warranties of
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the Company and AEP III made herein shall survive the date hereof and the
consummation of the transactions contemplated herein.
Section 4.2 Modification; Amendments. No amendment or modification of any
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provision of this Agreement shall be effective unless signed in writing by or on
behalf of the Company and AEP III.
Section 4.3 Further Action. Each of the parties hereto shall execute such
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documents, certificates, instruments and other papers as may be reasonably
required or desirable to carry out the provisions hereof and the transactions
contemplated hereby.
Section 4.4 Notices. All notices, demands or requests provided for or
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permitted to be given pursuant to this Agreement must be in writing and shall be
deemed to have been duly given or delivered if delivered personally or sent by
telegram or telecopy (receipt confirmed); or the next business day after being
sent by overnight delivery service; or three (3) days after being mailed by
registered or certified mail, return receipt requested, with first class postage
prepaid to:
If to the Company:
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Golfsmith International Holdings, Inc.
00000 Xxxxx XX-00
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to AEP III:
Atlantic Equity Partners III, L.P.
c/o First Atlantic Capital, Ltd.
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
4.5 Binding Effect; Assignment. This Agreement shall be binding upon and
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inure to the benefit of the parties hereto and their respective successors and
assigns. This Agreement may not be assigned without the prior consent of the
non-assigning party.
4.6 Governing Law. This Agreement shall be governed by, and construed and
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enforced in accordance with, the laws of the State of Delaware (without regard
to its rules of conflicts of laws).
4.7 Headings and Titles. The headings used in this Agreement are for
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convenience of reference only and shall not be deemed to alter or affect any
provisions of this Agreement.
4.8 Counterparts. This Agreement may be executed in counterparts each of
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which shall be deemed an original, but all of which together shall constitute
one and the same instruments.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
GOLFSMITH INTERNATIONAL HOLDINGS, INC.
By:
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Name:
Title:
ATLANTIC EQUITY PARTNERS III, L.P.
By: Atlantic Equity Associates III, L.P.,
its General Partner
By: Atlantic Equity Associates III, L.L.C.,
its General Partner
By: Buaron Capital Corporation III, L.L.C.,
its Managing Member
By:
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Name: Xxxxxxx Xxxxxx
Title: President
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