Exhibit 10.1
REDEMPTION AGREEMENT
THIS REDEMPTION AGREEMENT (this "Agreement") is made as of September
23, 2002 by and among DLJ Investment Partners, L.P., DLJ Investment Funding,
Inc., and DLJ ESC II L.P. (collectively, "DLJ"), Golfsmith International,
Inc., a Delaware corporation ("Golfsmith"), Golfsmith Holdings, L.P., a
Delaware limited partnership ("Golfsmith Holdings"), Golfsmith G.P. Holdings,
Inc., a Delaware corporation ("GP"), Golfsmith International Holdings, Inc.,
a Delaware corporation ("Parent"), and BGA Acquisition Corporation, a
Delaware corporation and wholly-owned subsidiary of Parent ("Sub"). Except
as otherwise indicated herein, each term used herein that is defined in the
Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), among Golfsmith, Parent and Sub, has the meaning given such term
in the Merger Agreement.
RECITALS:
WHEREAS, Parent, Sub and Golfsmith have entered into the Merger Agreement,
pursuant to which Sub will be merged with and into Golfsmith (the "Merger"),
with Golfsmith continuing as the surviving corporation.
WHEREAS, in connection with the transactions contemplated by the Merger
Agreement, and as a material inducement to Parent to enter into the Merger
Agreement, DLJ desires to sell to Golfsmith at the Closing (i) all of the
partnership interests in Golfsmith Holdings held by DLJ, consisting of 7,500
Units (as defined in the Amended and Restated Limited Partnership Agreement for
Golfsmith Holdings, dated as of August 17, 1998 (the "LP Agreement")) and a 7.5%
Unit Allocation (as defined in the LP Agreement) (such Units and Unit
Allocations, together, the "LP Interests"), (ii) the options to acquire 86,116
shares of Common Stock, as evidenced by that certain letter agreement from
Golfsmith to DLJ dated as of July 11, 2000 (the "Warrant"), and (iii) all of the
Senior Subordinated Notes, each dated as of August 17, 1998 (the "Notes"),
issued by Golfsmith, Golfsmith Holdings and GP pursuant to the Securities
Purchase Agreement, dated as of August 17, 1998 (the "Securities Purchase
Agreement"), among Golfsmith, Golfsmith Holdings, GP, and DLJ.
WHEREAS, in connection with the sale of the LP Interests, the Warrant and
the Notes to Golfsmith, DLJ, Golfsmith, Golfsmith Holdings and GP desire to
terminate certain agreements in their entireties.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
SECTION 1. SALE OF LP INTERESTS AND NOTES. Immediately prior to the
Closing, DLJ shall sell to Golfsmith, and Golfsmith shall purchase from DLJ, all
of the LP Interests, the Warrant and all of the Notes. The purchase price to be
paid by Golfsmith for the LP Interests shall be the Redemption Amount, the
purchase price to be paid for the Warrant shall be the Warrant Redemption Amount
and the purchase price to be paid for the Notes shall be an amount equal to the
sum of (i) 102.5% of the then outstanding principal amount of the Notes, plus
(ii) all accrued but unpaid interest on the Notes as of 5:00 pm (eastern
standard time) on the day immediately prior to the Closing Date. The purchase
price for the LP Interests, the Warrant and
the Notes shall be paid by Golfsmith to DLJ by wire transfer of immediately
available funds as soon as practicable after the Closing.
SECTION 2. CLOSING DELIVERIES.
2A. Payoff Letter; Notes. At least two days prior to the Closing,
DLJ shall deliver to Golfsmith a payoff letter substantially in the form
attached hereto as Exhibit A, which letter shall indicate the wire transfer
instructions for payment of the purchase price and the amount thereof, including
a per diem calculation for interest on the Notes. Upon receipt of the purchase
price for the Notes, DLJ shall promptly deliver to Golfsmith the original of
each Note for evidence of termination.
2B. Warrant and LP Interest. At the Closing, DLJ shall deliver to
Golfsmith a receipt evidencing transfer of all interests in the Warrant and the
LP Interests to Golfsmith.
SECTION 3. COVENANTS; TERMINATION OF AGREEMENTS.
3A. Sale of Notes, Warrant or LP Interests. DLJ shall not directly
or indirectly sell, transfer, pledge, or create or allow to exist any Lien on,
the Notes, the Warrant or the LP Interests, or any rights of DLJ therein, prior
to the first to occur of (i) the date on which the Merger Agreement is
terminated in accordance with its terms, (ii) the Closing and (iii) 5:00 p.m.
(eastern standard time) on December 31, 2002.
3B. Termination of Agreements. Effective immediately upon payment by
Golfsmith of the purchase price for the Notes, the Warrant and the LP Interests,
the parties hereto agree that the following agreements shall be terminated in
their entireties, shall be of no further force and effect, and no party thereto
shall have any obligations thereunder (whether arising before, at or following
the Closing):
(i) the Warrant;
(ii) the Notes;
(iii) the Securities Purchase Agreement (other than Section 4C
thereof, which shall survive pursuant to the terms of such agreement);
(iv) the Indenture, dated as of August 17, 1998, relating to the
Notes;
(v) the Tag-Along Rights Agreement, dated as of August 17, 1998;
(vi) the Note Registration Rights Agreement, dated as of August
17, 1998; and
(vii) the Equity Registration Rights Agreement, dated as of
August 17, 1998.
3C. Waiver of Rights; Release. Effective immediately upon payment by
Golfsmith of the purchase price for the Notes, the Warrant and the LP Interests,
Golfsmith, Golfsmith Holdings and GP, on the one hand, and DLJ, on the other
hand, each hereby waives any and all rights under the documents listed in
Section 3B above that may arise in favor of such party with respect to the
Merger, the Merger Agreement, this Agreement or the transactions contemplated
hereby or thereby (other than any rights arising under Section 4C of the
Securities
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Purchase Agreement). Effective immediately upon payment by Golfsmith of the
purchase price for the Notes, the Warrant and the LP Interests, Golfsmith,
Golfsmith Holdings and GP, on the one hand, and DLJ, on the other hand, each
hereby releases remises acquits and discharges forever, irrevocably and
unconditionally, each and all of Golfsmith, Golfsmith Holdings, GP, Parent and
Sub (collectively, the "Released Group") and DLJ, as applicable, from, against
and with respect to any and all claims, actions, suits, liabilities, costs,
demands, accounts, causes of action, rights of levy, execution, recission,
remedies, judgments, obligations, damages, expenses, interest, penalties and
charges of every kind and nature whatsoever, whether in law or in equity,
whether known or unknown, foreseen or unforeseen, matured or unmatured, absolute
or contingent, determined or determinable (collectively, "Claims") which such
party has, ever has had or may hereafter have against the Released Group or DLJ,
as applicable, or any of them individually, at any time on or prior to the date
hereof, relating to DLJ's interest in the LP Interests, the Warrant and the
Notes or relating to the Merger, the Merger Agreement, this Agreement or the
transactions contemplated hereby or thereby (other than pursuant to Section 4C
of the Securities Purchase Agreement).
3D. Board Appointees. Notwithstanding anything contained in Sections
3B or 3C above, this Agreement does not terminate, modify or otherwise affect
any rights that any person appointed or nominated to the board of directors of
Golfsmith or any of its Subsidiaries by DLJ may have under Applicable Law, the
charter and bylaws (or similar organizational documents) of Golfsmith or its
Subsidiaries, or any agreement between Golfsmith or any of its Subsidiaries and
such appointee or nominee.
SECTION 4. MISCELLANEOUS.
4A. Authority; No Violation; Consents. Each party hereto
hereby represents and warrants, on behalf of itself only, as follows:
(i) Such person has the requisite power and authority to enter into
this Agreement and to consummate the transactions contemplated herein. This
Agreement has been duly executed and delivered by such person and, assuming that
this Agreement constitutes the valid and binding agreement of the other parties
hereto, constitutes the valid and binding obligations of such person,
enforceable against such person in accordance with its terms and conditions,
except that the enforcement hereof may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
Applicable Laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity). For each
person that is not a natural person, the execution and delivery of this
Agreement by such person and the consummation by such person of the transactions
contemplated herein have been duly authorized by all necessary corporate or
other action on the part of such person.
(ii) The execution and delivery by such person of this Agreement
does not, and the performance by such person of the transactions contemplated
herein will not, (i) with respect to any person that is not a natural person,
violate, conflict with, or result in any breach of any provision of such
person's certificate or articles of incorporation or bylaws (or comparable
charter or organizational documents), (ii) conflict in any material respect with
or result in a material violation or material breach of, or constitute a default
(with or without due notice or lapse of time or both) under, any of the terms,
conditions or provisions of any contract or agreement to which such person is a
party or to which any of its properties or assets may be
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subject, or (iii) violate any order, writ, judgment, injunction, decree,
statute, Applicable Law, rule or regulation of any Governmental Entity binding
upon such person or by which or to which any material portion of its assets is
bound or subject.
4B. Ownership of LP Interests, Warrant and Notes. DLJ is the sole
record and beneficial holder of all of the LP Interests, the Warrant and the
Notes, free and clear of any Liens, and DLJ has the full right, power and
authority to sell and transfer the LP Interests, the Warrant and the Notes in
accordance with Section 1 hereof. Other than the LP Interests, the Warrant and
the Notes, DLJ does not hold any securities or other interests of Golfsmith,
Golfsmith Holdings, GP, or any of their direct or indirect wholly-owned
Subsidiaries. Except for this Agreement, there are no contracts, agreements or
other arrangements to which DLJ is a party or by which DLJ or the LP Interests,
the Warrant or the Notes are otherwise bound to redeem, purchase or otherwise
acquire any of the LP Interests, the Warrant or the Notes. There is no
outstanding option, warrant, right (including conversion or preemptive rights),
or agreement for the purchase or acquisition from DLJ of any of the LP
Interests, the Warrant, the Notes or any interest therein.
4C. Brokerage. There are no claims for brokerage commissions,
finders' fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement binding
upon DLJ.
4D. Further Assurances. Each party hereto shall execute such
documents and other papers and take such further actions as any other party may
reasonably request in order to carry out the provisions of this Agreement.
4E. Fees and Expenses. Each party hereto shall be responsible for
all costs and expenses that it incurs with respect to the negotiation,
execution, delivery, and performance of this Agreement; provided, that Golfsmith
shall pay the reasonable fees and expenses of Xxxxxx Xxxxxx & Reindell, special
counsel to DLJ, at the Closing. If any action, suit, or other proceeding is
instituted concerning or arising out of this Agreement or any transaction
contemplated under this Agreement, the prevailing party shall recover all of
such party's costs and attorneys' fees incurred in each such action, suit, or
other proceeding, including any and all appeals or petitions from such action,
suit, or other proceeding.
4F. Survival of Representations and Warranties and Covenants. The
representations, warranties, and covenants contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing and shall in no way be affected by any investigation of the subject
matter of such representations, warranties, and covenants.
4G. Amendments. This Agreement may be amended, altered or modified
by written instrument executed by each of the parties hereto.
4H. Entire Agreement. This Agreement, together with the Merger
Agreement, constitutes the entire understanding and agreement of the parties
hereto with respect to the subject matter hereof, except as provided herein, and
supersedes all prior agreements and understandings, written and oral, among the
parties with respect to the subject matter hereof.
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4I. Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." Whenever the context may require, any pronouns
used in this Agreement shall include the corresponding masculine, feminine or
neuter forms and the singular form of nouns and pronouns shall include the
plural and vice versa. The phrases "the date of this Agreement," "the date
hereof" and terms of similar import, unless the context otherwise requires,
shall be deemed to refer to the date set forth in the first paragraph of this
Agreement.
4J. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
4K. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if (a) delivered in person, (b) transmitted
by telecopy (with confirmation), (c) mailed by certified or registered mail
(return receipt requested and obtained) or (d) delivered by an express courier
(with confirmation) to the parties at the addresses set forth on the signature
pages hereto (or at such other address for a party as shall be specified by like
notice).
4L. Binding Effect; Persons Benefitting; No Assignment. This
Agreement shall inure to the benefit of and be binding upon the parties hereto,
and the respective successors and permitted assigns of such persons. Except as
set forth in the preceding sentence, nothing in this Agreement is intended or
shall be construed to confer upon any person other than the parties hereto and
their successors and permitted assigns any right, remedy or claim under or by
reason of this Agreement or any part hereof. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any of the
parties hereto, whether by operation of Applicable Law or otherwise; provided,
Parent may transfer its rights under this Agreement to a third party following
the Closing if such third party purchases substantially all of the business of
the Company; provided, further, that Parent may be permitted to transfer its
rights under this Agreement to an Affiliate of Parent if such Affiliate assumes,
jointly and severally with Parent, all of the obligations of Parent and will be
at least as likely as Parent to be able to consummate the transactions
contemplated by the Merger Agreement and proceed to Closing; and, provided,
further, Parent may transfer or collaterally assign its rights under this
Agreement to its lenders. Any assignment in violation of the foregoing shall be
null and void.
4M. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same agreement, it being
understood that all of the parties need not sign the same counterpart.
4N. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
GIVING EFFECT TO ANY CONFLICTS OF LAW PROVISIONS.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
DLJ INVESTMENT PARTNERS, L.P.
By: DLJ Investment Partners, Inc.
Managing General Partner
By: /s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx, Xx.
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Title: Managing Director
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DLJ INVESTMENT FUNDING, INC.
By: /s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx, Xx.
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Title: Managing Director
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DLJ ESC II L.P.
By: DLJ LBO Plans Management
Corporation, its General Partner
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
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Title: Attorney-in-Fact
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GOLFSMITH INTERNATIONAL, INC.
By: /s/ XXXX X. XXXX
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Name: Xxxx. X. Xxxx
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Title: Chief Executive Officer
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GOLFSMITH HOLDINGS, L.P.
By: Golfsmith GP Holdings, Inc., its
general partner
By: /s/ XXXXXXXX X. XXXX
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Name: Xxxxxxxx X. Xxxx
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Title: President
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GOLFSMITH GP HOLDINGS, INC.
By: /s/ XXXXXXXX X. XXXX
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Name: Xxxxxxxx X. Xxxx
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Title: President
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GOLFSMITH INTERNATIONAL HOLDINGS, INC.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx. X. Xxxxxx
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Title: President
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BGA ACQUISITION CORPORATION
By: /s/ XXXX X. XXXXXX
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Name: Xxxx. X. Xxxxxx
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Title: President
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____________________, 2002
Golfsmith International, Inc.
Re: Redemption Agreement
Ladies and Gentlemen:
Reference is hereby made to the Redemption Agreement, dated as of
September ___, 2002. Except as otherwise indicated herein, each term used herein
that is defined in the Redemption Agreement has the meaning given such term in
the Redemption Agreement.
As of _________, 2002 (the "Payment Date"), the total unpaid interest due
under the Notes equals $___________ and the total aggregate outstanding
principal amount of the Notes is $___________ (together, the "Payoff
Obligation").
Below are the wire transfer instructions for the payment of the Payoff
Amount and all other amounts payable to us pursuant to the Redemption Agreement.
Please send the Payoff Amount and such other amounts by wire transfer to:
ABA#
For the benefit of
Account#
We hereby acknowledge and agree that payment of the Payoff Amount,
together with $______ for each day after the Payment Date, will constitute
payment in full of the Company's obligations to DLJ under the Notes.
Sincerely,
[INSERT APPROPRIATE DLJ ENTITIES]
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By:
Title:
