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EXHIBIT 2.4
AMENDMENT, TERMINATION AND RELEASE AGREEMENT
THIS AMENDMENT, TERMINATION AND RELEASE AGREEMENT is entered into on
November 25, 1998 by and among ESCALADE, INCORPORATED, an Indiana corporation
("Escalade"), INDIAN INDUSTRIES, INC., an Indiana corporation ("Indian"),
Harvard Sports, Inc., a California corporation ("Harvard", and together with
Indian, collectively, the "Selling Parties"), SPORTCRAFT, LTD., a Delaware
corporation ("Parent") and JEN SPORTS, INC., a Delaware corporation ("Buyer ").
WHEREAS, Escalade, the Selling Parties, Parent and Buyer are the
Parties to that certain Asset Purchase Agreement dated as of June 26, 1996, as
amended on July 2, 1998 (the "Asset Purchase Agreement");
WHEREAS, the parties mutually agree that the sale by Escalade and the
Selling Parties of the assets of Escalade Sports and the related transactions
contemplated by the Asset Purchase Agreement will not be completed on the terms
set forth in the Asset Purchase Agreement;
WHEREAS, the Parties also mutually agree that they have not and will
not be able to agree on revised terms and conditions to the Asset Purchase
Agreement that would allow the sale of the Escalade Sports assets to proceed on
a mutually satisfactory basis; and
WHEREAS, the Parties mutually desire to enter into this Amendment,
Termination and Release Agreement to reflect their agreement on the terms and
conditions upon which the Asset Purchase Agreement is to be terminated;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and in consideration of the representations, warranties and covenants
herein contained, the Parties hereby agree as follows:
1. DEFINITIONS. (A) All capitalized terms used in this Amendment,
Termination and Release Agreement and not otherwise defined herein shall have
the meanings ascribed to such terms in the Asset Purchase Agreement.
(B) The term "Confidentiality Agreements" means those certain letter
agreements with respect to confidentiality (i) dated as of January 20, 1998
between ▇▇▇▇ Capital, Inc. and Escalade's financial advisor, and (ii) dated as
of October 2, 1998 between Sportcraft and Escalade.
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2. AMENDMENT TO SECTION 10.2 OF THE ASSET PURCHASE AGREEMENT. Section
10.2 of the Asset Purchase Agreement is hereby deleted in its entirety and
replaced by the following new Section 10.2:
"10.2 EFFECT OF TERMINATION. Upon termination of this Agreement, all
rights and obligations of the Parties under this Agreement shall
terminate without any Liability of any Party to any other Party (other
than the obligation of the parties to bear their own costs and expenses
pursuant to Section 11.11(a)), and such termination shall relieve each
Party and each of their respective affiliates from any and all
Liability arising from or relating to any Party's breach of this
Agreement or the Confidentiality Agreements at or prior to such
termination, including liability for any claim by Escalade and the
Selling Parties for any consequential, incidental or special damages,
or for damages arising out of the termination of this Agreement, or
relating directly or indirectly to any sale of or the failure to sell
(or any other business combination, recapitalization or similar
fundamental transaction or proposal involving) the Business or the
Acquired Assets or any equity securities of Escalade or any of its
Subsidiaries.
Sportcraft and Buyer agree that each of them, and their
respective affiliates or Representatives (as defined in the
Confidentiality Agreements) shall, after the date of such termination,
be bound by the provisions of the Confidentiality Agreements for the
time period set forth therein, and that the termination of this
Agreement does not relieve any of them from any liability arising from
or relating to any breach of the Confidentiality Agreements after the
date of such termination, or with respect to any claims arising under
the Confidentiality Agreements with respect to lost sales by Escalade
and/or the Selling Parties in 1998 to The Sports Authority, Sears, or
Wal-Mart; PROVIDED, HOWEVER, that any such claims by Escalade and/or
the Selling Parties for lost sales shall not in any way include any
damages directly or indirectly resulting from the termination of this
Agreement, or from the sale of or the failure to sell Escalade, any of
its Subsidiaries, the Business, the Acquired Assets, or any equity
securities of Escalade or any of its Subsidiaries, or from any decline
in the value of Escalade, any of its Subsidiaries, the Business, or the
Acquired Assets relating to such termination, sale or the failure of
such sale.
Escalade and the Selling Parties hereby waive and release any
and all claims that any of them may have with respect to any breach or
alleged breach of the Confidentiality Agreements by Sportcraft, Buyer
or their respective affiliates or Representatives (as defined in the
Confidentiality Agreements) prior to the date of such termination;
PROVIDED, HOWEVER, that such waiver and release shall not be deemed to
relate to any claims arising under the Confidentiality Agreements with
respect to lost sales by Escalade and/or the Selling Parties in 1998 to
The Sports Authority, Sears, or Wal-Mart, or with respect to acts or
omissions occurring after the date of such termination; PROVIDED,
FURTHER, that any such claims by Escalade and/or the Selling Parties
for lost sales shall not in any way include any damages directly
resulting from the termination of
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this Agreement, or from the sale of or the failure to sell Escalade,
any of its Subsidiaries, the Business, the Acquired Assets, or any
equity securities of Escalade or any of its Subsidiaries, or from any
decline in the value of Escalade, any of its Subsidiaries, the
Business, or the Acquired Assets relating to such termination, sale or
the failure of such sale.
Nothing herein is intended or shall be construed to be an
admission of any breach of the Confidentiality Agreements."
3. TERMINATION OF ASSET PURCHASE AGREEMENT. The Asset Purchase
Agreement is hereby terminated by mutual agreement of the Parties pursuant to
Section 10.1(a) thereof.
4. AGREED CONSEQUENCES OF MUTUAL TERMINATION. In addition to the
provisions of Section 10.2 of the Asset Purchase Agreement, as amended by this
Amendment, Termination and Release Agreement ("Amended Section 10.2"), the
Parties agree that by virtue of their mutual agreement to terminate the Asset
Purchase Agreement pursuant to Section 10.1(a):
(A) each Party shall bear its own costs and expenses pursuant to
Section 11.11(a), it being understood and agreed that Escalade will
bear the expense set forth in Section 5.6 of the Asset Purchase
Agreement;
(B) the following provisions of the Asset Purchase Agreement will
not apply: the last sentence of Section 11.9; Sections 11.11 (b)
through (e); Section 11.14; and Section 11.15;
(C) except as permitted by Amended Section 10.2, no Party will make
any claim or bring any legal action of any type in any forum to seek
any remedies (whether set forth in those sections of the Asset
Purchase Agreement referred to in clause (B) above or otherwise)
with respect to the Asset Purchase Agreement, the termination
thereof, the Confidentiality Agreements, any sale of or the failure
to sell the Business or the Acquired Assets or any equity securities
of Escalade or any of its Subsidiaries, or any of the matters raised
in the correspondence that the Parties have heretofore exchanged;
(D) the Parties hereby forever release, acquit and discharge each
other, their respective subsidiaries, officers, agents, employees,
assigns and successors, from any and all past and present, now known
or hereafter discovered, causes of action, demands or liabilities,
both in law and in equity, with respect to any and all matters,
transactions, acts or events resulting from or in any way connected
with or related, directly or indirectly, to the Asset Purchase
Agreement, the termination thereof, the Confidentiality Agreements,
any sale of or the failure to sell the Business or the Acquired
Assets or any equity securities of Escalade or any of its
Subsidiaries, or any of the matters raised in the correspondence
that the Parties
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have heretofore exchanged; PROVIDED, HOWEVER, that such release and
waiver shall not be deemed to relate to such claims arising under
the Confidentiality Agreements as are preserved by the terms of
Amended Section 10.2; and
(E) Sportcraft and Buyer waive and release any and all rights,
powers and interests in the Irrevocable Proxies and such Irrevocable
Proxies are hereby terminated.
5. EFFECTIVE DATE OF TERMINATION. This Amendment, Termination and
Release Agreement takes effect immediately upon the date hereof and the Asset
Purchase Agreement is hereby terminated without additional notice or any further
action by the Parties.
6. COMPROMISE NEGOTIATIONS. Any and all communications between the
Parties during the period from September 10, 1998 through and including the date
of this Amendment, Termination and Release Agreement are hereby deemed to be
"Compromise Negotiations" within the meaning of Rule 408 of the Federal Rules of
Evidence.
7. RETURN OF INFORMATION. In connection with the termination of the
Asset Purchase Agreement and as provided for in the Confidentiality Agreements,
the parties further agree that Escalade has hereby requested that all
Information (as defined in the Confidentiality Agreements) be promptly returned
to Escalade, that no copies be retained by Sportcraft, JEN Sports, ▇▇▇▇ Capital
or any of Sportcraft's Representatives, and that any portion of the Information
that consists of reports, analyses, compilations, studies or information
developed or prepared by or for Sportcraft, JEN Sports, ▇▇▇▇ Capital or
Sportcraft's Representatives that include, incorporate, refer to, reflect or are
based upon (in whole or in part) the Information shall be promptly destroyed.
8. ENTIRE AGREEMENT. This Amendment, Termination and Release Agreement
sets forth the entire understanding between the parties related to the subject
matter hereof and supersedes all prior written or oral agreements or
understandings, other than the Asset Purchase Agreement as amended and modified
by the terms hereof. Each of the Parties is represented by its own counsel and
no Party nor its principals are relying on any statements or promises from any
other Party or its representatives other than those contained in this Amendment,
Termination and Release Agreement.
9. GOVERNING LAW. This Amendment, Termination and Release Agreement
will be governed by and interpreted in accordance with the internal laws of the
State of Delaware without regard to its principles of conflict of laws.
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IN WITNESS WHEREOF, the parties hereto set their hands to this
Amendment, Termination and Release Agreement as of the date set forth above.
ESCALADE, INCORPORATED SPORTCRAFT, LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: V.P. & CFO Title: Sr. V.P - CFO
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INDIAN INDUSTRIES, INC. JEN SPORTS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: SECRETARY Title: Sr. V.P - CFO
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HARVARD SPORTS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: SECRETARY
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