Exhibit 10.2
EXCHANGEABLE SHARE SUPPORT AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 11th day of June, 2003.
BETWEEN: THE HOCKEY COMPANY, a company existing under the laws
of the State of Delaware,
(hereinafter referred to as "THC");
AND: THE HOCKEY COMPANY HOLDINGS INC., a corporation
existing under the laws of Canada,
(hereinafter referred to as "HOLDINGS");
WHEREAS pursuant to an Agreement and Plan of Merger (the "MERGER
AGREEMENT") dated as of April 2, 2003 by and among THC, Holdings and Hockey
Merger Co., a wholly-owned subsidiary of Holdings, each of the stockholders of
THC will receive in exchange for each share of voting common stock, par value
$.01 per share, one (1) share of non-voting exchangeable common stock, par value
$.01 per share, in THC (the "EXCHANGEABLE SHARES");
AND WHEREAS the Merger Agreement will become effective concurrently with
the closing of the initial public offering ("IPO") of Holdings by way of a
supplemented PREP prospectus dated June 5, 2003 and is conditional upon the
closing of the IPO;
AND WHEREAS pursuant to the Merger Agreement, THC and Holdings have agreed
to execute an exchangeable share support agreement substantially in the form of
this agreement;
NOW THEREFORE in consideration of the respective covenants and agreements
provided in this agreement and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the parties hereto
covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINED TERMS
Each term denoted herein by initial capital letters and not otherwise
defined herein shall have the meaning ascribed thereto in the rights,
privileges, restrictions and conditions
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(collectively, the "SHARE PROVISIONS") attaching to the Exchangeable Shares
attached as Exhibit A to the Amended and Restated Certificate of Incorporation
of THC, which is attached as Exhibit A to the Merger Agreement, unless the
context requires otherwise.
1.2 INTERPRETATION NOT AFFECTED BY HEADINGS
The division of this agreement into Articles, sections and other portions
and the insertion of headings are for convenience of reference only and shall
not affect the construction or interpretation of this agreement. Unless
otherwise indicated, all references to an "Article" or "section" followed by a
number and/or a letter refer to the specified Article or section of this
agreement. The terms "this agreement", "hereof", "herein" and "hereunder" and
similar expressions refer to this agreement and not to any particular Article,
section or other portion hereof and include any agreement or instrument
supplementary or ancillary hereto.
1.3 NUMBER, GENDER
Words importing the singular number only shall include the plural and VICE
VERSA. Words importing any gender shall include all genders.
1.4 DATE FOR ANY ACTION
If any date on which any action is required to be taken under this
agreement is not a Business Day, such action shall be required to be taken on
the next succeeding Business Day.
ARTICLE 2
COVENANTS OF HOLDINGS AND/OR THC
2.1 COVENANTS REGARDING EXCHANGEABLE SHARES
So long as any Exchangeable Shares not owned by Holdings or its Affiliates
are outstanding,
(a) THC will, subject to all applicable laws, only declare and pay a
dividend on the Exchangeable Shares concurrently with, and in an
amount equal to (on a per share basis), any dividend declared and paid
by Holdings on the Holdings Common Shares, and Holdings will not
declare and pay a dividend on the Holdings Common Shares if no
dividend can be declared and paid on the Exchangeable Shares;
(b) Holdings will take all such actions and do all such things as are
reasonably necessary or desirable to enable and permit Holdings, in
accordance with applicable law, to perform its obligations arising
upon the exercise by a holder of Exchangeable Shares of the Put Right,
including without limitation, all such actions and all such things as
are necessary or desirable to enable and permit Holdings to deliver or
cause to be delivered Holdings Common Shares to holders of
Exchangeable Shares in accordance with the provisions of the Put
Right; and
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(c) Holdings will take all actions and do all such things as are necessary
or desirable to enable and permit Holdings, in accordance with
applicable law, to perform its obligations arising upon the exercise
by Holdings of the Call Right, including without limitation, all such
actions and all such things as are necessary or desirable to enable
and permit Holdings to deliver or cause to be delivered Holdings
Common Shares to holders of Exchangeable Shares in accordance with the
provisions of the Call Right.
2.2 RESERVATION OF HOLDINGS COMMON SHARES
Holdings hereby represents, warrants and covenants in favour of THC that
Holdings has reserved for issuance and will, at all times while any Exchangeable
Shares (other than Exchangeable Shares held by Holdings or its Affiliates) are
outstanding, keep available, free from pre-emptive and other rights, out of its
authorized and unissued share capital such number of Holdings Common Shares (or
other shares or securities into which Holdings Common Shares may be reclassified
or changed as contemplated by Section 2.8 hereof) (a) as is equal to the number
of Holdings Common Shares issuable upon the exercise from time to time of the
Put Right and/or Call Right, and (b) as are now and may hereafter be required to
enable and permit Holdings to meet its obligations under any other security or
commitment pursuant to which Holdings may now or hereafter be required to issue
Holdings Common Shares.
2.3 NOTIFICATION OF CERTAIN EVENTS
In order to assist Holdings to comply with its obligations hereunder, THC
will notify Holdings as soon as practicable upon the issuance by THC of any
Exchangeable Shares or rights to acquire Exchangeable Shares (other than the
issuance of Exchangeable Shares and rights to acquire Exchangeable Shares in
exchange for outstanding securities of THC pursuant to the Merger Agreement).
In order to assist THC to comply with its obligations hereunder, Holdings
will notify THC as soon as possible upon a proposed declaration by Holdings of
any dividend on the Holdings Common Shares and take all such other actions as
are reasonably necessary, in cooperation with THC, to ensure that the respective
declaration date, record date and payment date for a dividend on the Holdings
Common Shares shall be the same as the declaration date, record date and payment
date for the corresponding dividend on the Exchangeable Shares, subject to all
applicable laws.
2.4 DELIVERY OF HOLDINGS COMMON SHARES
In furtherance of its obligations under Sections 2.1(b), and (c) hereof,
Holdings shall, subject to all applicable laws and regulatory or stock exchange
requirements, forthwith issue and deliver or cause to be delivered to holders of
Exchangeable Shares the requisite number of Holdings Common Shares to be
received by, and issued to or to the order of, the former holder of the
Exchangeable Shares following the exercise of the Put Right and/or Call Right,
as they shall direct. All such Holdings Common Shares shall be duly authorized
and validly issued as fully paid and non-assessable and shall be free and clear
of any lien, claim or encumbrance.
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2.5 QUALIFICATION OF HOLDINGS COMMON SHARES
If any Holdings Common Shares (or other shares or securities into which
Holdings Common Shares may be reclassified or changed as contemplated by Section
2.8 hereof) to be issued and delivered hereunder require registration or
qualification with or approval of or the filing of any document, including any
prospectus or similar document or the taking of any proceeding with or the
obtaining of any order, ruling or consent from any governmental or regulatory
authority under any Canadian or United States federal, provincial or state
securities or other law or regulation or pursuant to the rules and regulations
of any securities or other regulatory authority or the fulfilment of any other
United States or Canadian legal requirement before such shares (or such other
shares or securities) may be issued by Holdings and delivered or cause to be
delivered by Holdings to a holder of Exchangeable Shares following the exercise
of the Put Right and/or Call Right in order that such shares (or such other
shares or securities) may be freely traded thereafter (other than any
restrictions of general application on transfer by reason of a holder being a
"control person" for purposes of Canadian provincial securities law or an
"affiliate" of Holdings for purposes of United States federal or state
securities law equivalent), Holdings will in good faith expeditiously take all
such reasonable actions and do all such reasonable things as are necessary or
desirable to cause such Holdings Common Shares (or such other shares or
securities) to be and remain duly registered, qualified or approved under United
States and/or Canadian law, as the case may be, do all such things as are
reasonably necessary or desirable to cause all Holdings Common Shares (or such
other shares or securities) to be delivered hereunder to be listed, quoted or
posted for trading on all stock exchanges and quotation systems on which
outstanding Holdings Common Shares (or such other shares or securities) have
been listed by Holdings and remain listed and quoted or posted for trading,
provided that nothing herein shall require Holdings to file a registration
statement with the Securities and Exchange Commission in order to register the
Holdings Common Shares to be delivered to the U.S. holders of Exchangeable
Shares and have such registration statement declared effective prior to the date
which is six (6) months after the closing of the IPO.
2.6 TENDER OFFERS
In the event that a tender offer, share exchange offer, issuer bid,
take-over bid or similar transaction with respect to the Holdings Common Shares
(an "OFFER") is proposed by Holdings or is proposed to Holdings or its
shareholders and is recommended by the Board of Directors of Holdings, or is
otherwise effected or to be effected with the consent or approval of the Board
of Directors of Holdings, Holdings will use its reasonable best efforts
expeditiously and in good faith to take all such actions and do all such things
as are necessary or desirable to enable and permit holders of Exchangeable
Shares to participate in such Offer to the same extent and on an economically
equivalent basis as the holders of Holdings Common Shares, without
discrimination. Without limiting the generality of the foregoing, Holdings will
use its reasonable best efforts expeditiously and in good faith to ensure that
holders of Exchangeable Shares may participate in all such Offers without being
required to exercise the Put Right (or, if so required, to ensure that any such
exercise of the Put Right shall be effective only upon, and shall be conditional
upon, the closing of the Offer and only to the extent necessary to tender or
deposit to the Offer).
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2.7 HOLDINGS AND AFFILIATES NOT TO VOTE EXCHANGEABLE SHARES
Holdings covenants and agrees that it will appoint and cause to be
appointed proxyholders with respect to all Exchangeable Shares held by it and
its Affiliates for the sole purpose of attending each meeting of holders of
Exchangeable Shares in order to be counted as part of the quorum for each such
meeting. Holdings further covenants and agrees that it will not, and will cause
its Affiliates not to, exercise any voting rights which may be exercisable by
holders of Exchangeable Shares from time to time pursuant to the Share
Provisions or pursuant to the provisions of the laws of the State of Delaware
(or any successor or other corporate statute by which THC may in the future be
governed) with respect to any Exchangeable Shares held by it or by its
Affiliates in respect of any matter considered at any meeting of holders of
Exchangeable Shares.
2.8 CHANGES IN HOLDINGS COMMON SHARES
So long as any Exchangeable Shares not owned by Holdings or its Affiliates
are outstanding, Holdings will not, without the prior approval of THC and the
prior approval of the holders of the Exchangeable Shares given in accordance
with the Share Provisions:
(a) subdivide, redivide or change the then outstanding Holdings Common
Shares into a greater number of Holdings Common Shares;
(b) reduce, combine, consolidate or change the then outstanding Holdings
Common Shares into a lesser number of Holdings Common Shares; or
(c) reclassify or otherwise change the Holdings Common Shares or effect an
amalgamation, merger, reorganization or other transaction affecting
the Holdings Common Shares,
unless the same or an economically equivalent change shall simultaneously
be made to, or in, the rights of the holders of the Exchangeable Shares.
2.9 LIQUIDATION OF THC AND/OR HOLDINGS
So long as any Exchangeable Shares not owned by Holdings or its Affiliates
are outstanding, neither THC nor Holdings shall take any action in order to
liquidate, dissolve or wind-up (a "VOLUNTARY LIQUIDATION") or proceed with any
Voluntary Liquidation, unless the other company concurrently takes action to
Voluntary Liquidate or proceeds with a Voluntary Liquidation.
2.10 NUMBER OF OUTSTANDING COMMON STOCK
So long as any Exchangeable Shares not owned by Holdings or its Affiliates
are outstanding, upon any issuance by Holdings of Holdings Common Shares upon
the exercise or conversion of any options, warrants or similar securities,
Holdings will concurrently subscribe for, and THC will concurrently issue to
Holdings, one (1) share of Common Stock for each Holdings Common Share so
issued. The consideration payable by Holdings to THC for the
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issuance of the Common Stock shall be equal to the consideration received
by Holdings for the issuance of the Common Shares, unless otherwise determined
and agreed to in good faith by the Board of Directors of Holdings and THC.
ARTICLE 3
HOLDINGS SUCCESSORS
3.1 CERTAIN REQUIREMENTS IN RESPECT OF COMBINATION, ETC.
Holdings shall not consummate any transaction (whether by way of
reconstruction, reorganization, consolidation, merger, transfer, sale, lease or
otherwise) whereby all or substantially all of its undertaking, property and
assets would become the property of any other person or, in the case of a
merger, of the continuing corporation resulting therefrom unless:
(a) such other person or continuing corporation (the "HOLDINGS SUCCESSOR")
by operation of law, becomes, without more, bound by the terms and
provisions of this agreement or, if not so bound, executes, prior to
or contemporaneously with the consummation of such transaction, an
agreement supplemental hereto and such other instruments (if any) as
are reasonably necessary or advisable to evidence the assumption by
the Holdings Successor of liability for all moneys payable and
property deliverable hereunder and the covenant of such Holdings
Successor to pay and deliver or cause to be delivered the same and its
agreement to observe and perform all the covenants and obligations of
Holdings under this agreement; and
(b) such transaction shall be upon such terms and conditions as
substantially to preserve and not to impair in any material respect
any of the rights, duties, powers and authorities of the other parties
hereunder and the holders of the Exchangeable Shares.
3.2 VESTING OF POWERS IN SUCCESSOR
Whenever the conditions of Section 3.1 have been duly observed and
performed, the parties, if required by Section 3.1, shall execute and deliver a
supplemental agreement hereto and thereupon Holdings Successor shall possess and
from time to time may exercise each and every right and power of Holdings under
this agreement in the name of Holdings or otherwise and any act or proceeding by
any provision of this agreement required to be done or performed by the Board of
Directors of Holdings or any officers of Holdings may be done and performed with
like force and effect by the directors or officers of such Holdings Successor.
3.3 WHOLLY-OWNED SUBSIDIARIES
Nothing herein shall be construed as preventing the amalgamation or merger
of any wholly-owned direct or indirect subsidiary of Holdings with or into
Holdings or the winding-up, liquidation or dissolution of any wholly-owned
subsidiary of Holdings provided that all of the
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assets of such subsidiary are transferred to Holdings or another
wholly-owned direct or indirect subsidiary of Holdings and any such transactions
are expressly permitted by this agreement.
ARTICLE 4
GENERAL
4.1 TERM
This agreement shall come into force and be effective as of the date hereof
and shall terminate and be of no further force and effect at such time as no
Exchangeable Share (or securities or rights convertible into or exchangeable for
or carrying rights to acquire Exchangeable Shares) are held by any person or
entity other than Holdings and any of its Affiliates.
4.2 CHANGES IN CAPITAL OF HOLDINGS AND/OR THC
At all times after the occurrence of any event contemplated pursuant to
Section 2.8 hereof or otherwise, as a result of which either Holdings Common
Shares or the Exchangeable Shares or both are in any way changed, this agreement
shall forthwith be amended and modified as necessary in order that it shall
apply with full force and effect, mutatis mutandis, to all new securities into
which Holdings Common Shares or the Exchangeable Shares or both are so changed
and the parties hereto shall execute and deliver an agreement in writing giving
effect to and evidencing such necessary amendments and modifications.
4.3 SEVERABILITY
If any provision of this agreement is held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remainder of this
agreement shall not in any way be affected or impaired thereby and this
agreement shall be carried out as nearly as possible in accordance with its
original terms and conditions.
4.4 AMENDMENTS, MODIFICATIONS
This agreement may not be amended or modified except by an agreement in
writing executed by THC and Holdings and approved by the holders of the
Exchangeable Shares in accordance with the Share Provisions and all applicable
laws.
4.5 MINISTERIAL AMENDMENTS
Notwithstanding the provisions of Section 4.4, the parties to this
agreement may in writing at any time and from time to time, without the approval
of the holders of the Exchangeable Shares, amend or modify this agreement for
the purposes of:
(a) adding to the covenants of any or all parties provided that the Board
of Directors of each of THC and Holdings shall be of the good faith
opinion that such
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additions will not be prejudicial to the rights or interests of the
holders of the Exchangeable Shares;
(b) making such amendments or modifications not inconsistent with this
agreement as may be necessary or desirable with respect to matters or
questions which, in the good faith opinion of the Board of Directors
of each of THC and Holdings, it may be expedient to make, provided
that each such Board of Directors shall be of the good faith opinion
(after consultation with counsel) that such amendments or
modifications will not be prejudicial to the rights or interests of
the holders of the Exchangeable Shares; or
(c) making such changes or corrections which, on the advice of counsel to
THC and Holdings, are required for the purpose of curing or correcting
any ambiguity or defect or inconsistent provision or clerical omission
or mistake or manifest error, provided that the Boards of Directors of
each of THC and Holdings shall be of the good faith opinion (after
consultation with counsel) that such changes or corrections will not
be prejudicial to the rights or interests of the holders of the
Exchangeable Shares.
4.6 MEETING TO CONSIDER AMENDMENTS
THC, at the request of Holdings, shall call a meeting or meetings of the
holders of the Exchangeable Shares for the purpose of considering any proposed
amendment or modification requiring approval pursuant to Section 4.4 hereof. Any
such meeting or meetings shall be called and held in accordance with the by-laws
of THC, the Share Provisions and all applicable laws.
4.7 AMENDMENTS ONLY IN WRITING
No amendment to or modification or waiver of any of the provisions of this
agreement otherwise permitted hereunder shall be effective unless made in
writing and signed by all of the parties hereto.
4.8 ENUREMENT
This agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and assigns.
4.9 NOTICES TO PARTIES
All notices and other communications required or permitted to be delivered
to a party under this agreement shall be in writing and shall be deemed to have
been properly delivered, given or received (a) upon receipt when delivered by
hand or (b) two Business Days after being sent by registered mail or by courier
or express delivery service or by facsimile, provided that in each case the
notice or communication is sent to the address or facsimile telephone number set
forth beneath the name of such party below:
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(a) if to THC:
The Hockey Company
0000 xx Xxxxxxxxxxx Xxxx. Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx
X0X 0X0
Fax: (000) 000-0000
Attention: Xxxxxxx X. X'Xxxxx, President and CEO
(b) if to Holdings:
The Hockey Company Holdings Inc.
0000 xx Xxxxxxxxxxx Xxxx. Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx
X0X 0X0
Fax: (000) 000-0000
Attention: Xxxxxxx X. X'Xxxxx, President and CEO
4.10 COUNTERPARTS
This agreement may be executed in counterparts, each of which shall be
deemed an original, and all of which taken together shall constitute one and the
same instrument.
4.11 JURISDICTION
This agreement shall be construed and enforced in accordance with the laws
of the Province of Quebec and the laws of Canada applicable therein.
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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.
THE HOCKEY COMPANY
Per: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer and Vice President,
Finance and Administration
THE HOCKEY COMPANY HOLDINGS INC.
Per: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer and Vice President,
Finance and Administration
