Exhibit 4.7
Form of Stockholders Agreement dated January 22, 2002 among Xxxxxxxxxxx X.
Xxxxx, Xxxxxxxxx X. Xxxx, Xxxxxxx X. Xxxx, Xxxxx X. Xxxx, Xxxx Xxxxxxx Life
Insurance Company, Xxxxxxx Mezzanine Partners, L. P., CIBC WG Argosy Merchant
Fund 2, L. L. C., Co-Investment Merchant Fund, LLC and Booth Creek Ski Group,
Inc.
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of January 22, 2002, between Xxxxxxxxx
X. Xxxx, Xxxxxxxxxxx X. Xxxxx, Xxxxxxx X. Xxxx, and Xxxxx X. Xxxx (each, an
"Executive"), Xxxx Xxxxxxx Life Insurance Company ("Xxxxxxx"), Xxxxxxx Mezzanine
Partners L.P. ("HMP"), CIBC WG Argosy Merchant Fund 2, L.L.C. ("CIBC"),
Co-Investment Merchant Fund, LLC ("CIMF"; each of Xxxxxxx, HMP, CIBC and CIMF,
an "Investor") and Booth Creek Ski Group, Inc., a Delaware corporation (the
"Company").
The parties agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall
have the respective meanings given them in the Second Amended and Restated
Stockholders Agreement dated May 28, 2000, between Investors, Company, and the
other parties thereto (the "Restated Agreement").
2. Right of Co-Sale.
(a) Except as otherwise provided in section 2(e), if any Investor
or Affiliate (as the term is defined in Securities and Exchange
Commission regulations) of an Investor shall propose to Transfer any
Equity Securities (each a "Section 2 Seller"), then, as a condition
precedent thereto, such Section 2 Seller shall afford to each
Executive (or such Executive's legal representative or successor by
will or inheritance) the right to participate in such Transfer in
accordance with this section 2.
(b) Each Section 2 Seller shall give written notice to each
Executive (a "Section 2 Transfer Notice") not less than 35 nor more
than 45 days prior to any proposed Transfer of any Equity Securities.
Each such Section 2 Transfer Notice shall:
(i) specify (A) the number and kind of Equity Securities which
the Section 2 Seller proposes to Transfer, (B) the identity
of the proposed Transferee or Transferees of such Equity
Securities and (C) the time within which, the price and all
other terms and conditions upon which the Section 2 Seller
proposes to Transfer such Equity Securities;
(ii) make explicit reference to this section 2 and state that the
right of each Executive to participate in such Transfer
under this section 2 shall expire unless exercised within 10
days after receipt of such Section 2 Transfer Notice; and
(iii) contain an irrevocable offer by the Section 2 Seller to each
Executive to participate in the proposed Transfer, if
consummated, to the extent provided in section 2(c).
(c) Each Executive shall have the right to sell
to the proposed Transferee or Transferees Equity Securities
representing up to that number of the Equity Securities beneficially
owned by such Executive that is equal to the Co-Sale Percentage (as
hereinafter defined) (or, if such Executive shall elect, any lesser
number) of the Equity Securities beneficially owned and proposed to be
Transferred by the Section 2 Seller in the Transfer specified in the
Section 2 Transfer Notice, at the same price and on the same terms and
conditions as are applicable to the Equity Securities specified in the
Section 2 Transfer Notice. As used herein, the term "Co-Sale
Percentage" as applied to any Executive on any date shall mean a
fraction (expressed as a percentage), (A) the numerator of which shall
be the number of shares of Common Stock of the Company beneficially
owned and proposed to be Transferred by such Executive (which shall
not exceed the number of shares of Common Stock of the Company
beneficially owned by such Executive multiplied by a percentage equal
to the percentage that the Section 2 Seller proposes to sell of the
shares of Common Stock of the Company beneficially owned by the
Section 2 Seller) and (B) the denominator of which shall be the sum,
as of such date, of (1) the number of shares of Common Stock of the
Company beneficially owned and proposed to be Transferred by such
Executive and each other Executive that shall have timely elected to
participate in such proposed Transfer and (2) the number of shares of
Common Stock of the Company beneficially owned and proposed to be
Transferred by the Section 2 Seller.
(d) Each Executive must notify the Section 2 Seller, within 10 days
after receipt of the Section 2 Transfer Notice, if such Executive desires to
participate in the Transfer specified in the Section 2 Transfer Notice. The
failure of any Executive to provide such notice within such 10-day period shall,
for the purposes of this section 2, be deemed to constitute a waiver by such
Executive of its right to participate in such Transfer. The Section 2 Seller
will use reasonable efforts to obtain the agreement of the prospective
Transferee or Transferees to the participation of the Executive in such proposed
Transfer and will not consummate any such proposed Transfer unless each
Executive electing to participate therein is permitted to participate in
accordance with the provisions of this section 2. No Executive shall be
obligated to sell any Equity Securities pursuant to this section 2. Any and all
Transfers of Equity Securities by any Executive pursuant to this section 2 shall
be made either concurrently with or prior to the Transfer by the Section 2
Seller and upon identical terms and conditions.
(e) Notwithstanding anything to the contrary contained in this
section 2, no Executive shall have any rights pursuant to this section 2 to
participate in any of the following Transfers:
(i) any Transfer to the public pursuant to an effective
registration statement under the Securities Act;
(ii) any Transfer by an Investor to another Investor or by an
Investor to any Affiliate of such Investor that agrees to be
bound by this section 2; or
(iii) any Transfer of shares of Common Stock of the Company
resulting from the conversion of shares of a class of Common
Stock of the Company to the other class of Common Stock of
the Company.
3. Offer to Purchase All Shares. If (i) the Investors, whether
individually or as a group, receive a Bona Fide Offer to purchase all, but not
less than all, of their Equity Securities in a single transaction or a series of
related transactions, (ii) the terms and conditions applicable to each Investor
in such Bona Fide Offer are identical in all material respects, (iii) the Bona
Fide Offer shall be conditioned on all Executives' Transferring all of their
Equity Securities to the person making the Bona Fide Offer on the same terms as
shall be applicable to each Investor, and (iv) the Investors elect in writing to
accept such Bona Fide Offer and to consummate the sale of the Equity Securities
contemplated therein, then each Executive (or such Executive's legal
representative or successor by will or inheritance) shall be required to sell
all of such Executive's Equity Securities pursuant to such Bona Fide Offer and
to cooperate in good faith with the Investors in consummating such sale(s);
provided, however, that any sale made pursuant to this section 3 shall be
consummated within one hundred eighty (180) days after the Bona Fide Offer is
received; and provided, further, that no Executive shall be required to
consummate any such sale unless the Investors concurrently consummate such Bona
Fide Offer. (For purposes hereof, the term "Owner" in the definition of Bona
Fide Offer in the Restated Agreement shall mean "Investor" as defined herein.)
4. Registration Rights. If any Investor shall propose to sell
Registrable Shares, as defined in a Second Amended and Restated Securities
Purchase Agreement dated May 28, 2000 between Investors and Company ("Purchase
Agreement"), in a public offering ("Offering") pursuant to Section 11 of the
Purchase Agreement, other than an initial public offering ("IPO") or the lockup
period referred to in the last sentence, such Investor shall permit each
Executive (or such Executive's legal representative or successor by will or
inheritance) to sell in the Offering, instead of shares that the Investor would
have been permitted to sell, but for operation of this provision, a number of
shares of Class A Common Stock bearing the same ratio to the total number of
shares of Class A Common Stock owned of record by such Executive immediately
before the effectiveness of the registration statement for the Offering, as the
number of Registrable Shares that such Investor would have been permitted to
sell, but for operation of this provision, shall bear to the total number of
Registrable Shares beneficially owned by such Investor as of such date. Promptly
after it is first proposed that such Investor's Registrable Shares will be
included in the Offering, Company shall notify each Executive of the amount of
Class A Common Stock that such Executive would be able to sell in the Offering,
based on information available as of the immediately preceding date, and each
Executive shall promptly thereafter notify Company and such Investor of the
number of shares of Class A Common Stock to be sold by such Executive in the
Offering. If the number of such Investor's Registrable Shares that may be
allowed to be sold in the Offering shall change for any reason (other than on
account of the operation of this provision), Company shall promptly notify each
Executive of any resulting change in the number of shares of such Executive's
Class A Common Stock that can be sold in the Offering, and such Executive shall
promptly notify the Company and such Investor of the number of shares of Class A
Common Stock that Executive shall sell in the Offering, in light of such change.
Each Executive's rights under this section shall be conditioned on such
Executive's complying with requirements applicable to such Investor in
connection with the Offering, including signing any underwriting agreement,
indemnification agreement, or underwriters lockup agreement, and supplying
information, and to all provisions of Section 11 of the Purchase Agreement
relating to or limiting such Investor's right to have Registrable Shares
registered for sale or to sell Registrable Shares in the Offering and Company's
obligations in respect thereof. In connection with an IPO, each Executive agrees
to sign a customary underwriters lockup expiring not sooner than six or later
than 12 months after the date of effectiveness of the registration statement
filed in connection with such IPO.
5. Legends. So long as any Equity Securities are subject to the
provisions ofthis Agreement, all certificates or instruments representing such
Equity Securities shall bear a legend in substantially the following form:
"The securities represented hereby are subject to the terms of a
Stockholders Agreement, dated as of May 1, 2000, by and between Booth
Creek Ski Group, Inc. (the "Company") and certain other persons. A copy
of such agreement is on file at the Company's principal office and,
upon written request to the Company, a copy thereof will be provided
without charge to appropriately interested persons."
Each Executive agrees that any certificate or instrument representing
such Executive's Equity Securities shall also bear appropriate legends to
reflect the existence of any other restriction to which such Equity Securities
shall be subject, provided that the Company shall issue a replacement
certificate or other instrument not bearing such legend with respect to any such
Equity Securities at such time as any such restriction shall terminate with
respect thereto.
6. Termination of this Agreement. This Agreement shall terminate and
shall be of no force or effect upon the consummation of a Qualified Public
Offering.
7. Notices. All communications provided for herein shall be delivered,
mailed or sent by facsimile transmission to the any Investor or Company at the
address and/or to the telecopy number of such party as is specified on Exhibit A
or to any Executive as is reflected in Company's payroll records (or, in the
case of any Person who shall become party hereto after the date hereof, at such
address and/or to such telecopy number as shall have been specified to each of
the other parties hereto at the time such other Person shall become a party to
this Agreement). The address and/or telecopy number of any party hereto may be
changed by such party to such other address and/or telecopy number as shall be
furnished in writing by such party to each of the other parties hereto in
accordance with the provisions of this section. Any communication provided for
herein shall become effective only upon and at the time of receipt by the Person
to whom it is given.
8. Waivers and Amendments. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by all parties.
9. Successors and Assigns; Specific Performance. This Agreement shall
bind and inure to the benefit of and be enforceable by the parties hereto and
their respective assigns, executors, heirs and successors. The parties hereto
stipulate that the remedies at law of any party hereto in the event of any
default or threatened default by any other party hereto in the performance of or
compliance with the terms hereof are not and will not be adequate and that, to
the fullest extent permitted by law, such terms may be specifically enforced by
a decree for the specific performance thereof, whether by an injunction against
violation thereof or otherwise.
10. Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement,
including the validity hereof and the rights and obligations of the parties
hereunder, and all amendments and supplements hereof and all waivers and
consents hereunder, shall be construed in accordance with and governed by-the
domestic substantive laws of The Commonwealth of Massachusetts without giving
effect to any choice of law or conflicts of law provision or rule that would
cause the application of the domestic substantive laws of any other
jurisdiction. Each of the parties hereto, to the extent that it may lawfully do
so, hereby consents to service of process, and to be sued, in The Commonwealth
of Massachusetts and consents to the jurisdiction of the courts of The
Commonwealth of Massachusetts and the United States District Court for the
District of Massachusetts, as well as to the jurisdiction of all courts to which
an appeal may be taken from such courts, for the purpose of any suit, action or
other proceeding arising out of any of its obligations hereunder or with respect
to the transactions contemplated hereby, and expressly waives any and all
objections it may have as to venue in any such courts. Each of the parties
hereto further agrees that a summons and complaint commencing an action or
proceeding in any of such courts shall be properly served and shall confer
personal jurisdiction if served personally or by certified mail (return receipt
requested) in accordance with the Notices section or as otherwise provided under
the laws of The Commonwealth of Massachusetts. Notwithstanding the foregoing,
each of the parties hereto agrees that nothing contained in this section shall
preclude the institution of any such suit, action or other proceeding in any
jurisdiction other than The Commonwealth of Massachusetts. EACH OF THE PARTIES
HERETO IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION OR
OTHER PROCEEDING INSTITUTED BY OR AGAINST SUCH PARTY IN RESPECT OF ITS
OBLIGATIONS HEREUNDER OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11. Miscellaneous. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. This
Agreement embodies the entire agreement and understanding among the parties
hereto and supersedes all prior agreements and understandings relating to the
subject matter hereof. Each covenant contained herein shall be construed (absent
an express provision to the contrary) as being independent of each other
covenant contained herein, so that compliance with any one covenant shall not
(absent such an express contrary provision) be deemed to excuse compliance with
any other covenant. If any provision in this Agreement refers to any action
taken or to be taken by any Person (or which such Person is prohibited from
taking), such provision shall be applicable, whether such action is taken
directly or indirectly by such Person, whether or not expressly specified in
such provision. In case any provision in this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby. This Agreement may be executed in any number of counterparts
and by the parties hereto on separate counterparts but all such counterparts
shall together constitute but one and the same instrument. Each of the
Executives shall vote such Executive's Equity Securities in the same way that
Owners are required to vote their Equity Securities pursuant to Section 5 of the
Restated Agreement. None of the Executive's Equity Securities may be
transferred, unless the proposed transferee shall agree to be bound by Section 3
and the immediately preceding sentence with respect to such Equity Securities.
[The remainder of this page is left blank intentionally.]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XXXX XXXXXXX LIFE INSURANCE
COMPANY (formerly known as
Xxxx Xxxxxxx Mutual Life
Insurance Company)
________________________ By: ______________________________________
Xxxxxxxxx X. Xxxx (Title)
CIBC WG ARGOSY MERCHANT FUND 2, L.L.C.
________________________ By: ______________________________________
Xxxxxxxxxxx X. Xxxxx (Title)
________________________ XXXXXXX MEZZANINE PARTNERS, L.P.
Xxxxxxx X. Xxxx
________________________ By: Xxxxxxx Mezzanine Investments LLC,
Xxxxx Xxxx its general partner
By: Xxxx Xxxxxxx Life Insurance Company
(formerly known as Xxxx Xxxxxxx
Mutual Life Insurance Company), its
investment manager
____________________________________________
Name:_______________________________________
Title:______________________________________
CO-INVESTMENT MERCHANT FUND, LLC
By__________________________________________
BOOTH CREEK SKI GROUP, INC.
By__________________________________________
The undersigned consents to the foregoing agreement:
BOOTH CREEK PARTNERS LIMITED II, L.L.L.P
By:________________________________
General Partner
Exhibit A
Addresses for Notices
If to Xxxxxxx: Xxxx Xxxxxxx Life Insurance Company
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Bond and Corporate Finance
Department T-57
Telecopy No.: (000) 000-0000
with a copy (which shall
not constitute notice) to: Xxxxxx, Hall & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Xx., Esq.
Telecopy No.: (000) 000-0000
If to CIBC: CIBC WG Argosy Merchant Fund 2, L.L.C.
000 Xxxxxxxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx
Telecopy No.: (000) 000-0000
with a copy (which shall
not constitute notice) to: Xxxxxx Flyer
c/o CIBC World Markets Corp.
000 Xxxxxxxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
and
Xxxxx Xxxxxxx, Esq.
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
If to HMP: c/o Xxxx Xxxxxxx Life Insurance Company
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Manager
Investment Accounting Division, B-3
with a copy (which shall
not constitute notice) to: Xxxxxx, Hall & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Xx., Esq.
Telecopy No.: (000) 000-0000
If to CIMF: Co-Investment Merchant Fund, LLC
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxx Xxxxx
with a copy (which shall
not constitute notice) to: Xxxxxx Flyer
c/o Co-Investment Merchant Fund, LLC
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
If to the Company: Booth Creek Ski Group, Inc.
0000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxx
Telecopy No.: (000) 000-0000
with a copies (which shall
not constitute notice) to: Booth Creek Ski Group, Inc.
0000 Xxxxxxx 000, Xxxxx 0
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Telecopy No.: (000) 000-0000
and
Loeb & Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telecopy No.: (000) 000-0000
