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STOCKHOLDERS AGREEMENT
among
OUTBOARD MARINE CORPORATION
QUANTUM INDUSTRIAL PARTNERS LDC
and
GREENLAKE HOLDINGS II LLC
Dated: January 28, 2000
Table of Contents
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1. Definitions........................................................................ 1
2. Restrictions on Transfer of Shares................................................. 5
2.1 Limitation on Transfer........................................................ 5
2.2 Permitted Transfers........................................................... 5
2.3 Permitted Transfer Procedures................................................. 6
2.4 Transfers in Compliance with Law; Substitution of Transferee.................. 6
3. Right of First Offer and Tag-Along Rights.......................................... 6
3.1 Proposed Voluntary Transfers.................................................. 6
3.2 Involuntary Transfers......................................................... 10
4. Future Issuance of Shares; Preemptive Rights....................................... 12
4.1 Offering Notice............................................................... 12
4.2 Preemptive Rights; Exercise................................................... 13
4.3 Closing....................................................................... 13
4.4 Sale to Subject Purchaser..................................................... 14
5. After-Acquired Securities; Agreement to be Bound................................... 14
5.1 After-Acquired Securities..................................................... 14
5.2 Agreement to be Bound......................................................... 14
6. Miscellaneous...................................................................... 15
6.1 Notices...................................................................... 15
6.2 Successors and Assigns....................................................... 17
6.3 Amendment and Waiver......................................................... 17
6.4 Board Representation......................................................... 17
6.5 Counterparts................................................................. 17
6.6 Specific Performance......................................................... 17
6.7 Headings..................................................................... 18
6.8 GOVERNING LAW................................................................ 18
6.9 Severability................................................................. 18
6.10 Entire Agreement............................................................. 18
6.11 Term of Agreement............................................................ 18
6.12 Further Assurances........................................................... 18
EXHIBITS
A-1 Form of Transfer Agreement (Previously issued shares)
A-2 Form of Transfer Agreement (Newly issued shares)
EXHIBIT 4.10
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (this "Agreement") dated January 28, 2000,
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among Outboard Marine Corporation, a Delaware corporation (the "Company"),
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Quantum Industrial Partners LDC, a Cayman Islands limited duration company
("QIP"), and Greenlake Holdings II LLC, a Delaware limited liability company
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("Greenlake").
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WHEREAS, pursuant to the Series A Convertible Preferred Stock and
Warrant Purchase Agreement, dated the date hereof (the "Stock Purchase
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Agreement"), among the Company, QIP and Greenlake, the Company has agreed to
issue and sell to QIP and Greenlake (a) an aggregate of 650,000 shares of the
Company's Series A Convertible Preferred Stock, par value $.01 per share (the
"Preferred Stock"), and (b) warrants (the "Warrants") to purchase, subject to
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the terms and conditions thereof, 5,750,000 shares of Common Stock; and
WHEREAS, the parties hereto wish to restrict the transfer of the
Shares (as hereinafter defined) and the Warrants and to provide for, among other
things, first offer, tag-along and preemptive rights and certain other rights
under certain conditions.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following terms
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shall have the meanings set forth below:
"Affiliate" shall mean any Person who is an "affiliate" (as
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defined in Rule 12b-2 of the General Rules and Regulations under the Exchange
Act) of, and any Person controlling, controlled by or under common control with,
any Stockholder. For the purposes of this Agreement, "control" includes the
ability to have investment discretion through contractual means or by operation
of law.
"Agreement" means this Agreement as the same may be amended,
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supplemented or modified in accordance with the terms hereof.
"Board of Directors" means the Board of Directors of the Company.
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"Business Day" means any day other than a Saturday, Sunday or
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other day on which commercial banks in the State of New York are authorized or
required by law or executive order to close.
2
"Code" means the Internal Revenue Code of 1986, as amended, or
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any successor statute thereto.
"Commission" means the Securities and Exchange Commission or any
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similar agency then having jurisdiction to enforce the Securities Act.
"Common Stock" means the Common Stock, par value $.01 per share,
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of the Company or any other capital stock of the Company into which such stock
is reclassified or reconstituted and any other common stock of the Company.
"Common Stock Equivalents" means any security or obligation which
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is by its terms convertible into or exercisable for shares of Common Stock,
including, without limitation, the Preferred Stock, and any option, warrant or
other subscription or purchase right with respect to Common Stock.
"Company" has the meaning set forth in the recitals to this
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Agreement.
"Company Option" has the meaning set forth in Section 3.1(b) of
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this Agreement.
"Company Option Period" has the meaning set forth in Section
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3.1(b) of this Agreement.
"Contract Date" has the meaning set forth in Section 3.1(e) of
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this Agreement.
"Excess New Securities" has the meaning set forth in Section
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4.2(a) of this Agreement.
"Excess Offered Securities" has the meaning set forth in Section
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3.1(c) of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
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amended, and the rules and regulations of the Commission thereunder.
"Fair Value" has the meaning set forth in Section 3.2(b) of this
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Agreement.
"Governmental Authority" means the government of any nation,
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state, city, locality or other political subdivision thereof, any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to
3
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Initial Public Offering" means the initial public offering of the
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shares of Common Stock of the Company pursuant to an effective registration
statement filed under the Securities Act.
"Involuntary Transfer" means any transfer, proceeding or action
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by or in which a Stockholder shall be deprived or divested of any right, title
or interest in or to any of the Shares, including, without limitation, (i) any
seizure under levy of attachment or execution, (ii) any transfer in connection
with bankruptcy (whether pursuant to the filing of a voluntary or an involuntary
petition under the United States Bankruptcy Code of 1978, or any modifications
or revisions thereto) or other court proceeding to a debtor in possession,
trustee in bankruptcy or receiver or other officer or agency, (iii) any transfer
to a state or to a public officer or agency pursuant to any statute pertaining
to escheat or abandoned property and (iv) any transfer pursuant to a divorce or
separation agreement or a final decree of a court in a divorce action.
"Involuntary Transferee" has the meaning set forth in Section
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3.2(a) of this Agreement.
"IPO Effectiveness Date" means the date upon which the Company
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closes its Initial Public Offering.
"Liens" means any mortgage, deed of trust, pledge, hypothecation,
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assignment, encumbrance, lien (statutory or other) or preference, priority,
right or other security interest or preferential arrangement of any kind or
nature whatsoever (excluding preferred stock and equity related preferences).
"New Issuance Notice" has the meaning set forth in Section 4.1 of
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this Agreement.
"New Securities" has the meaning set forth in Section 4.1 of this
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Agreement.
"Offer Price" has the meaning set forth in Section 3.1(a) of this
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Agreement.
"Offered Securities" has the meaning set forth in Section 3.1(a)
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of this Agreement.
"Offering Notice" has the meaning set forth in Section 3.1(a) of
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this Agreement.
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"Other Stockholder" means (a) any transferee of a Stockholder
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(other than a Permitted Transferee thereof), who has agreed to be bound by the
terms and conditions of this Agreement in accordance with Section 2.4 or to whom
Shares have been transferred in accordance with Section 3.1(e) and (b) any
Person other than a Stockholder who has agreed to be bound by the terms and
conditions of this Agreement in accordance with Section 5.2(a).
"Permitted Transferee" has the meaning set forth in Section 2.2
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of this Agreement.
"Person" means any individual, firm, corporation, partnership,
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trust, incorporated or unincorporated association, joint venture, joint stock
company, limited liability company, Governmental Authority or other entity of
any kind, and shall include any successor (by merger or otherwise) of such
entity.
"Preemptive Rightholder(s)" has the meaning set forth in Section
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4.1 of this Agreement.
"Preferred Stock" has the meaning set forth in the recitals to
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this Agreement.
"Proportionate Percentage" has the meaning set forth in Section
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4.2(a) of this Agreement.
"Proposed Price" has the meaning set forth in Section 4.1 of this
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Agreement.
"Rightholder(s)" has the respective meanings set forth in
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Sections 3.1(c) and 3.2(a) of this Agreement.
"Rightholder Option Period" has the meaning set forth in Section
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3.1(c) of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended,
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and the rules and regulations of the Commission promulgated thereunder.
"Selling Stockholder" has the meaning set forth in Section 3.1(a)
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of this Agreement.
"Shares" means, with respect to each Stockholder, all shares,
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whether now owned or hereafter acquired, of Common Stock and Preferred Stock,
owned thereby; provided, however, for the purposes of any computation of the
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number
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of Shares pursuant to Sections 2, 3, 4.1, 4.2 and 6.3, all outstanding Common
Stock Equivalents shall be deemed converted, exercised or exchanged as
applicable and the shares of Common Stock issuable upon such conversion,
exercise or exchange shall be deemed outstanding, whether or not such
conversion, exercise or exchange has actually been effected.
"Stock Purchase Agreement" has the meaning set forth in the
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recitals to this Agreement.
"Stockholders" means (a) QIP and Greenlake and any transferee
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thereof who has agreed to be bound by the terms and conditions of this Agreement
in accordance with Section 2.4 and (b) any Person who has agreed to be bound by
the terms and conditions of this Agreement in accordance with Section 5.2(a),
and the term "Stockholder" shall mean any such Person.
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"Subject Purchaser" has the meaning set forth in Section 4.1 of
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this Agreement.
"Tag-Along Rightholder" has the meaning set forth in Section
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3.1(f)(i) of this Agreement.
"Third Party Purchaser" has the meaning set forth in Section
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3.1(a) of this Agreement.
"transfer" has the meaning set forth in Section 2.1 of this
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Agreement.
"Transferred Shares" has the meaning set forth in Section 3.2(a)
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of this Agreement.
"Warrants" has the meaning set forth in the recitals to this
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Agreement.
2. Restrictions on Transfer of Shares.
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2.1 Limitation on Transfer. No Stockholder shall sell, give,
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assign, hypothecate, pledge, encumber, grant a security interest in or otherwise
dispose of (whether by operation of law or otherwise) (each a "transfer") any
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Shares or any right, title or interest therein or thereto (including any Common
Stock Equivalents), except in accordance with the provisions of this Agreement,
including, without limitation, Section 2.4. Any attempt to transfer any Shares
or any rights thereunder or therein in violation of the preceding sentence shall
be null and void ab initio.
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2.2 Permitted Transfers. Notwithstanding anything to the
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contained in this Agreement, but subject to Sections 2.1, 2.3 and 2.4, at any
time, each of the Stockholders may transfer all or a portion of its Shares to
any of its Affiliates (each, a "Permitted Transferee"). A Permitted Transferee
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of Shares pursuant to this Section 2.2 may transfer its Shares pursuant to this
Section 2.2 only to the transferor Stockholder or to a Person that is a
Permitted Transferee of such transferor Stockholder.
2.3 Permitted Transfer Procedures. If any Stockholder wishes to
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transfer Shares to a Permitted Transferee under Section 2.2, such Stockholder
shall give notice to the Company of its intention to make any transfer permitted
under Section 2.2 not less than ten (10) days prior to effecting such transfer,
which notice shall state the name and address of each Permitted Transferee to
whom such transfer is proposed, the relationship of such Permitted Transferee to
such Stockholder, and the number of Shares proposed to be transferred to such
Permitted Transferee.
2.4 Transfers in Compliance with Law; Substitution of
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Transferee. Notwithstanding any other provision of this Agreement, no transfer
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may be made pursuant to this Section 2 or Section 3 unless (a) the transferee
has agreed in writing to be bound by the terms and conditions of this Agreement
pursuant to an instrument substantially in the form attached hereto as Exhibit
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C-1, (b) the transfer complies in all respects with the applicable provisions of
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this Agreement and (c) the transfer complies in all respects with applicable
federal and state securities laws, including, without limitation, the Securities
Act. If requested by the Company, an opinion of counsel to such transferring
Stockholder shall be supplied to the Company at such transferring Stockholder's
expense, to the effect that such transfer complies with the applicable federal
and state securities laws. Upon becoming a party to this Agreement, (i) the
Permitted Transferee of a Stockholder shall be substituted for, and shall enjoy
the same rights and be subject to the same obligations as, a Stockholder
hereunder with respect to the Shares transferred to such Permitted Transferee,
(ii) an Other Stockholder shall be subject to the same obligations as, but none
of the rights of, the transferring Stockholder and (iii) the transferee of an
Other Stockholder shall be substituted for, and shall be subject to the same
obligations as, the transferring Other Stockholder hereunder with respect to the
Shares transferred to such transferee.
3. Right of First Offer and Tag-Along Rights.
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3.1 Proposed Voluntary Transfers.
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(a) Offering Notice. Subject to Section 2, if any
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Stockholder (a "Selling Stockholder") wishes to transfer all or any portion of
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its or his Shares to any Person (other than to a Permitted Transferee) (a "Third
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Party Purchaser"), such Selling Stockholder shall offer such Shares first to the
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Company, by
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sending written notice (an "Offering Notice") to the Company, which shall state
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(a) the number of Shares proposed to be transferred (the "Offered Securities");
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(b) the proposed purchase price per Share for the Offered Securities (the "Offer
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Price"); and (c) the terms and conditions of such sale. Upon delivery of the
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Offering Notice, such offer shall be irrevocable unless and until the rights of
first offer provided for herein shall have been waived or shall have expired.
The Company shall promptly deliver a copy of the Offering Notice to each of the
Stockholders.
(b) Company Option; Exercise. For a period of thirty (30) days
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after the giving of the Offering Notice pursuant to Section 3.1(a) (the "Company
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Option Period"), the Company shall have the right (the "Company Option") but not
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the obligation to purchase any or all of the Offered Securities at a purchase
price equal to the Offer Price and upon the terms and conditions set forth in
the Offering Notice. The right of the Company to purchase any or all of the
Offered Securities under this Section 3.1(b) shall be exercisable by delivering
written notice of the exercise thereof, prior to the expiration of the Company
Option Period, to the Selling Stockholder, with a copy to the Stockholders
(other than the Selling Stockholder), which notice shall state the number of
Offered Securities proposed to be purchased by the Company. The failure of the
Company to respond within the Company Option Period shall be deemed to be a
waiver of the Company Option, provided that the Company may waive its rights
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under this Section 3.1(b) prior to the expiration of the Company Option Period
by giving written notice to the Selling Stockholder, with a copy to the
Stockholders (other than the Selling Stockholder).
(c) Rightholder Option; Exercise.
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(i) If the Company does not elect to purchase all of the
Offered Securities, then for a period of thirty (30) days after the earlier to
occur of (a) the expiration of the Company Option Period and (b) the date upon
which the Selling Stockholder shall have received written notice from the
Company of its exercise of the Company Option pursuant to Section 3.1(b) or its
waiver thereof (the "Rightholder Option Period"), each of the Stockholders
(other than a Selling Stockholder) (for the purpose of Section 3.1, each, a
"Rightholder" and collectively, the "Rightholders") shall have the right to
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purchase all, but not less than all, of the remaining Offered Securities at a
purchase price equal to the Offer Price and upon the terms and conditions set
forth in the Offering Notice. Each such Rightholder shall have the right to
purchase that percentage of the Offered Securities determined by dividing (i)
the total number of Shares then owned by such Rightholder by (ii) the total
number of Shares then owned by all such Rightholders. If any Rightholder does
not fully subscribe for the number or amount of Offered Securities it or he is
entitled to purchase, then each other participating Rightholder shall have the
right to purchase that percentage of the Offered Securities not so subscribed
for (for the purposes of this Section 3.1(c), the "Excess Offered Securities")
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determined by dividing (x) the total
8
number of Shares then owned by such fully participating Rightholder by (y) the
total number of Shares then owned by all fully participating Rightholders who
elected to purchase Offered Securities. The procedure described in the preceding
sentence shall be repeated until there are no remaining Excess Offered
Securities. If the Company and/or the Rightholders do not purchase all of the
Offered Securities pursuant to Section 3.1(b) and/or Section 3.1(c), then the
Selling Stockholder may, subject to Section 3.1(f), sell the Offered Securities
to a Third Party Purchaser in accordance with Section 3.1(e).
(ii) The right of each Rightholder to purchase all of the
remaining Offered Securities under subsection (i) above shall be exercisable by
delivering written notice of the exercise thereof, prior to the expiration of
the Rightholder Option Period, to the Selling Stockholder with a copy to the
Company. Each such notice shall state (a) the number of Shares held by such
Rightholder and (b) the number of Shares that such Rightholder is willing to
purchase pursuant to this Section 3.1(c). The failure of a Rightholder to
respond within the Rightholder Option Period to the Selling Stockholder shall be
deemed to be a waiver of such Rightholder's rights under subsection (i) above,
provided that each Rightholder may waive its rights under subsection (ii) above
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prior to the expiration of the Rightholder Option Period by giving written
notice to the Selling Stockholder, with a copy to the Company.
(d) Closing. The closing of the purchases of Offered Securities
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subscribed for by the Company under Section 3.1(b) and/or the Rightholders under
Section 3.1(c) shall be held at the executive office of the Company at 11:00
a.m., local time, on the 60th day after the giving of the Offering Notice
pursuant to Section 3.1(a) or at such other time and place as the parties to the
transaction may agree. At such closing, the Selling Stockholder shall deliver
certificates representing the Offered Securities, duly endorsed for transfer and
accompanied by all requisite transfer taxes, if any, and such Offered Securities
shall be free and clear of any Liens (other than those arising hereunder and
those attributable to actions by the purchasers thereof) and the Selling
Stockholder shall so represent and warrant, and shall further represent and
warrant that it is the sole beneficial and record owner of such Offered
Securities. The Company and/or each Rightholder, as the case may be, purchasing
Offered Securities shall deliver at the closing payment in full in immediately
available funds for the Offered Securities purchased by it or him. At such
closing, all of the parties to the transaction shall execute such additional
documents as are otherwise necessary or appropriate.
(e) Sale to a Third Party Purchaser. Unless the Company and/or the
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Rightholders elect to purchase all, but not less than all, of the Offered
Securities under Sections 3.1(b) and 3.1(c), the Selling Stockholder may,
subject to Section 3.1(f), sell all, but not less than all, the Offered
Securities to a Third Party Purchaser on the terms and conditions set forth in
the Offering Notice; provided,
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9
however, that such sale is bona fide and made pursuant to a contract entered
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into within sixty (60) days after the earlier to occur of (i) the waiver by the
Company and all of the Rightholders of their options to purchase the Offered
Securities and (ii) the expiration of the Rightholder Option Period (the
"Contract Date"); and provided further, that such sale shall not be consummated
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unless and until (x) such Third Party Purchaser shall represent in writing to
the Company and each Rightholder that it is aware of the rights of the Company,
the Stockholders contained in this Agreement and (y) prior to the purchase by
such Third Party Purchaser of any of such Offered Securities, such Third Party
Purchaser shall become a party to this Agreement as an Other Stockholder and
shall agree to be bound by the terms and conditions hereof in accordance with
Section 2.4 hereof. If such sale is not consummated within 30 days after the
Contract Date for any reason, then the restrictions provided for herein shall
again become effective, and no transfer of such Offered Securities may be made
thereafter by the Selling Stockholder without again offering the same to the
Company and the Rightholders in accordance with this Section 3.1.
(f) Tag-Along Rights.
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(i) If a Stockholder is transferring Offered
Securities to a Third Party Purchaser pursuant to Section 3.1(e), then each of
the Stockholders (other than the Selling Stockholder) (each, a "Tag-Along
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Rightholder") shall have the right to sell to such Third Party Purchaser, upon
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the terms set forth in the Offering Notice, that number of Shares held by such
Tag-Along Rightholder equal to that percentage of the Offered Securities
determined by dividing (A) the total number of Shares then owned by such
Tag-Along Rightholder by (B) the sum of (x) the total number of Shares then
owned by all such Tag-Along Rightholders exercising their rights pursuant to
this Section 3.1(f) and (y) the total number of Shares then owned by the Selling
Stockholder. The Selling Stockholder and the Tag-Along Rightholder(s) exercising
their rights pursuant to this Section 3.1(f) shall effect the sale of the
Offered Securities and such Tag-Along Rightholder(s) shall sell the number of
Offered Securities required to be sold by such Tag-Along Rightholder(s) pursuant
to this Section 3.1(f)(i), and the number of Offered Securities to be sold to
such Third Party Purchaser by the Selling Stockholder shall be reduced
accordingly.
(ii) The Selling Stockholder shall give notice to each
Tag-Along Rightholder of each proposed sale by it of Offered Securities which
gives rise to the rights of the Tag-Along Rightholders set forth in this Section
3.1(f), at least fifteen (15) days prior to the proposed consummation of such
sale, setting forth the name of such Selling Stockholder, the number of Offered
Securities, the name and address of the proposed Third Party Purchaser, the
proposed amount and form of consideration and terms and conditions of payment
offered by such Third Party Purchaser, the percentage of Shares that such Tag-
Along Rightholder may sell to such Third Party Purchaser (determined in
accordance with Section 3.1(f)(i)), and a
10
representation that such Third Party Purchaser has been informed of the "tag-
along" rights provided for in this Section 3.1(f) and has agreed to purchase
Shares in accordance with the terms hereof. The tag-along rights provided by
this Section 3.1(f) must be exercised by any Tag-Along Rightholder wishing to
sell its Shares within ten (10) days following receipt of the notice required by
the preceding sentence, by delivery of a written notice to the Selling
Stockholder indicating such Tag-Along Rightholder's wish to exercise its rights
and specifying the number of Shares (up to the maximum number of Shares owned by
such Tag-Along Rightholder required to be purchased by such Third Party
Purchaser) it wishes to sell, provided that any Tag-Along Rightholder may waive
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its rights under this Section 3.1(f) prior to the expiration of such 10-day
period by giving written notice to the Selling Stockholder, with a copy to the
Company. The failure of a Tag-Along Rightholder to respond within such 10-day
period shall be deemed to be a waiver of such Tag-Along Rightholder's rights
under this Section 3.1(f). If a Third Party Purchaser fails to purchase Shares
from any Tag-Along Rightholder that has properly exercised its tag-along rights
pursuant to this Section 3.1(f)(ii), then the Selling Stockholder shall not be
permitted to consummate the proposed sale of the Offered Securities, and any
such attempted sale shall be null and void ab initio.
3.2 Involuntary Transfers.
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(a) Rights of First Offer upon Involuntary Transfer. If an
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Involuntary Transfer of any Shares (the "Transferred Shares") owned by any
------------------
Stockholder shall occur, then the Company and the Stockholders (unless such
Stockholder is the Stockholder transferring the Transferred Shares) (for the
purpose of Section 3.2, each, a "Rightholder" and collectively, the
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"Rightholders") shall have the same rights as specified in Sections 3.1(b) and
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3.1(c), respectively, with respect to such Transferred Shares as if the
Involuntary Transfer had been a proposed voluntary transfer by a Selling
Stockholder and shall be governed by Section 3.1 except that (i) the time
periods shall run from the date of receipt by the Company of actual notice of
the Involuntary Transfer (and the Company shall immediately give notice to the
Rightholders of the date of receipt of such notice), (ii) such rights shall be
exercised by notice to the transferee of such Transferred Shares (the
"Involuntary Transferee") rather than to the Stockholder who suffered or will
----------------------
suffer the Involuntary Transfer and (iii) the purchase price per Transferred
Share shall be agreed upon by the Involuntary Transferee and the Company and/or
the purchasing Rightholders purchasing a majority of the Transferred Shares, as
the case may be; provided, however, that if such parties fail to agree as to
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such purchase price, the purchase price shall be the Fair Value thereof as
determined in accordance with Section 3.2(b). Notwithstanding anything to the
contrary set forth in this Agreement, an Involuntary Transferee that has not
agreed to be bound to the terms and conditions hereunder, in accordance with
Section 5.2(a) hereof, shall not be deemed to have any rights of a Stockholder
under this Agreement.
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(b) Fair Value. If the parties fail to agree upon the
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purchase price of the Transferred Shares in accordance with Section 3.2(a)
hereof, then the Company or the Rightholders, as the case may be, shall purchase
the Transferred Shares at a purchase price equal to the Fair Value (as
hereinafter defined) thereof. The Fair Value of the Transferred Shares shall be
determined by a panel of three independent appraisers, which shall be nationally
recognized investment banking firms or nationally recognized experts experienced
in the valuation of corporations engaged in the business conducted by the
Company. Within five (5) Business Days after the date the applicable parties
determine that they cannot agree as to the purchase price, the Involuntary
Transferee and the Board of Directors (in the case of a purchase by the
Company), or the purchasing Rightholders purchasing a majority of the
Transferred Shares being purchased by the purchasing Rightholders (if the
Company is not purchasing any Transferred Shares), or the Board of Directors and
such purchasing Rightholders jointly (in the case of a purchase by the Company
and Rightholders), as the case may be, shall each designate one such appraiser
that is willing and able to conduct such determination. If either the
Involuntary Transferee or the Board of Directors or the purchasing Rightholders
or both, as the case may be, fails to make such designation within such period,
then the other party that has made the designation shall have the right to make
the designation on its behalf. The two appraisers designated shall, within a
period of five (5) Business Days after the designation of the second appraiser,
designate a mutually acceptable third appraiser. The three appraisers shall
conduct their determination as promptly as practicable, and the Fair Value of
the Transferred Shares shall be the average of the determination of the two
appraisers that are closer to each other than to the determination of the third
appraiser, which third determination shall be discarded; provided, however, that
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if the determination of two appraisers are equally close to the determination of
the third appraiser, then the Fair Value of the Transferred Shares shall be the
average of the determination of all three appraisers. Such determination shall
be final and binding on the Involuntary Transferee, the Company and the
Rightholders. The Involuntary Transferee shall be responsible for the fees and
expenses of the appraiser designated by or on behalf of it, and the Company or
the purchasing Rightholders (if both the Company and the Purchasing
Rightholders), or the Purchasing Rightholders (if the Company is not purchasing
any Transferred Shares) for the fees and expenses of the appraiser designated by
or on behalf of the Board of Directors or the purchasing Rightholders (if the
Company is not purchasing any Transferred Shares), as the case may be. The
Involuntary Transferee and the Company or the purchasing Rightholders, as the
case may be, shall each share half the fees and expenses of the appraiser
designated by the appraisers. For purposes of this Section 3.2(b), the "Fair
----
Value" of the Transferred Shares means the fair market value of such Transferred
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Shares determined in accordance with this Section 3.2(b) based upon all
considerations that the appraisers determine to be relevant. All expenses to be
shared by the Company and the purchasing Rightholders, or among the purchasing
Rightholders (if the Company is not
12
purchasing any Transferred Shares), shall be shared in proportion to the number
of Shares purchased.
(c) Closing. The closing of any purchase under this
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Section 3.2 shall be held at the executive office of the Company at 11:00 a.m.,
local time, on the earlier to occur of (a) the fifth Business Day after the
purchase price per Transferred Share shall have been agreed upon by the
Involuntary Transferee and the Company or the purchasing Rightholders, as the
case may be, in accordance with Section 3.2(a)(iii), or (b) the fifth Business
Day after the determination of the Fair Value of the Transferred Shares in
accordance with Section 3.2(b), or at such other time and place as the parties
to the transaction may agree. At such closing, the Involuntary Transferee shall
deliver certificates, if applicable, or other instruments or documents
representing the Transferred Shares being purchased under this Section 3.2, duly
endorsed with a signature guarantee for transfer and accompanied by all
requisite transfer taxes, if any, and such Transferred Shares shall be free and
clear of any Liens (other than those arising hereunder) arising through the
action or inaction of the Involuntary Transferee and the Involuntary Transferee
shall so represent and warrant, and further represent and warrant that it is the
beneficial owner of such Transferred Shares. The Company or each Rightholder, as
the case may be, purchasing such Transferred Shares shall deliver at closing
payment in full in immediately available funds for such Transferred Shares. At
such closing, all parties to the transaction shall execute such additional
documents as are otherwise necessary or appropriate.
(d) General. In the event that the provisions of this
-------
Section 3.2 shall be held to be unenforceable with respect to any particular
Involuntary Transfer, the Company and the Rightholders shall have the rights
specified in Sections 3.1(b) and 3.1(c), respectively, with respect to any
transfer by an Involuntary Transferee of such Shares, and each Rightholder
agrees that any Involuntary Transfer shall be subject to such rights, in which
case the Involuntary Transferee shall be deemed to be the Selling Stockholder
for purposes of Section 3.1 of this Agreement and shall be bound by the
provisions of Section 3.1 and other related provisions of this Agreement.
4. Future Issuance of Shares; Preemptive Rights.
--------------------------------------------
4.1 Offering Notice. Except for (a) capital stock of the Company
---------------
that may be issued to employees, consultants, officers or directors of the
Company pursuant to a stock incentive plan or other employee benefit arrangement
approved by the Board of Directors, (b) a subdivision of the outstanding shares
of Common Stock into a larger number of shares of Common Stock, (c) capital
stock issued upon exercise, conversion or exchange of any Common Stock
Equivalent and (d) capital stock of the Company issued in consideration of an
acquisition, approved by
13
the Board of Directors, by the Company of another Person, if the Company wishes
to issue any capital stock or any other securities convertible into or
exchangeable for capital stock of the Company (collectively, "New Securities" to
--------------
any Person (the "Subject Purchaser"), then the Company shall offer such New
-----------------
Securities first to each of the Stockholders (each, a "Preemptive Rightholder"
----------------------
and collectively, the "Preemptive Rightholders") by sending written notice (the
-----------------------
"New Issuance Notice") to the Preemptive Rightholders, which New Issuance Notice
-------------------
shall state (x) the number of New Securities proposed to be issued and (y) the
proposed purchase price per security of the New Securities (the "Proposed
--------
Price"). Upon delivery of the New Issuance Notice, such offer shall be
- -----
irrevocable unless and until the rights provided for in Section 4.2 shall have
been waived or shall have expired.
4.2 Preemptive Rights; Exercise.
---------------------------
(a) For a period of twenty (20) days after the giving of
the New Issuance Notice pursuant to Section 4.1, each of the Preemptive
Rightholders shall have the right to purchase its Proportionate Percentage (as
hereinafter defined) of the New Securities at a purchase price equal to the
Proposed Price and upon the terms and conditions set forth in the New Issuance
Notice. Each such Preemptive Rightholder shall have the right to purchase that
percentage of the New Securities determined by dividing (x) the total number of
Shares then owned by such Preemptive Rightholder exercising its rights under
this Section 4.2 by (y) the total number of Shares (the "Proportionate
-------------
Percentage"). If any Preemptive Rightholder does not fully subscribe for the
- ----------
number or amount of New Securities that it or he is entitled to purchase
pursuant to the preceding sentence, then each Preemptive Rightholder which
elected to purchase New Securities shall have the right to purchase that
percentage of the remaining New Securities not so subscribed for (for the
purposes of this Section 4.2(a), the "Excess New Securities") determined by
---------------------
dividing (x) the total number of Shares then owned by such fully participating
Preemptive Rightholder by (y) the total number of Shares then owned by all fully
participating Preemptive Rightholders who elected to purchase Excess New
Securities.
(b) The right of each Preemptive Rightholder to purchase the New
Securities under subsection (a) above shall be exercisable by delivering written
notice of the exercise thereof, prior to the expiration of the 20-day period
referred to in subsection (a) above, to the Company, which notice shall state
the amount of New Securities that such Preemptive Rightholder elects to purchase
pursuant to Section 4.2(a). The failure of a Preemptive Rightholder to respond
within such 20-day period shall be deemed to be a waiver of such Preemptive
Rightholder's rights under Section 4.2(a), provided that each Preemptive
--------
Rightholder may waive its rights under Section 4.2(a) prior to the expiration of
such 20-day period by giving written notice to the Company.
14
4.3 Closing. The closing of the purchase of New Securities
-------
subscribed for by the Preemptive Rightholders under Section 4.2 shall be held at
the executive office of the Company at 11:00 a.m., local time, on (a) the 45th
day after the giving of the New Issuance Notice pursuant to Section 4.1, if the
Preemptive Rightholders elect to purchase all of the New Securities under
Section 4.2, (b) the date of the closing of the sale to the Subject Purchaser
made pursuant to Section 4.4 if the Preemptive Rightholders elect to purchase
some, but not all, of the New Securities under Section 4.2 or (c) at such other
time and place as the parties to the transaction may agree. At such closing,
the Company shall deliver certificates representing the New Securities, and such
New Securities shall be issued free and clear of all Liens (other than those
arising hereunder and those attributable to actions by the purchasers thereof)
and the Company shall so represent and warrant, and further represent and
warrant that such New Securities shall be, upon issuance thereof to the
Preemptive Rightholders and after payment therefor, duly authorized, validly
issued, fully paid and non-assessable. Each Preemptive Rightholder purchasing
the New Securities shall deliver at the closing payment in full in immediately
available funds for the New Securities purchased by him or it. At such closing,
all of the parties to the transaction shall execute such additional documents as
are otherwise necessary or appropriate.
4.4 Sale to Subject Purchaser. The Company may sell to the
-------------------------
Subject Purchaser all of the New Securities not purchased by the Preemptive
Rightholders pursuant to Section 4.2 on terms and conditions that are no more
favorable to the Subject Purchaser than those set forth in the New Issuance
Notice; provided, however, that such sale is bona fide and made pursuant to a
-------- -------
contract entered into within ninety (90) days following the earlier to occur of
(i) the waiver by the Preemptive Rightholders of their option to purchase New
Securities pursuant to Section 4.2, and (ii) the expiration of the 20-day period
referred to in Section 4.2. If such sale is not consummated within such 90-day
period for any reason, then the restrictions provided for herein shall again
become effective, and no issuance and sale of New Securities may be made
thereafter by the Company without again offering the same in accordance with
this Section 4. The closing of any issuance and purchase pursuant to this
Section 4.4 shall be held at a time and place as the parties to the transaction
may agree.
5. After-Acquired Securities; Agreement to be Bound.
------------------------------------------------
5.1 After-Acquired Securities. All of the provisions of this
-------------------------
Agreement shall apply to all of the Shares and Common Stock Equivalents issued
pursuant to the Stock Purchase Agreement.
5.2 Agreement to be Bound. The Company shall not issue any shares
---------------------
of capital stock or any Common Stock Equivalents to any Person not a party to
this Agreement, other than to directors, officers, employees or consultants of
the
15
Company (or their heirs or beneficiaries) pursuant to a stock incentive plan or
other employee benefit arrangement approved by the Board of Directors, unless
either (a) such Person has agreed in writing to be bound by the terms and
conditions of this Agreement pursuant to an instrument substantially in the
form attached hereto as Exhibit C-2, or (b) such Person has entered into an
-----------
agreement with the Company restricting the transfer of its or his Shares in form
and substance reasonably satisfactory to QIP, as representative of the
Stockholders (or such other representative as shall be designated by QIP or by
the holder(s) of a majority of the Shares held by the Stockholders). Upon
becoming a party to this Agreement, such Person shall be deemed to be, and shall
be subject to the same obligations as, an Other Stockholder hereunder. Any
issuance of Shares or any Common Stock Equivalents by the Company in violation
of this Section 5.2 shall be null and void ab initio.
6. Miscellaneous.
-------------
6.1 Notices. All notices, demands or other communications
-------
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first class mail, return receipt requested, telecopier,
courier service, overnight mail or personal delivery:
(a) if to the Company to the attention of each of its
Treasurer and General Counsel at:
Outboard Marine Corporation
100 Sea-Horse Drive
Waukegan, IL 60085
Telecopy: (847) 689-6246
with a copy to:
David, Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Telecopy: (212) 450-4800
Attention: Julia K. Cowles, Esq.
(b) if to QIP:
Quantum Industrial Partners LDC
Kaya Flamboyan 9,
Villemstad
Curacao
Netherlands-Antilles
16
with a copy to:
Soros Fund Management LLC
888 Seventh Avenue
New York, NY 10016
Telecopy: (212) 664-0544
Attention: Michael Neus, Esq.
and a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Telecopy: (212) 757-3990
Attention: Richard S. Borisoff, Esq.
(c) If to Greenlake:
Greenlake Holdings II LLC
c/o Greenway Partners, L.P.
277 Park Avenue
New York, NY 10016
Telecopy: (212) 350-5253
Attention: Gary Duberstein
with a copy to:
Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153
Telecopy: (212) 310-8007
Attention: David Blittner, Esq.
(d) if to any other Stockholder, at its address as it
appears on the record books of the Company.
Any party may by notice given in accordance with this Section 6.1 designate
another address or Person for receipt of notices hereunder. All such notices,
demands and other communications shall be deemed to have been duly given when
delivered by hand, if personally delivered; when delivered by courier, if
delivered by commercial courier service; five (5) Business Days after being
deposited in the mail, postage prepaid, if mailed; and when receipt is
mechanically acknowledged, if telecopied.
17
6.2 Successors and Assigns. This Agreement shall be binding
----------------------
upon and inure to the benefit of the parties and their respective successors,
heirs, legatees and legal representatives. This Agreement is not assignable
except in connection with a transfer of Shares in accordance with this
Agreement.
6.3 Amendment and Waiver.
--------------------
(a) Except as specifically set forth in this Agreement, no
failure or delay on the part of any party hereto in exercising any right, power
or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the parties hereto at law, in equity or
otherwise.
(b) Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision of this Agreement, and
any consent to any departure by any party from the terms of any provision of
this Agreement, shall be effective only if it is made or given in writing and
signed by (i) the Company and the Stockholders holding 75% of the voting power
of the Shares held by Stockholders. Any such amendment, supplement,
modification, waiver or consent shall be binding upon the Company and all of the
Stockholders.
6.4 Board Representation. For so long as QIP and Greenlake or
--------------------
Affiliates thereof collectively own at least 50% of the outstanding shares of
Preferred Stock, the Company's Board of Directors shall be expanded to add one
additional director (the "Additional Director") who shall be selected by the
-------------------
holders of a majority of the outstanding shares of Preferred Stock. The Company
will use its best efforts to cause the Additional Director to be nominated and
to solicit proxies for his or her election.
6.5 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument.
6.6 Specific Performance. The parties hereto intend that each
--------------------
of the parties have the right to seek damages or specific performance in the
event that any other party hereto fails to perform such party's obligations
hereunder. Therefore, if any party shall institute any action or proceeding to
enforce the provisions hereof, any party against whom such action or proceeding
is brought hereby waives any claim or defense therein that the plaintiff party
has an adequate remedy at law.
18
6.7 Headings. The headings in this Agreement are for
--------
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
6.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW OF ANY JURISDICTION.
6.9 Severability. If any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof.
6.10 Entire Agreement. This Agreement, together with the
----------------
exhibits hereto, is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein or therein. This
Agreement, together with the exhibits hereto, supersede all prior agreements and
understandings among the parties with respect to such subject matter.
6.11 Term of Agreement. This Agreement shall become effective
-----------------
upon the execution hereof and shall terminate upon the earlier of (a) the IPO
Effectiveness Date or (b) the date on which less than two Stockholders own any
Shares.
6.12 Further Assurances. Each of the parties shall, and shall
------------------
cause their respective Affiliates to, execute such instruments and take such
action as may be reasonably required or desirable to carry out the provisions
hereof and the transactions contemplated hereby.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have executed, or have caused to
be executed, this Stockholders Agreement on the date first written above.
OUTBOARD MARINE CORPORATION
By: /s/ Eric T. Martinez
------------------------------------
Name: Eric T. Martinez
Title: Vice President and Treasurer
QUANTUM INDUSTRIAL PARTNERS LDC
By: /s/ Micheal C. Neus
------------------------------------
Name: Micheal C. Neus
Title: Attorney-In-Fact
GREENLAKE HOLDINGS II LLC
By: /s/ Gary K. Dubertein
------------------------------------
Name: Gary K. Duberstein
Title: Vice President
Exhibit A-1
-----------
ACKNOWLEDGMENT AND AGREEMENT
The undersigned wishes to receive from __________ ("Transferor")
----------
certain shares or certain options, warrants or other rights to purchase _____
shares, par value $.01 per share, of Common Stock (the "Shares") of Outboard
------
Marine Corporation, a Delaware corporation (the "Company");
-------
The Shares are subject to the Stockholders Agreement, dated January
___, 2000 (the "Agreement"), among the Company and the other parties listed on
---------
the signature pages thereto;
The undersigned has been given a copy of the Agreement and afforded
ample opportunity to read and to have counsel review it, and the undersigned is
thoroughly familiar with its terms;
Pursuant to the terms of the Agreement, the Transferor is prohibited
from transferring such Shares and the Company is prohibited from registering the
transfer of the Shares unless and until a transfer is made in accordance with
the terms and conditions of the Agreement and the recipient of such Shares
acknowledges the terms and conditions of the Agreement and agrees to be bound
thereby; and
The undersigned wishes to receive such Shares and have the Company
register the transfer of such Shares.
In consideration of the mutual promises contained herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and to induce the Transferor to transfer such Shares to the
undersigned and the Company to register such transfer, the undersigned does
hereby acknowledge and agree that (i) he[/she] has been given a copy of the
Agreement and afforded ample opportunity to read and to have counsel review it,
and the undersigned is thoroughly familiar with its terms, (ii) the Shares are
subject to the terms and conditions set forth in the Agreement, and (iii) the
undersigned does hereby agree fully to be bound thereby as a ["Stockholder"] [an
-----------
"Other Stockholder"] (as therein defined).
-----------------
This ________ day of ________, 20__.
____________________________________
Exhibit A-2
-----------
ACKNOWLEDGMENT AND AGREEMENT
The undersigned wishes to receive from Outboard Marine Corporation, a
Delaware corporation (the "Company"), _______ shares, par value $.01 per share,
-------
of Common Stock, or certain newly issued options, warrants or other rights to
purchase _______ shares of Common Stock (the "Shares"), of the Company;
------
The Shares are subject to the Stockholders Agreement, dated January
__, 2000 (the "Agreement"), among the Company and the other parties listed on
---------
the signature pages thereto;
The undersigned has been given a copy of the Agreement and afforded
ample opportunity to read and to have counsel review it, and the undersigned is
thoroughly familiar with its terms;
Pursuant to the terms of the Agreement, the Company is prohibited from
issuing the Shares unless and until a transfer is made in accordance with the
terms and conditions of the Agreement and the recipient of such Shares
acknowledges the terms and conditions of the Agreement and agrees to be bound
thereby; and
The undersigned wishes to receive such Shares.
In consideration of the mutual promises contained herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and to induce the Company to issue such Shares, the undersigned
does hereby acknowledge and agree that (i) he[/she] has been given a copy of the
Agreement and afforded ample opportunity to read and to have counsel review it,
and the undersigned is thoroughly familiar with its terms, (ii) the Shares are
subject to terms and conditions set forth in the Agreement, and (iii) the
undersigned does hereby agree fully to be bound thereby as an "Other
Stockholder" (as therein defined).
This ________ day of ________, 20__.
__________________________________