EXHIBIT 10.4
Agreement entered into on March 14, 2001.
AMONG: WS ACQUISITION LLC, a limited
liability company duly constituted
under the laws of New York, acting
through and represented by ▇▇▇▇ ▇.
▇▇▇▇▇▇▇ duly authorized for the
purposes hereof as he so declares;
(hereinafter referred to as "WS
Acquisition")
AND: CAISSE DE DEPOT ET PLACEMENT DU
QUEBEC, a legal person duly
constituted under the laws of
Quebec, acting through and
represented by ▇▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ duly authorized for
the purposes hereof as they so
declare;
(hereinafter referred to as
"Caisse")
AND: THE HOCKEY COMPANY (formerly SLM
International, Inc.), a
corporation incorporated under the
laws of Delaware, acting through
and represented by ▇▇▇▇▇▇▇ ▇▇▇▇▇
duly authorized for the purposes
hereof as he so declares;
(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 pursuant to the Credit Agreement, as a portion of the
inducement to the Caisse to extend the credit provided for therein and as a
condition thereto, the Company has agreed to issue certain common share
purchase warrants (the "Warrants") permitting the Caisse to purchase common
shares in the capital stock of the Company with a par value of US $0.01 (the
"Common Shares");
WHEREAS WS Acquisition, is the beneficial owner of 3,297,814 Common
Shares;
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WHEREAS the Caisse wishes to have certain rights in connection with
the ownership of the Warrants, which rights are not conditional upon the
exercise of the Warrants, or the Common Shares issued or issuable upon
exercise of any of the Warrants.
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: Intervention Form
2. DEFINITIONS
2.1. As used in this Agreement, the following terms shall have
the following meanings:
"AFFILIATE" of any specified Person means any other Person
directly or indirectly Controlling or Controlled by or under
direct or indirect common Control with such specified
Person;
"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";
"ALIENATE" (and "ALIENATION") means to mortgage, pledge,
encumber with a charge, priority, appropriation or call
option, grant a security interest with respect to or
otherwise give as security or alienate in any manner
whatsoever, or any attempt to perform any of those
operations;
"BOARD OF DIRECTORS" means the Board of Directors of the
Company;
"BUSINESS DAY" means a day other than a Saturday, Sunday or
statutory holiday in Quebec, Canada and in the event that
any action to be taken hereunder falls on a day which is not
a Business Day, then such action shall be taken on the next
succeeding Business Day;
"EXECUTIVE COMMITTEE" means the executive committee formed
by the Board of Directors;
"CONTROL" as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities
or by contract or otherwise;
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"DIRECTOR" means a natural person sitting on the Board of
Directors;
"DISPOSE" (and "DISPOSAL") means to sell, transfer, exchange,
give, dispose of or otherwise assign in any manner whatsoever, or
any attempt to perform any of those operations;
"GOOD FAITH OFFER" means an offer addressed by a Third Party to
WS Acquisition for the Disposal of all or part of its Shares when
the purchase price of the Shares, if any, is payable in cash or
by bank draft;
"PARTIES" means, collectively, WS Acquisition, the Caisse and the
Company;
"PERSON" means any individual, company, corporation, partnership,
limited liability company, trust, sole proprietorship, division,
government or other entity howsoever designated or constituted;
"SHARE" means any Common Share and any other equity or voting
share of the capital stock of the Company, as the case may be;
"THIRD PARTY" means any Person who is neither an Affiliate of WS
Acquisition or a shareholder of the Company; and
"WARRANT A" means that warrant representing 539,974 of the issued
and outstanding Common Shares of the Company as provided for in a
Warrant Agreement entered into between the Company and the Caisse
on March 14, 2001.
2.2. All capitalised terms used but not defined herein will have the
meanings given to them in the Credit Agreement.
3. GENERAL UNDERTAKING AND SCOPE OF THE AGREEMENT
3.1. WS Acquisition 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 designee(s) 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 WS Acquisition and/or the Company stipulated herein or arising
herefrom are fully satisfied in a timely manner.
3.2. The Parties 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
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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 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.
3.6. For the application of the rights granted to it herein, the
Caisse is deemed to hold the Shares that are issuable upon the
exercise of all of the Warrants (whether or not any of the
Warrants are then exercisable), except as specifically provided
otherwise.
4. PREEMPTIVE RIGHT
4.1. Other than Shares to be issued in any public offering or as a
consideration for the payment of any assets or shares of
another Person acquired by the Company and Shares issued to
Caisse or its Affiliates or transferees upon the exercise of
the Warrants or conversion of its indebtedness, any new Shares
to be issued by the Company shall first be offered by the
Company to the Caisse which shall then have the prior right to
acquire same, upon the terms and conditions set forth in this
Section.
4.2. Any proposed issue of Shares, including the issue price and
other terms and conditions thereof, shall be disclosed in
writing by the Company to the Caisse (the "Initial Notice").
4.3. The Caisse may then exercise its right to purchase a pro rata
portion of the Shares to be issued at their issue price and
upon the terms and conditions of their issuance by means of a
written notice to the Company (the "Acceptance Notice"),
within 20 Business Days following receipt of the Initial
Notice, failing which the Caisse shall be irrevocably deemed
to have refused to purchase the Shares so to be issued. The
Acceptance Notice shall set forth the number of shares the
Caisse wishes to purchase.
4.4. In the event of actual or deemed refusal by the Shareholders
to purchase all or part of the Shares to be issued pursuant to
the foregoing provisions, the Company may issue such remaining
Shares to any Person within the period of 90 days following
the date of their last actual or deemed refusal, at the same
price and upon substantially the same terms and conditions
offered to the Caisse, failing which if the Company still
wishes to issue
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such Shares, it shall be required to re-offer them to the
Caisse in the manner set forth herein.
4.5. In calculating Caisse's pro rata portion in section 4.3 herein
the number of Shares that would be held by the Caisse upon the
exercise of the warrants that may be exercisable at the date
of the Initial Notice shall be compared to the total number of
Shares of common stock outstanding or issuable pursuant to
options, warrants, rights or securities convertible into or
exchangeable or exercisable for common stock of the Company on
the date of the Initial Notice.
5. TAG ALONG RIGHT
5.1. If at any time WS Acquisition wishes to Alienate or Dispose of
(each, a "Transfer") any of its Shares in one or a series of
related transactions to any Person or Persons other than any
Affiliate of WS Acquisition that becomes a party to this
Agreement as provided herein in Section 9 (such Person or
Persons, a "Transferee"), the Caisse shall be entitled to
exercise a tag along right such that the Transferee will purchase
the Shares of the Caisse that it holds or that it may hold after
exercising its Warrants (the "Tag Along Right").
5.2. Any proposed Alienation or Disposal of Shares by WS Acquisition
shall be disclosed in writing by WS Acquisition to the Caisse
(the "Transfer Notice")
5.3. If the Caisse wishes to exercise its Tag Along Right, it shall
notify WS Acquisition by written notice (the "Tag-Along Notice")
on or before the expiration of 10 Business Days following receipt
of the Transfer Notice that the Caisse desires to Transfer to the
proposed Transferee all or a portion of its Shares on the same
price, terms and conditions set forth in the Transfer Notice. The
Tag-Along Notice shall specify the number of Shares that the
Caisse desires to Transfer (the "Tag-Along Amount"). The maximum
number of Shares that the Caisse shall be entitled to Transfer
hereunder shall be determined by multiplying the number of Shares
held by the Caisse at the time of the Transfer Notice by a
fraction, the numerator of which is the number of Shares proposed
to be Transferred to the Transferee by WS Acquisition and the
denominator of which is the number of Shares then owned by WS
Acquisition. If the Caisse does not provide WS Acquisition with a
Tag Along Notice within the period specified above, WS
Acquisition shall be free to consummate the sale of Shares to the
Transferee in the amount and at not more than the purchase price
set forth in the Transfer Notice and on substantially the same
other terms and conditions set forth in the Transfer Notice
within the 60 day period following the Transfer Notice.
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5.4. Any representation or indemnity provided by the Caisse to the
Transferee in a purchase agreement relating to such Transfer
will relate only to the Shares transferred by it.
5.5. The Company shall, upon request by the Caisse, issue to the
Caisse one or more stock certificates registered in the names
and in the denominations (aggregating in a number equal to the
original denomination) requested by the Caisse, to facilitate
any partial sale of Shares pursuant to this Section 5.
5.6. To the extent that any prospective Transferee is unwilling or
otherwise refuses to purchase Shares as provided in this
Section 5 from the Caisse (other than because the Caisse
refuses to sell such Shares on the same price and other terms
and conditions (except as specified in Section 5.3 or 5.4) and
on the same closing date set forth in the relevant Transfer
Notice), WS Acquisition shall not Transfer to such prospective
Transferee any Shares, unless, simultaneously with such
Transfer, WS Acquisition shall purchase such Shares from the
Caisse on the same price and other terms and conditions
specified in the Transfer Notice.
5.7. If WS Acquisition Transfers any of its Shares to a Transferee in
one or a series of related transactions within 185 days of the
date of this Agreement, (i) WS Acquisition shall immediately
notify the Company and the Caisse of the details of such
transaction, and (ii) the Company shall (unless the Caisse
instructs the Company expressly to the contrary) pay to the
Caisse a cash fee (the "CASH FEE") equal to the product of (A) a
fraction, the numerator of which is the number of Shares so
Transferred by WS Acquisition, and the denominator of which is
the number of Shares owned by WS Acquisition immediately prior to
such Transfer, TIMES, (B) the number of Shares owned (or deemed
owned upon exercise of Warrant A) by Caisse, TIMES, (C) the per
Share price realized by WS Acquisition in such Transfer. The Cash
Fee shall be paid by the Company to Caisse within 5 Business Days
of the date of the closing of the Transfer by WS Acquisition.
Upon receipt of the Cash Fee, Caisse shall deliver to the Company
a portion (equal to the fraction in clause (A) of this Section
5.7) of Warrant A for cancellation by the Company and Caisse
shall not be entitled to receive any other consideration than the
Cash Fee in connection with such transaction. It is agreed
between the parties that if by May 14, 2001 a fully financed firm
offer is received by the Company which would be sufficient to
repay Facility 2 and if Facility 2 is so repaid in full as a
result of the above-mentioned offer no later than June 13, 2001,
the Caisse shall promptly return to the Company one third [ie.
2.5%/7.5%] of the Cash Fee previously received by the Caisse from
the Company. The Company represents and warrants to the Caisse
that the Board of Directors has specifically approved the
transactions contemplated by this Section 5.7 and such
transactions are, therefore, intended to be exempt from Section
16(b) of the Securities Exchange Act of 1934 pursuant to Rule
16b-3(e).
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6. BOARD OF DIRECTORS
6.1. Upon the exercise by the Caisse of any of its Warrants or the
conversion of the outstanding amount of Facility 2 into Shares of
the Company, the Caisse shall be entitled to have a pro rata
number of designees on the Board of Directors based on the number
of Shares held by the Caisse on a fully diluted basis, with a
minimum of one Director at all times.
6.2. For as long as the Borrowings have not been repaid in full, the
Caisse shall be entitled to receive notice of and have a
representative attend as observer at all meetings of the Board of
Directors. It is understood that such observer shall not have a
right to vote but shall have the right to be heard at such
meetings.
6.3. Notwithstanding the provisions of Section 6.1 herein, commencing
no later than March 16, 2001 and for so long as Facility 2 has
not been repaid in full, the Caisse shall be entitled to have two
designees appointed to the Board of Directors of the Company,
and, from and after April 16, 2001, at least three members of the
Board of Directors of the Company shall have relevant operating
or industry experience (the "Industry Board Members"), it being
understood that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ shall be deemed
to have the relevant experience. Meetings of the Board of
Directors shall be held at least bi-monthly, commencing March
2001. There shall be meetings of the Executive Committee of the
Company every month in which there is not a meeting of the Board
of Directors and at least two of the Industry Board Members shall
be appointed to the Executive Committee. It is agreed for the
purposes hereof that the Caisse nominees shall be considered as
Industry Board Members.
6.4. The Caisse shall have the right to revoke the designation of
any person whom they have designated to sit on the Board of
Directors and to designate any other person in his place. Any
vacancy created on the Board of Directors may be filled within
90 days following the creation of such vacancy by a
representative designated by the Caisse who had designated
such person to the Board of Directors.
6.5. Each Director designated by the Caisse shall be promptly
reimbursed by the Company for the reasonable travel and other
expenses incurred to attend meetings of the Board of Directors
and of Committees of the Board of Directors, together with
benefits and stipends payable to Directors generally, if any.
6.6. The Company shall purchase and maintain in force and the
Company shall adopt a By-law providing that it shall purchase
and maintain in force insurance in respect of the civil
liability of the Directors when acting in such capacity.
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7. NOTICE
7.1. 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 7.1.
7.2. 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.
8. GOVERNING LAW; JURISDICTION; SERVICE OF PROCESS.
8.1. This Agreement shall be governed and construed in accordance with
the internal laws of the State of New York (including ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇-▇▇▇▇ and 5-1402).
8.2. (A) WS Acquisition 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 WS Acquisition or the Company or their
respective properties in the courts of any other jurisdiction.
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8.3. Each of WS Acquisition and the Company irrevocably consents to
the service of any and all process in any suit, action or
proceeding referred to in Section 8.2(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.
8.4. Each of WS Acquisition 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 8.2(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 8.2(A) in any such
court.
9. GENERAL
9.1. As the context requires, words importing the singular number
include the plural, words importing the masculine gender include
the feminine gender and vice versa.
9.2. 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.
9.3. No modification or amendments to this Agreement shall be valid
and binding unless set forth in writing and duly executed by all
Parties and no waiver of any breach of any term or provision of
this Agreement 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.
9.4. 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.
9.5. The insertion of section headings is for ease of reference only
and shall not affect the interpretation of this Agreement.
9.6. All executed copies of this Agreement constitute originals of one
and the same agreement.
9.7. This Agreement may be executed by the Parties in counterparts at
different times and in different places without the Parties being
in each other's presence.
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9.8. This Agreement will enure to the benefit of and be binding upon
the respective successors and permitted assigns of the Parties.
9.9. 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.
9.10. WS Acquisition may not Transfer any of its Shares to an
Affiliate of WS Acquisition unless said Affiliate first delivers
to the Company and the Caisse a duly authorized and executed
intervention in the form of Schedule A to this Agreement.
9.11. This Agreement shall remain in effect until all Borrowings
have been repaid in full in cash and the Caisse does not hold
any Warrants or any Shares.
IN WITNESS WHEREOF, the parties have signed this agreement on March 14,
2001.
c/o CDP Capital d'Amerique Inc. CAISSE DE DEPOT ET PLACEMENT DU QUEBEC
2001 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇ -------------------------------
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ LLC
Suite 216
New York, New York By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
10020-1579, U.S.A. -------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ THE HOCKEY COMPANY
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇.▇.▇. -------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Chief Operating Officer
Attention: President
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇