EXHIBIT 10.3
AGREEMENT DATED ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇: WS ACQUISITION LLC, a limited liability company duly
constituted under the laws of New York;
(hereinafter referred to as "WS Acquisition")
AND: THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED
STATES;
(hereinafter referred to as "Equitable Life")
AND: THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY;
(hereinafter referred to as "Northwestern Mutual")
AND: PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY;
(hereinafter referred to as "Phoenix Home Life")
AND: BUSINESS MEN'S ASSURANCE COMPANY;
(hereinafter referred to as "Business Men's Assurance")
AND: INDIANAPOLIS LIFE INSURANCE COMPANY;
(hereinafter referred to as "Indianapolis Life
Insurance")
AND: GE CAPITAL ASSURANCE COMPANY;
(hereinafter referred to as "GE Capital")
(WS Acquisition, Equitable Life, Northwestern Mutual,
Phoenix Home
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Life, Business Men's Assurance, Indianapolis Life
Insurance and GE Capital collectively referred to as
"Shareholders")
AND: CAISSE DE DEPOT ET PLACEMENT DU QUEBEC, a legal person
duly constituted under the laws of Quebec;
(hereinafter referred to as "Caisse")
AND: THE HOCKEY COMPANY (formerly SLM International, Inc.), a
corporation incorporated under the laws of Delaware;
(hereinafter referred to as the "Company")
WHEREAS pursuant to a Restated and Amended Credit Agreement dated
March 14, 2001, executed among others by the Company and the Caisse, the
Caisse has extended credit to the Company on terms and conditions set forth
therein (as amended and modified from time to time in accordance with its
terms (the "Credit Agreement");
WHEREAS each of WS Acquisition, Equitable Life, Northwestern Mutual,
Phoenix Home Life, Business Men's Assurance, Indianapolis Life Insurance and
GE Capital are, collectively, the record and beneficial owners of 5,832,092
Common Shares (the whole as set forth in Schedule A attached hereto) and are
parties to a stockholders agreement among certain stockholders of the Company
dated as of April 11, 1997;
THEREFORE, THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. RECITALS AND SCHEDULES
The recitals and the following schedules form an integral part of this
Agreement:
Schedule A - Table of ownership of Common Shares
Schedule B - Definitions
Schedule C - Formula for conversion
2. DEFINITIONS
2.1. As used in this Agreement, the capitalized terms shall have
the meanings set forth in Schedule B and:
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"AGREEMENT" means this agreement dated the date hereof, as
well as any rider, amendment, modification or intervention
which might be added thereto in writing; the Agreement is also
sometimes designated by the expressions "hereof", "herein" and
"hereunder";
"SHARES" means any Common Shares and any other equity or
voting share of the capital stock of the Company, as the case
may be.
3. GENERAL UNDERTAKING AND SCOPE OF AGREEMENT
3.1. Each of the Shareholders undertakes to exercise the voting
rights attaching to the Shares it holds as well as any other
voting or consent right it may exercise, to cause its
designees to the Board of Directors to act or refrain from
acting, and to do and cause to be done anything and take and
cause to be taken any action, that may be useful or necessary
to ensure that all of the obligations of the Shareholders
and/or the Company stipulated herein or arising herefrom are
fully satisfied in a timely manner.
3.2. The parties hereto agree, reciprocally and irrevocably, to do
all things necessary and conduct themselves in all respects in
such manner so as to give full effect to the provisions of
this Agreement.
3.3. Any breach of any of the provisions of this Agreement, without
prejudice to any other recourse or remedy provided by this
Agreement, by law, at equity or otherwise, shall give rise to
a recourse for injunctive relief or to any other recourse
intended to stop the breach, which the parties recognize to be
an appropriate recourse and to which they expressly and
irrevocably consent.
3.4. Each of the parties hereto undertakes to act in such a manner
as not to infringe any law or regulation applicable to such
party in the exercise of its rights and the performance of its
obligations, and to exercise its rights and perform its
obligations in full compliance with the rights and obligations
provided for by any law or regulation applicable to such party
and, if such infringement would be the result, to refrain from
acting.
3.5. The principles set out in this Section 3 shall apply to all
other provisions of this Agreement which shall be read and
interpreted in accordance with this Section 3.
4. SALE TO PAY FACILITY 2
4.1. In the event that Facility 2 is not repaid in full on the
Facility 2 Maturity Date, the Caisse may:
(i) require the Company to convert the outstanding amount
(consisting of the principal capital and Capitalized Interest)
owing under Facility 2 into, and issue and deliver to the
Caisse, Common Shares of the Company (the
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"Resultant Shares"). The number of Resultant Shares shall be
determined on the basis of five times the EBITDA of the Company
for the previous fiscal year in accordance with the formula
attached in Schedule C hereto; provided that the number of Common
Shares issued pursuant to such conversion right shall be limited
such that, after exercising the conversion right and/or after the
exercise of the Warrants held by the Caisse which are
exchangeable for Common Shares, the Caisse shall not own more
than 50.1% of the issued and outstanding voting shares of the
capital stock of the Company (hereinafter, the "Equity
Conversion"); and/or
(ii) subject to the terms and conditions of the Intercreditor
Agreement, require that the Company proceed with the sale of all
or a portion of the assets of the Company and apply the proceeds
of any such sale in reduction of the indebtedness owing to the
Caisse in a manner consistent with the terms of the Intercreditor
Agreement (hereinafter the "Sale").
4.2. In the event that the Caisse wishes to exercise its rights under
section 4.1(i) and/or (ii), it shall send a notice to that effect
(the "Exercise Notice") to the Company and all of the
Shareholders. With respect to the Sale, the Caisse shall have the
right to designate the financial advisor or investment bankers to
be retained by the Company for such purposes, which financial
advisor or investment bankers shall be an independent, top tier
Canadian or nationally recognized U.S. investment banking firm
and the Caisse reserves its right to participate in all stages of
the Sale it being acknowledged that such participation right does
not grant a right of first refusal in favour of the Caisse.
4.3. The Shareholders hereby authorize and consent to this Agreement
and each of the transactions contemplated hereby and covenant
that they will fully cooperate with the Caisse in the process of
the Equity Conversion and/or the Sale, including, without
limiting the generality of the foregoing, causing their
representative(s) on the Board of Directors to act or refrain
from acting and voting or giving consent with respect to their
Shares in order to support a consolidation, merger or
amalgamation of the Company or a sale of all or substantially all
or any portion of its assets and to take all other actions
requested by the Caisse to facilitate the Equity Conversion
and/or the Sale.
4.4. The Shareholders covenant that they shall not assign, transfer,
sell or otherwise dispose of any of their Shares unless the
Person that so receives or purchases said Shares is also bound by
the terms and conditions of this Agreement as a Shareholder in a
duly authorized and executed writing delivered (and reasonably
satisfactory) to the Caisse and the Company.
4.5. The Company represents and warrants to, and agrees with, the
Caisse that all Resultant Shares have been duly authorized and
reserved for issuance,
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and when issued, will be validly issued, fully paid and non
assessable, free of all liens, encumbrances, claims, taxes,
charges or preemptive rights.
5. DRAG ALONG RIGHTS
5.1. Subject to Section 5.3, in the event that the Caisse (for the
purposes of this Section 5, the "Vendor") receives an offer to
purchase (the "Offer") all of the issued and outstanding Common
Shares of the Company which it is willing to accept, the
Shareholders undertake to sell (the "Drag-Along Right") all of
their Shares on the same price, terms and conditions.
5.2. The Drag-Along Right shall be exercised by the Vendor giving
notice to the Shareholders within 30 days following receipt of
the Offer and by undertaking to complete the transaction within
30 days following the expiry of the said 30-day period.
5.3. This section shall only be applicable (i) in the event that the
Caisse holds 50.1% of the outstanding Common Shares of the
Company and (ii) in the event that the Offer is received as part
of a sale auction conducted by a top tier Canadian or nationally
recognized U.S. investment banking firm.
6. NOTICE
6.1. Any demand, notice or other communication (hereinafter referred
to as a "Communication") to be given to a party in connection
with this Agreement shall be given in writing and shall be given
by personal delivery, by registered mail or by transmittal by
facsimile addressed to the recipient at the address indicated
opposite its name on the signature pages hereto, or at such other
address as may be notified by such party to the others pursuant
to this Section 6.1.
6.2. Any Communication given by personal delivery shall be
conclusively deemed to have been given on the day of actual
delivery thereof and, if given by registered mail, on the fifth
Business Day following the mailing thereof and, if given by
facsimile on the day of transmittal thereof if given during
normal business hours of the recipient or on the next Business
Day if given after normal business hours on any day. If the party
giving any Communication knows or ought to know of any
difficulties with the postal system or facsimile transmission
system which might affect the delivery of mail or facsimile
transmission, any such Communication shall be given by personal
delivery or by other methods of communication not affect by the
said difficulties.
7. GOVERNING LAW; JURISDICTION; SERVICE OF PROCESS.
7.1. This Agreement shall be governed and construed in accordance with
the internal laws of the State of New York (including NYGOL
Sections 5-1401 and 5-1402).
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7.2. (A) The Shareholders and the Company each hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any Federal or State court located
in the Borough of Manhattan, the City of New York, in any action
or proceeding arising out of or relating to this Agreement or any
other related document to which it is a party, or for recognition
or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and
determined in such courts. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. (B) Nothing
in this Agreement shall affect any right that the Caisse may
otherwise have to bring any action or proceeding relating to this
Agreement against the Shareholders or the Company or their
respective properties in the courts of any other jurisdiction.
7.3. Each of the Shareholders and the Company irrevocably consents to
the service of any and all process in such suit, action or
proceeding referred to in Section 7.2(A) by mailing of copies of
such process to it at its address provided opposite its name on
the signature pages hereto. All mailings under this Section shall
be by certified mail, return receipt requested. Nothing in this
Agreement will affect the right of any party to this Agreement to
serve process in any other manner permitted by law.
7.4. Each of the Shareholders and the Company hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court
referred to in Section 7.2(A). Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such
action or proceeding referred to in Section 7.2(A) in any such
court.
8. GENERAL
8.1. As the context requires, words importing the singular number
include the plural, words importing the masculine gender include
the feminine gender and vice versa.
8.2. This Agreement constitutes the complete and final agreement among
the parties regarding the matters set forth herein and replaces
all prior contracts, agreements, commitments and understandings,
verbal and written.
8.3. No modification or amendments to this Agreement shall be valid
and binding unless set forth in writing and duly executed by all
parties hereto and no waiver of any breach of any term or
provision of this Agreement
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shall be effective or binding unless made in writing and signed
by the party purporting to give same and, unless otherwise
provided, shall be limited to the specific breach waived.
8.4. Any decision of a court to the effect that any of the provisions
of this Agreement are null or unenforceable shall in no way
affect the other provisions of this Agreement or their validity
or enforceability.
8.5. The insertion of section headings is for ease of reference only
and shall not affect the interpretation of this Agreement.
8.6. All executed copies of this Agreement constitute originals of one
and the same agreement.
8.7. This Agreement may be executed by the parties hereto in
counterparts at different times and in different places without
the parties hereto being in each other's presence.
8.8. This Agreement will enure to the benefit of and be binding upon
the respective successors and permitted assigns of the parties
hereto.
8.9. Time is of the essence in this Agreement. Each party shall be in
default by the mere lapse of time for the performance of any of
its obligations hereunder without the necessity of any notice to
that effect.
8.10. The obligations of each Shareholder are independent of the
obligation of any other Shareholder and is a several (and not
joint) obligation.
8.11. This Agreement shall remain in effect until Facility 2 has been
repaid in full in cash.
IN WITNESS WHEREOF, the parties have signed this agreement at ________,
on March 14, 2001.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ LLC
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▇▇▇▇▇-▇▇▇▇, ▇.▇.▇. By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE EQUITABLE LIFE ASSURANCE SOCIETY OF
THE UNITED STATES
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Title: Investment Officer
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NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By:
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Name:
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Title:
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PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
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BUSINESS MEN'S ASSURANCE COMPANY
By:
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Name:
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Title:
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INDIANAPOLIS LIFE INSURANCE COMPANY
By:
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Name:
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Title:
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GE CAPITAL ASSURANCE COMPANY
By:
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Name:
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Title:
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THE HOCKEY COMPANY
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▇.▇. ▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Williston, Vermont --------------------------------------
05495, U.S.A. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Chief Operating Officer
Attention: President
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
CAISSE DE DEPOT ET PLACEMENT DU QUEBEC
c/o CDP Capital d'Amerique Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ -------------------------------------
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇