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Exhibit 10.24
SALE PARTICIPATION AGREEMENT
June 21, 2000
Mr. G. Xxxx Xxxxx
Domaine de la Valette
St. Xxxx, Jersey JE34AA
Channel Islands
Dear Xxxx:
You have entered into a Restricted Stock Award Agreement, dated as of
June 21, 2000 (the "Restricted Stock Agreement"), between Spalding Holdings
Corporation, a Delaware corporation ("the Company"), and you relating to the
grant by the Company to you of shares of the common stock, par value $.01 per
share, of the Company ("Common Stock"). The undersigned, KKR Partners II, L.P.,
a Delaware limited partnership ("KKR Partners"), and Strata Associates, L.P., a
Delaware limited partnership ("Strata Associates"), also have purchased shares
of Common Stock and hereby agree with you as follows, effective upon such
purchase of Common Stock by you:
1. In the event that at any time KKR Partners or Strata Associates, as
the case may be, (each a "Selling Partnership") and collectively, the "Selling
Partnerships"), proposes to sell for cash or any other consideration any shares
of Common Stock owned by it, in any transaction other than a Public Offering (as
defined in the Restricted Stock Agreement) or a sale to an affiliate of KKR
Partners or Strata Associates, as the case may be, the Selling Partnership will
notify you or your Restricted Stock Estate or Participant's Trust (as such terms
are defined in Section 5 of the Restricted Stock Agreement), as the case may be,
in writing (a "Notice") of such proposed sale (a "Proposed Sale") and the
material terms of the Proposed Sale as of the date of the Notice (the "Material
Terms") promptly, and in any event not less than 15 days prior to the
consummation of the Proposed Sale and not more than 5 days after the execution
of the definitive agreement relating to the Proposed Sale, if any (the "Sale
Agreement"). If within 10 days of your or your Participant's Estate's or
Participant's Trust's, as the case may be, receipt of such Notice the Selling
Partnership receives from you or your Purchaser's Estate or Purchaser's Trust,
as the case may be, a written request (a "Request") to include Common Stock held
by you or your Participant's Estate or Participant's Trust, as the case may be,
in the Proposed Sale (which Request shall be irrevocable unless (a) there shall
be a material adverse change in the Material Terms or (b) if otherwise mutually
agreed to in writing by you or your Participant's Estate or Participant's Trust,
as the case may be, and the Selling Partnership), the Common Stock held by you
will be so included as provided herein; provided that only one Request, which
shall be executed by you or your Participant's Estate or Participant's Trust, as
the case may be, may be delivered with respect to any Proposed Sale for all
Common Stock held by you or your Participant's Estate or Participant's Trust.
Promptly after the consummation of the transactions contemplated thereby, the
Selling Partnership will furnish you, your Participant's Trust or your
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Participant's Estate with a copy of the Sale Agreement, if any. In the event
that both KKR Partners and Strata Associates propose to sell shares of Common
Stock in the Proposed Sale, the term "Selling Partnership" shall refer only to
Strata Associates and not to KKR Partners.
2. The number of shares of Common Stock which you or your Participant's
Estate or Participant's Trust, as the case may be, will be permitted to include
in a Proposed Sale pursuant to a Request will be the lesser of (a) the sum of
the number of shares of Common Stock then owned by you or your Purchaser's
Estate or Participant's Trust, as the case may be, plus all shares of Common
Stock which you are then entitled to acquire under an unexercised option to
purchase shares of Common Stock, to the extent such option is then vested or
would become vested as a result of the consummation of the Proposed Sale and (b)
the sum of the shares of Common Stock then owned by you or your Participant's
Estate or Participant's Trust, as the case may be, plus all shares of Common
Stock which you are entitled to acquire under an unexercised option to purchase
shares of Common Stock, whether or not fully vested, multiplied by a percentage
calculated by dividing the aggregate number of shares of Common Stock which KKR
Partners and Strata Associates propose to sell in the Proposed Sale by the total
number of shares of Common Stock owned by the Selling Partnership or, in the
case both KKR Partners and Strata Associates propose to sell in the Proposed
Sale, KKR Partners and Strata Associates. If one or more holders of shares of
Common Stock who have been granted the same rights granted to you or your
Purchaser's Estate or Purchaser's Trust, as the case may be, hereunder elect not
to include the maximum number of shares of Common Stock which such holders would
have been permitted to include in a Proposed Sale (the "Eligible Shares"), KKR
Partners or Strata Associates, or such remaining holders of shares of Common
Stock, or any of them, may sell in the Proposed Sale a number of additional
shares of Common Stock owned by any of them equal to their pro rata portion of
the number of Eligible Shares not included in the Proposed Sale, based on the
relative number of shares of Common Stock then held by each such holder, and
such additional shares of Common Stock which any such holder or holders propose
to sell shall not be included in any calculation made pursuant to the first
sentence of this Paragraph 2 for the purpose of determining the number of shares
of Common Stock which you or your Participant's Estate or Participant's Trust,
as the case may be, will be permitted to include in a Proposed Sale. KKR
Partners and Strata Associates, or any of them, may sell in the Proposed Sale
additional shares of Common Stock owned by any of them equal to any remaining
Eligible Shares which will not be included in the Proposed Sale pursuant to the
foregoing.
3. Except as may otherwise be provided herein, shares of Common Stock
subject to a Request will be included in a Proposed Sale pursuant hereto and in
any agreements with purchasers relating thereto on the same terms and subject to
the same conditions applicable to the shares of Common Stock which the Selling
Partnership proposes to sell in the Proposed Sale. Such terms and conditions
shall include, without limitation: the sales price; the payment of fees,
commissions and expenses; the provision of, and representation and warranty as
to, information requested by Strata Associates; and the provision of requisite
indemnifications; provided that any indemnification provided by you, your
Participant's Estate or your Participant's Trust shall be pro rata in proportion
with the number of shares of Common Stock to be sold.
4. Upon delivering a Request, you or your Participant's Estate or
Participant's Trust, as the case may be, will, if requested by the Selling
Partnership, execute and deliver a custody agreement and power of attorney in
form and substance satisfactory to the Selling
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Partnership with respect to the shares of Common Stock which are to be sold by
you or your Participant's Estate or Participant's Trust, as the case may be,
pursuant hereto (a "Custody Agreement and Power of Attorney"). The Custody
Agreement and Power of Attorney will provide, among other things, that you or
your Participant's Estate or Participant's Trust, as the case may be, will
deliver to and deposit in custody with the custodian and attorney-in-fact named
therein a certificate or certificates representing such shares of Common Stock
(duly endorsed in blank by the registered owner or owners thereof) and
irrevocably appoint said custodian and attorney-in-fact as your or your
Participant's Estate's or Participant's Trust's, as the case may be, agent and
attorney-in-fact with full power and authority to act under the Custody
Agreement and Power of Attorney on your or your Participant's Estate's or
Participant's Trust's, as the case may be, behalf with respect to the matters
specified therein.
5. Your or your Participant's Estate's or Participant's Trust's, as the
case may be, right pursuant hereto to participate in a Proposed Sale shall be
contingent on your or your Participant's Estate's or Participant's Trust's, as
the case may be, strict compliance with each of the provisions hereof and your
or your Participant's Estate's or Participant's Trust's, as the case may be,
willingness to execute such documents in connection therewith as may be
reasonably requested by the Selling Partnership.
6. The obligations of KKR Partners and Strata Associates hereunder
shall extend only to you or your Participant's Estate or Participant's Trust, as
the case may be, and no other of your or your Participant's Estate's or
Participant's Trust's, as the case may be, successors or assigns shall have any
rights pursuant hereto.
7. This Agreement shall terminate and be of no further force and effect
on the fifth anniversary of the first occurrence of a Public Offering.
8. All notices and other communications provided for herein shall be in
writing and shall be deemed to have been duly given when delivered to the party
to whom it is directed:
(a) If to KKR Partners or Strata Associates, to it at the
following address:
x/x Xxxxxxxx Xxxxxx Xxxxxxx & Co.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
(b) If to you, to you at the address first set forth above herein;
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(c) If to your Participant's Estate or Participant's Trust, at the
address provided to such partnerships by such entity;
or at such other address as any of the above shall have specified by notice in
writing delivered to the others by certified mail.
9. 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. No suit, action or proceeding with
respect to this Agreement may be brought in any court or before any similar
authority other than in a court of competent jurisdiction in the State of
Delaware (or if the Company reincorporates in another state, of that state) or
New York, as the Selling Partnerships may elect in their sole discretion, and
you hereby submit to the non-exclusive jurisdiction of such courts for the
purpose of such suit, proceeding or judgment. You hereby irrevocably waive any
right which you may have had to bring such an action in any other court,
domestic or foreign, or before any similar domestic or foreign authority.
10. If KKR Partners or Strata Associates transfers its interest in the
Company to an affiliate of KKR Partners or Strata Associates, as the case may
be, such affiliate shall assume the obligations hereunder of KKR Partners or
Strata Associates, as the case may be.
It is the understanding of the undersigned that you are aware that no
Proposed Sale presently is contemplated and that such a sale may never occur.
This Agreement may be signed in counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
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If the foregoing accurately sets forth our agreement, please
acknowledge your acceptance thereof in the space provided below for that
purpose.
Very truly yours,
STRATA ASSOCIATES, L.P.
By: KKR ASSOCIATES (STRATA), L.P.
By: STRATA L.L.C.,
as General Partner
By: /s/ Xxxxxxx X. Xxxxxx
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KKR PARTNERS II, L.P.
By: KKR ASSOCIATES (STRATA), L.P.
By: STRATA L.L.C.,
as General Partner
By: /s/ Xxxxxxx X. Xxxxxx
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Accepted and agreed to:
By: /s/ G. Xxxx Xxxxx
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G. Xxxx Xxxxx
