Exhibit (e)(2)
EXECUTION COPY
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT, dated as of October 22, 2003 (the
"AGREEMENT"), is by and between K2 Inc., a Delaware corporation ("PARENT"), and
Charter Oak Partners (the "STOCKHOLDER"), a Connecticut limited partnership and
a stockholder of Brass Eagle Inc., a Delaware corporation (the "COMPANY"). Terms
used but not otherwise defined in this Agreement shall have the meanings
ascribed to such terms in the Merger Agreement (as defined below).
RECITALS
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Parent, Acquisition and the Company are entering into an Agreement
and Plan of Merger and Reorganization, dated as of the date hereof (the "MERGER
AGREEMENT"), which provides for (a) the Offer by Parent to purchase all of the
outstanding Shares of the Company and (b) the merger of Acquisition with and
into the Company (the "MERGER").
WHEREAS, as of the date hereof, the Stockholder owns (beneficially and
of record) an aggregate of 3,674,474 Shares (all Shares so owned and which may
hereafter be acquired by the Stockholder prior to the termination of this
Agreement, whether by means of purchase, dividend, distribution or otherwise,
being referred to herein as the "OWNED SHARES");
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent has required that the Stockholder enter into this Agreement;
and
WHEREAS, in order to induce Parent to enter into the Merger Agreement,
the Stockholder is willing to enter into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Parent and the Stockholder hereby agree as follows:
ARTICLE 1
COVENANTS OF THE STOCKHOLDER
Section 1.1. Tender of Shares. In no event later than two (2) business
days prior to the Initial Expiration Date, the Stockholder shall tender (or
cause to be tendered) all of the Owned Shares in exchange for shares of Parent
Common Stock pursuant to and in accordance with the Offer, and not withdraw or
revoke such tender (or cause such tender to be withdrawn or revoked), except in
the event that this Agreement has been terminated in accordance with Section 5.2
below.
Section 1.2. No Inconsistent Actions. Except as contemplated by this
Agreement and the Merger Agreement, the Stockholder shall not, during the term
of this Agreement (a) transfer (which term shall include, without limitation,
any sale, assignment, gift, pledge, hypothecation or other disposition), or
consent to any transfer of, any or all of the Owned Shares owned by it or any
interest therein, or create or permit to exist any Lien on the Owned Shares
owned by it, (b) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of the Owned Shares
owned by it or any interest therein, (c) grant any proxy, power-of- attorney or
other authorization in or with respect to the Owned Shares owned by it, (d)
deposit the Owned Shares owned by it into a voting trust or enter into a voting
agreement or arrangement with respect to the Owned Shares owned by it, (e) take
any other action that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions contemplated hereby
or by the Merger Agreement or (f) object to, or otherwise commence or support
any proceeding or material action to oppose, the Offer or take any action that
is materially inconsistent with the covenants of the Stockholder included herein
or would unreasonably delay the consummation of the Offer.
Section 1.3. Stop Transfer. The Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Owned Shares, unless such
transfer is made in compliance with this Agreement.
Section 1.4 Disclosure. The Stockholder agrees that it will permit
public disclosure, including in a press release and in the S-4, Offer Documents
and Schedule 14D-9, if applicable, of the contents of this Agreement, including,
without limitation, the disclosure of the Stockholder's intent to tender and
recommendation of the transactions contemplated by the Merger Agreement. The
Stockholder agrees that it shall not make any announcement of disclosure
regarding this Agreement or the transactions contemplated hereby without the
prior written consent of Parent.
Section 1.5. No Solicitation. During the Term, the Stockholder shall
not, nor shall it permit or authorize any of its affiliates, officers,
directors, employees, agents or representatives (collectively, the
"REPRESENTATIVES") to, (a) solicit, initiate or encourage, directly or
indirectly, any inquiries regarding, or the submission of, any proposal for a
Third Party Acquisition or (b) enter into any agreement with respect to any
proposal for a Third Party Acquisition or approve or resolve to approve any
proposal for a Third Party Acquisition; provided, however, that nothing herein
shall prevent the Stockholder from complying with its obligations under Section
13(d) of the Exchange Act. Upon execution of this Agreement, the Stockholder
shall, and it shall cause each of its Representatives to, immediately cease any
existing activities, discussions or negotiations with any parties with respect
to any of the foregoing. The Stockholder shall promptly notify Parent in the
event it receives any proposal or inquiry concerning a Third Party Acquisition,
including the terms and conditions thereof and the identity of the party
submitting such proposal, and the Stockholder shall advise Parent from time to
time of the status and any material developments concerning the same.
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ARTICLE 2.
COVENANT OF PARENT
Section 2.1. Parent Board of Directors. Parent acknowledges and agrees
that if, solely upon the first vacancy on the board of directors of Parent (the
"PARENT BOARD"), if any, to occur during the period from the Effective Time to
the first anniversary of the Effective Time, the Stockholder owns (beneficially
and of record) an aggregate of no less than 5% of the shares of Parent Common
Stock issued and outstanding on such date, such vacancy on the Parent Board
shall be filled by action of the Parent Board with a nominee mutually acceptable
to Parent and the Stockholder.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Parent as follows:
Section 3.1. Organization; Authority Relative to this Agreement. The
Stockholder is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization and has all requisite power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted. The Stockholder has all necessary power and authority to
execute and deliver this Agreement, to perform its obligations under this
Agreement and to consummate the transactions contemplated hereby, including,
without limitation, the tender of the Owned Shares in the Offer. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
action on the part of the Stockholder, and no other actions on the part of the
Stockholder are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Stockholder and, assuming the due authorization,
execution and delivery hereof by Parent, constitutes a valid, legal and binding
agreement of the Stockholder, enforceable against the Stockholder in accordance
with its terms, subject to any applicable bankruptcy, insolvency (including all
applicable laws relating to fraudulent transfers), reorganization, moratorium or
similar laws now or hereafter in effect relating to creditors' rights generally
or to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
Section 3.2. Consents and Approvals; No Violations. Except for filings,
permits, authorizations, consents and approvals as may be required under
applicable requirements of the Exchange Act and the HSR Act and any filings
under similar merger notification laws or regulations of foreign Governmental
Entities, no filing with or notice to and no permit, authorization, consent or
approval of Governmental Entity is necessary for the execution and delivery by
the Stockholder of this Agreement or the consummation by the Stockholder of the
transactions contemplated hereby, except where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications would not prevent or delay the
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performance by the Stockholder of the obligations to be performed by it under
this Agreement. Neither the execution, delivery and performance of this
Agreement by the Stockholder nor the consummation by the Stockholder of the
transactions contemplated hereby will (i) result in a violation or breach of or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, amendment, cancellation or acceleration
or Lien) under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which the Stockholder is a party or by which
the Stockholder or its properties or assets are bound or (ii) violate any order,
writ, injunction or decree to which the Stockholder is subject, or any law,
statute, rule or regulation applicable to the Stockholder or any of its
properties or assets, except for violations, breaches or defaults that would not
prevent or delay the performance by the Stockholder of the obligations to be
performed by it under this Agreement.
Section 3.3. Title to Shares. The Stockholder is the sole record and
beneficial owner of the Owned Shares, free and clear of any pledge, lien,
security interest, mortgage, trust, charge, claim, equity, option, proxy, voting
restriction, voting trust or agreement, understanding, arrangement, right of
first refusal, limitation on disposition, adverse claim of ownership or use or
encumbrance of any kind, other than restrictions imposed by the securities laws
or pursuant to this Agreement and the Merger Agreement, or that would not
conflict with this Agreement or prohibit the Stockholder's performance of its
obligations hereunder.
Section 3.4. Certain Commitments. The Stockholder hereby represents
that the Stockholder is not, and that from the date hereof through and including
the Closing Date, neither the Stockholder nor any transferee of the Owned Shares
shall become, subject to a binding commitment to sell, exchange or transfer by
gift (or take any other action that would be treated for federal income tax
purposes as a disposition of) any of the Offer Consideration to be received by
it pursuant to the Offer.
Section 3.5 Other. The Stockholder has been represented by counsel in
connection with this Agreement and the transactions contemplated hereby. The
Stockholder has reviewed, or has had the opportunity to review, with the
assistance of professional and legal advisors of its choosing, sufficient
information necessary for the Stockholder to decide to tender the Owned Shares
pursuant to the Offer. As of the date of this Agreement, the Stockholder is not
aware of any event that, due to any fiduciary or similar duty to any person,
would prevent it from taking any action required by it under this Agreement.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to the Stockholder as follows:
Section 4.1. Organization; Authority Relative to this Agreement. Parent
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has all requisite power and authority to
own, lease and operate its properties and to carry on its business as now being
conducted. Parent has all necessary corporate power and authority to execute and
deliver this Agreement, to perform its obligations under this
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Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of Parent, and no other actions on the part of
Parent are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Parent and, assuming the due authorization, execution
and delivery hereof by the Stockholder, constitutes a valid, legal and binding
agreement of Parent, enforceable against Parent in accordance with its terms,
subject to any applicable bankruptcy, insolvency (including all applicable laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
now or hereafter in effect relating to creditors' rights generally or to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
Section 4.2. Consents and Approvals; No Violations. Except for filings,
permits, authorizations, consents and approvals as may be required under
applicable requirements of the Exchange Act and the HSR Act and any filings
under similar merger notification laws or regulations of foreign Governmental
Entities, no filing with or notice to and no permit, authorization, consent or
approval of Governmental Entity is necessary for the execution and delivery by
Parent of this Agreement or the consummation by Parent of the transactions
contemplated hereby, except where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications
would not prevent or delay the performance by Parent of the obligations to be
performed by it under this Agreement.. Neither the execution, delivery and
performance of this Agreement by Parent nor the consummation by Parent of the
transactions contemplated hereby will (i) result in a violation or breach of or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, amendment, cancellation or acceleration
or Lien) under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which Parent is a party or by which Parent or
its properties or assets are bound or (ii) violate any order, writ, injunction
or decree to which Parent is subject, or any law, statute, rule or regulation
applicable to Parent or any of its properties or assets, except for violations,
breaches or defaults that would not prevent or delay the performance by Parent
of the obligations to be performed by it under this Agreement.
ARTICLE 5.
MISCELLANEOUS
Section 5.1. Securities Act. The Stockholder acknowledges that it has
been advised by its counsel as to its ability to offer or sell shares of Parent
Common Stock without registration under the Securities Act. The Stockholder
shall not acquire shares of Parent Common Stock pursuant to the Offer with a
view to distribution, except in compliance with the Securities Act.
Section 5.2. Termination. This Agreement shall terminate and be of no
further force and effect (a) upon the written mutual consent of the parties
hereto; (b) by the Stockholder, upon termination of the Merger Agreement
pursuant to Section 7.1(c)(iv) or Section 7.1(c)(v) therein; or (c) by the
Stockholder, if (i) the average of the closing prices for Parent Common Stock on
the NYSE (as reported in the New York City edition of the Wall Street Journal
or, if not reported thereby, another nationally recognized source) for any ten
(10) consecutive trading days ending
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not later than two (2) trading days prior to the Expiration Date (giving effect
to any extension of the Offer, but not to any subsequent offer pursuant to
Section 1.1) is less than $12.64 and (ii) as a result of such event, the
Stockholder does not intend to tender the Owned Shares, and the Stockholder has
provided notice of such intent to Parent no later than two (2) trading days
following the expiration of such ten (10) consecutive trading days. No such
termination of this Agreement shall relieve any party hereto from any liability
for any breach of this Agreement prior to termination.
Section 5.3. Further Assurance. From time to time, at another party's
request and without consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transaction contemplated by this Agreement.
Section 5.4. Certain Events. The Stockholder agrees that this Agreement
and the Stockholder's obligations hereunder shall attach to the Owned Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of the Owned Shares shall pass, whether by operation of law or
otherwise. Notwithstanding any transfer of the Owned Shares, the transferor
shall remain liable for the performance of all its obligations under this
Agreement.
Section 5.5. Amendment. This Agreement may be amended by action taken
by the Stockholder and Parent. This Agreement may be amended only by an
instrument in writing signed on behalf of the Stockholder and Parent.
Section 5.6. Extension; Waiver. At any time prior to the termination of
this Agreement, each party hereto may (a) extend the time for the performance of
any of the obligations or other acts of the other party, (b) waive any
inaccuracies in the representations and warranties of the other party contained
herein or in any document certificate or writing delivered pursuant hereto or
(c) waive compliance by another party with any of the agreements or conditions
contained herein. Any agreement on the part of any party hereto to any such
extension or waiver shall be valid only if set forth in an instrument, in
writing, signed on behalf of such party. The failure of any party hereto to
assert any of its rights hereunder shall not constitute a waiver of such rights.
Section 5.7. Entire Agreement; Assignment. This Agreement and the
Merger Agreement (a) constitute the entire agreement between the parties hereto
with respect to the subject matter hereof and supersede all other prior
agreements and understandings both written and oral between the parties with
respect to the subject matter hereof and (b) shall not be assigned by operation
of law or otherwise; provided, however, that Parent may assign any or all of its
rights and obligations under this Agreement to any wholly-owned subsidiary of
Parent, but no such assignment shall relieve Parent of its obligations hereunder
if such assignee does not perform such obligations.
Section 5.8 Validity. If any provision of this Agreement or the
application thereof to any person or circumstance is held invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected thereby and to
such end the provisions of this Agreement are agreed to be severable.
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Section 5.9. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by facsimile
or by registered or certified mail (postage prepaid, return receipt requested)
to each other party as follows:
if to Parent: K2 Inc.
0000 Xxxxxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: General Counsel
with a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxxxx
if to the Stockholder to: Charter Oak Partners
00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx Xxxx
with a copy to: Xxxxxxxx Xxxx LLP
0000 Xxx Xxxxxx - 000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
Section 5.10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
the principles of conflicts of law thereof.
Section 5.11. Descriptive Headings; Section References. The descriptive
headings herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement. All references herein to Articles, Sections, subsections, paragraphs
and clauses are references to Articles, Sections, subsections, paragraphs and
clauses of this Agreement unless specified otherwise.
Section 5.12 Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and its successors and
permitted assigns and nothing in this Agreement is intended to or shall confer
upon any other person any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
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Section 5.13 Expenses. Except as otherwise expressly set forth herein,
all fees, costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such fees,
costs and expenses.
Section 5.14. Specific Performance. The parties hereby acknowledge and
agree that the failure of any party to perform its agreements and covenants
hereunder will cause irreparable injury to the other parties, for which damages,
even if available, will not be an adequate remedy. Accordingly, each party
hereby consents to the issuance of injunctive relief by any court of competent
jurisdiction to compel performance of such party's obligations and to the
granting by any court of the remedy of specific performance of its obligations
hereunder.
Section 5.15. Counterparts. This Agreement may be executed by facsimile
in one or more counterparts, each of which shall be deemed to be an original but
all of which shall constitute one and the same agreement.
Section 5.16. Rules of Construction. The parties hereto agree that they
have been represented by counsel during the negotiation and execution of this
Agreement, and, therefore, waive the application of any applicable law, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
Section 5.17. Waiver of Jury Trial. EACH OF PARENT AND THE STOCKHOLDER
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT OR THE STOCKHOLDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
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IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be executed as of the date first written above.
K2 INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and General Counsel
CHARTER OAK PARTNERS
By: Fine Partners, L.P., Managing Partner
By: /s/ Xxxxxxx X. Fine
---------------------------------------
Name: Xxxxxxx X. Fine
Title: Managing Partner
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