Exhibit 10.1
(This Exhibit 10.1 has been translated into English from the French original)
ACQUISITION AGREEMENT
BETWEEN THE UNDERSIGNED:
MR. LAURENT BOIX-VIVES, born on August 30, 1926 in Brides les Bains (73570),
residing at 1, Boulevard du Marechal Joffre, 38000 Grenoble, France,
MS. JEANNINE BOIX-VIVES, born on December 25, 1927 in Montbonnot (38330),
residing at 1, Boulevard du Marechal Joffre, 38000 Grenoble, France,
MS. CHRISTINE SIMON, born on January 23, 1964 in Grenoble, residing at 1,
Boulevard du Marechal Joffre, 38000 Grenoble, France,
MS. SYLVIE BERNARD, born on January 23, 1964 in Grenoble, residing at 1,
Boulevard du Marechal Joffre, 38000 Grenoble, France,
SDI SOCIETE DE SERVICE ET DEVELOPPEMENT, a Swiss societe anonyme (corporation)
with share capital of CHF 500,000, with registered offices at 120 chemin de la
Rueyre, 1020, Renens, Switzerland ("SDI"), represented by Mr. Laurent
Boix-Vives, acting as President (Chairman and CEO),
acting jointly and severally for the purposes of this Agreement,
(hereinafter referred to as
the "SELLERS" and individually as a "SELLER")
PARTY OF THE FIRST
PART,
AND
QUIKSILVER, INC., a Delaware corporation, with its registered offices at 15202
Graham Street Huntington Beach, California, United States of America,
represented by Mr. Bernard Mariette, acting in the capacity of President,
(hereinafter referred to
as "QUIKSILVER" or the "PURCHASER")
PARTY OF THE SECOND
PART,
(each of the Sellers and the Purchaser shall be referred to individually as a
"PARTY" and collectively as the "PARTIES").
WHEREAS:
A. The Sellers together hold, either directly or through Ski Expansion SCA, a
societe en commandite par actions (partnership limited by shares) with
share capital of EUR 8,096,624, having its registered office at the place
called "Le Menon", Voiron (38500), France, registered with the Registry of
Commerce and Companies of Grenoble under number 070 501 374 (the
"COMPANY"), 5,534,937 shares in Skis Rossignol SA, a societe anonyme
(corporation) with share capital of EUR 49,792,256, with registered offices
located at the place called "Le Menon", Voiron (38500), France, registered
with the Registry of Commerce and Companies of Grenoble under number 056
502 958 and the shares of which are listed on Eurolist of Euronext Paris
under Euroclear France code 12041 ("SKIS ROSSIGNOL"), representing 44.46%
of the capital and 58.67% of the voting rights of Skis Rossignol.
B. The Purchaser has expressed an interest in acquiring control of the group
comprising Skis Rossignol and its Subsidiaries, with a view to further
transfer its direct and indirect holdings in Skis Rossignol to a French
vehicle.
C. The Parties therefore drafted this Agreement for the purpose of setting out
the terms and conditions of this acquisition.
NOW THEREFORE, THE PARTIES HAVE AGREED AS FOLLOWS:
ARTICLE 1 - DEFINITIONS
"ACQUISITION" means the acquisition by the Purchaser, directly or indirectly, of
all of the shares of Skis Rossignol and of its Subsidiaries held directly or
indirectly by the Sellers (including (i) the acquisition of the shares of the
Company, to be held by the Sellers following the capital increase provided for
in Article 2.8, in accordance with this Agreement, and (ii) where applicable,
the acquisition of the shares of the Company and the shares of Roger Cleveland
US which are the subject of the put and call options provided for in the RC
Shareholders' Agreement and the SCA Shareholders' Agreement).
"ADDITIONAL COMPANY SHARES" has the meaning given to it under Article 2.8(d).
"ADDITIONAL TRANSFERRED SHARES" has the meaning given to it under Article 2.9.
"AGREEMENT" means this agreement and its exhibits and schedules, including the
Ancillary Agreements.
"ANCILLARY AGREEMENTS" means, collectively, the Escrow Agreement, the Pilot
Expansion Deed of Purchase, the Unlimited Partners Withdrawal Agreement, the
Purchase Agreement for the Remaining Skis Rossignol Shares, the Minority
Holdings Purchase Agreement, the RC Shareholders' Agreement, the SCA
Shareholders' Agreement, and the contract for the provision of services dated as
of the First Closing Date, by and between Quiksilver and Mr. Laurent Boix-Vives.
"ANTITRUST REGULATIONS" means all antitrust laws and regulations, applicable in
France and abroad, with the purpose of or the effect of regulating the mergers
of companies or in more general terms free competition, including Articles L.
430-1 and following of the French Commercial Code and Decree n(degree) 2002-689
of April 30, 2002, Council Regulation n(degree) 4064/89 of December 21, 1989
relating to the control of mergers between companies, as modified, as well as
the Hart-Scott-Rodino Antitrust Improvements Act of 1976 of the United States of
America, as amended.
"BUSINESS DAY" means, with respect to France or the United States, any day other
than a Saturday, a Sunday or a day on which commercial banks or regulated
markets are closed for business during the entire day in Paris or New York,
respectively, it being specified that references herein to a "Business Day"
without reference to France or the United States shall be references to days
which are both French Business Days and US Business Days.
"CAPITAL INCREASE" has the meaning given to it under Article 2.8.
"CASH TENDER OFFER" has the meaning given to it under Article 2.2(a).
"COMPANY" has the meaning given to it in the Preamble of this Agreement.
"COMPANY NET ASSETS" means the difference (positive or negative) between (i) all
of the assets and any cash and short term securities (disponibilites et valeurs
mobilieres de placement) of the Company and SDIF, on a consolidated basis,
including notes due but not paid (effets echus remis a l'encaissement) but
excluding notes for payment and notes for discounting (effets non-echus a
l'encaissement et effets a l'escompte) and any cash deposited by way of security
and, (ii) the amount of all debt and liabilities of the Company (whether on or
off-balance sheet), including bank borrowings and liabilities underwritten or
guaranteed by the Company or SDIF, including bank overdraft and accrued
interest, convertible bonds, debenture bonds, other borrowings and financial
liabilities (including net shareholder debt and net intra-group debt),
agreements for the deferred payment of goods or services, tax debt, payables to
fixed assets suppliers and related accounts (dettes sur immobilisations et
comptes rattaches), obligations the performance of which is guaranteed by a
surety or pledge, capitalized leases (credit-baux), and provisions for financial
risks and costs of the Company and of SDIF, on a consolidated basis.
"CONTROLLING INTEREST" has the meaning given to it under Article 2.3.
"CONTROLLING INTEREST PURCHASE PRICE ADJUSTMENT" has the meaning given to it
under Article 3.1(e)(ii).
"DATE OF THE TRANSFER OF THE REMAINING SKIS ROSSIGNOL SHARES" means either (i)
the Second Closing Date, or (ii) in the event that the Purchaser wishes to
implement the provision of Article 232-4 of the General Regulation of the French
Autorite des marches financiers with respect to the reopening of a public offer,
any other French Business Day notified by the Purchaser to the Sellers with no
less than twenty-four (24) hour prior notice, comprised between the date of the
first publication by Euronext Paris of the interim result of the Cash Tender
Offer and the Second Closing Date.
"DISPUTED PROVISIONS" has the meaning given to it under Article 8.6.
"ESCROW AGENT" means Societe Generale, a bank with registered office at 29,
boulevard Haussmann, 75009 Paris.
"ESCROW AGREEMENT" means the escrow agreement set forth in Exhibit 2.3(b).
"ESTIMATED NET ASSETS" has the meaning given to it under Article 3.1(e).
"ESTIMATED PRICE OF THE CONTROLLING INTEREST" has the meaning given to it under
Article 3.1(b).
"EURIBOR" means the rate equal to the interbank interest rate applicable to
three (3) month deposits in euros, as calculated by the Banking Federation of
the European Union and published for information purposes on the Euribor Page of
the Moneyline Telerate 248 screen (or any other page that is substituted
therefor, or in the lack thereof, on the equivalent pages of Reuters or
Bloomberg).
"EXPERT" has the meaning given to it under Article 3.1(e).
"FIRST CLOSING DATE" has the meaning given to it under Article 2.1 of this
Agreement.
"INDEPENDENT EXPERT" means Detroyat et Associes, represented by Ms. Marie-Ange
Farthouat.
"INTERIM PERIOD" has the meaning given to it under Article 5.1(a) of this
Agreement.
"KNOWLEDGE OF THE SELLERS" means, with respect to any fact or event, the
knowledge of such fact or event by any of the Sellers.
"MINORITY HOLDINGS" means, collectively, (i) 1,231 shares in Skis Dynastar SA,
representing 0.75% of the capital and the voting rights in that company, (ii)
200 shares in Skis Rossignol de Espana SA, representing 3.33% of the capital and
the voting rights in that company, (iii) 1 share in Rossignol Ski Osterreich,
representing 0.25% of the capital and the voting rights in that company, (iv)
96,687 shares in Rossignol Lange SpA, representing 0.55 % of the capital and the
voting rights in that company, (v) 5 shares in Rossignol Ski Poles Vallee
d'Aoste representing 0.01% of the capital and the voting rights in that company,
(vi) 1 share in Rossignol Ski AG, representing 0.02% of the capital and voting
rights and (vii) 1 share in Look Fixations SA, representing 0.0001% of the
capital and the voting rights in that company, in each case held by the Sellers
at the First Closing Date.
"MINORITY HOLDINGS PURCHASE AGREEMENT" means the agreement set forth in Exhibit
2.5.
"MINORITY SHAREHOLDERS" has the meaning given to it under Article 5.2(b).
"NET ASSETS INCREASE" has the meaning given to it under Article 3.1(e)(ii).
"OPACO" has the meaning given to it under Article 2.2(a).
"PILOT EXPANSION" means Pilot Expansion, a societe a responsabilite limitee
(limited liability company) with capital of EUR 16,000, with registered offices
at the place called "Le Menon", Voiron (38500), France, registered with the
Registry of Commerce and Companies of Grenoble under number 431 779 156.
"PILOT EXPANSION DEED OF PURCHASE" means the agreement set forth under Exhibit
8.8.
"PREAMBLE" means (i) the introductory paragraphs A, B and C of this Agreement
and (ii) the designation of the Parties set forth at the top of this Agreement.
"PRE-SIGNING TRANSACTIONS" means the increase in the capital of the Company
performed immediately before the completion of the sale of the Pilot Expansion
Shares pursuant to Article 2.1, by means of a contribution in kind (apport en
nature) by the Sellers in favor of the Company of 1,247,320 shares in Skis
Rossignol, as a result of which the Company's direct and indirect equity
ownership in Skis Rossignol was increased, as of the First Closing Date, from
3,537,659 shares to 4,784,979 shares, representing 38.43% of the capital and
49.84% of the voting rights of Skis Rossignol (based on a number of voting
rights not including additional voting rights resulting from the exercise of
Skis Rossignol stock options since March 29, 2005); as well as the issuance to
the benefit of the Sellers, in consideration for this contribution, of 130,789
newly issued ordinary shares of common stock of the Company, provided that
144,050 ordinary shares of the Company shall have been converted into preferred
shares beforehand.
"PURCHASE AGREEMENT FOR THE REMAINING SKIS ROSSIGNOL SHARES " means the
agreement set forth in EXHIBIT 2.6.
"PURCHASE PRICE OF THE ADDITIONAL TRANSFERRED SHARES" has the meaning given to
it under Article 3.1(c).
"PURCHASE PRICE OF THE CONTROLLING INTEREST" has the meaning given to it under
Article 3.1(b).
"PURCHASE PRICE OF THE PILOT EXPANSION SHARES" has the meaning given to it under
Article 3.1(a).
"RC SHAREHOLDERS' AGREEMENT" means the shareholders' agreement set forth in
Exhibit 2.7.
"REMAINING SKIS ROSSIGNOL SHARES" means seven hundred and forty nine thousand
nine hundred and fifty eight (749,958) shares in Skis Rossignol which remain
held by the Sellers following completion of the Pre-Signing Transactions and
representing 6.02% of the capital and 8.83% of the voting rights in Skis
Rossignol.
"ROGER CLEVELAND US" means Roger Cleveland Golf Company, Inc., a company
governed by the laws of the State of California, United States of America.
"ROSSIGNOL SKI COMPANY, INC." means Rossignol Ski Company, Inc., a company
governed by the laws of the State of Delaware, United States of America.
"SCA SHAREHOLDERS' AGREEMENT" means the shareholders' agreement set forth in
Exhibit 2.4.
"SDIF" means Societe de Developpement Industriel et Financier, a limited
liability company with capital of EUR 762,245.09, with its registered office at
the place called "Le Menon", Voiron (38500), France, registered with the
Registry of Commerce and Companies of Grenoble under number 411 001 209.
"SECOND CLOSING DATE" means either (i) the Settlement-Delivery Date, or (ii) if
the Settlement-Delivery Date has not occurred before July 19, 2005, July 19,
2005 (provided that in the event that the authorizations necessary for the
Purchase under the Antitrust Regulations have not been obtained on or prior to
that date, the Second Closing Date will be the date on which these
authorizations are obtained).
"SELLERS' REPRESENTATIVE" has the meaning given to it under Article 8.3.
"SETTLEMENT-DELIVERY DATE" means the date of the settlement and delivery to the
Purchaser or OPACO of the shares of Skis Rossignol acquired by the Purchaser or
OPACO, as the case may be, in the Cash Tender Offer (not including the shares
that may be acquired by the Purchaser or OPACO in connection with the reopening
of the Cash Tender Offer in accordance with Article 232-4 of the General
Regulation of the French Autorite des marches financiers, and which will be the
subject of a subsequent settlement-delivery).
"SKIS ROSSIGNOL" has the meaning given to it in the Preamble of this Agreement.
"SUBSIDIARY" means, with regard to any legal person, any person or entity
controlled by that legal person according to the meaning provided by Article L.
233-3 of the French Commercial Code, including any joint-venture company
(societe en participation), economic interest groupings (groupements d'interet
economiques) or partnership of which that legal person is a member, provided
that Article L. 233-3 of the French Commercial Code shall be interpreted to
include, mutatis mutandis, entities that are not commercial companies (for
example, non-commercial entities, economic interest groupings or associations).
"SUBSIDIARY SHARES" has the meaning given to it in Article 6.2(d).
"TRANSFER" means any transaction involving a transfer of ownership, including,
without limitation, (i) sales and transfers (with or without consideration,
inter vivos or mortis causa), including any transfer by means of an adjudication
or by virtue of a judgment, (ii) transfers for the payment of goods or services
(dation en paiement), or by means of an exchange, partition, division, loan
(including specifically any loan of securities), sale with right of repurchase
(vente a remere), contribution, business contribution, liquidation, merger or
demerger, spin-off, split-off or any combination of these transactions, (iii)
transfers concerning ownership, usufruct or any other subdivision of ownership
rights or any other right concerning the object of the transfer (and including,
where applicable, any voting right or the right to receive dividends), and to
"TRANSFER" means the right to proceed with any of the foregoing transactions, or
to undertake to proceed with such a transaction.
"UNLIMITED PARTNERS WITHDRAWAL AGREEMENT" means the agreement set forth in
Exhibit 3.2(b).
"UPFRONT PAYMENT" means an amount equal to EUR 6,559,241, representing 10% of
the Estimated Price of the Controlling Interest.
ARTICLE 2 - ACQUISITION TRANSACTIONS
THE PARTIES AGREED TO EXECUTE THE ACQUISITION ACCORDING TO THE FOLLOWING TERMS
AND STEPS:
2.1 TRANSFER OF THE PILOT EXPANSION SHARES
Under the condition subsequent provided by Article 4.1 below, and in accordance
with the other terms and conditions of this agreement, the Sellers transfer to
the Purchaser, and the Purchaser acquires from the Sellers, as of the date of
this Agreement (the "FIRST CLOSING DATE"), one thousand six hundred (1,600)
shares of Pilot Expansion, representing all of the shares of Pilot Expansion
(the "PILOT EXPANSION SHARES"), free of all encumbrances, charge, liens,
security interest or other restrictions, limitations or third party rights
whatsoever, in order to enable Quiksilver to become, indirectly, the sole
unlimited partner of the Company.
2.2 CASH TENDER OFFER
(a) The Purchaser shall file, directly or indirectly through a company in which
it holds all of the capital and voting rights, directly or indirectly
(hereinafter "OPACO"), as soon as possible before or after obtaining the
authorizations necessary for the Acquisition under the Antitrust Regulations, a
cash tender offer for all of the shares of Skis Rossignol (the "CASH TENDER
OFFER").
(b) The Cash Tender Offer price shall be nineteen (19) Euros per share in Skis
Rossignol.
(c) It is agreed between the Parties that the bid document (note d'operation)
filed with, and to be approved by, the French Autorite des marches financiers in
relation to the Cash Tender Offer, shall consist of a joint document (note
conjointe) by the Purchaser and/or OPACO and Skis Rossignol; and the Sellers
shall procure that Skis Rossignol supply all of the information and documents
required for the drafting of this document, including documents to be provided
by the auditors of Skis Rossignol. Following the filing of the bid document with
the French Autorite des marches financiers, the Sellers shall provide their
assistance to the Purchaser in the preparation of the documents relating to the
Cash Tender Offer, and more generally, in all of the steps taken by the
Purchaser in order to ensure the successful outcome of the Cash Tender Offer,
from the First Closing Date until the settlement and delivery of the shares
acquired by the Purchaser, whether in the Cash Tender Offer or, where
applicable, in connection with the buyout offer followed by a squeeze out (as
provided for in paragraph (e) below). Sellers will procure that Skis Rossignol,
for this whole period, provide its assistance to the Purchaser in these steps
and specifically that they (i) promptly supply the Purchaser with all of the
information which the French Autorite des marches financiers considers necessary
for the purposes of their decision on the admissibility of
the Cash Tender Offer and their approval of the bid documentation and (ii)
participate, at the request of the Purchaser, through the relevant members of
its management board and/or supervisory board, in any meetings and conference
calls that may be scheduled with the French Autorite des marches financiers, the
Independent Expert and/or any other authority or person in connection with the
Cash Tender Offer.
(d) The Sellers shall procure that the supervisory board of Skis Rossignol vote
unanimously in favor of a favorable and unconditional recommendation by the
supervisory board on the Cash Tender Offer filed by the Purchaser and/or OPACO.
(e) The Purchaser or OPACO shall file, if it holds directly and/or indirectly,
more than 95% of the capital or voting rights in Skis Rossignol at the end of
the Cash Tender Offer (including following a reopening of such offer pursuant to
Article 232-4 of the General Regulation of the French Autorite des marches
financiers, where applicable), a buyout offer (offre publique de retrait) bid
followed by a squeeze out (retrait obligatoire), in order to acquire from the
public the Skis Rossignol shares which it does not own at this date, and to
proceed, where applicable, with the delisting of the Skis Rossignol shares from
the Eurolist by Euronext, all in accordance with applicable laws and
regulations.
(f) The Sellers consider it to be in the interest of the shareholders of Skis
Rossignol to tender their shares to the Cash Tender Offer; consequently, they
will declare themselves publicly to be in favor of the Cash Tender Offer,
without reserve, and they shall refrain from making any comments or
observations, both in the public and the private domain, or from taking any
steps likely to encourage the shareholders of Skis Rossignol in general or any
one of them not to tender their shares to the Cash Tender Offer (including
shares tendered in connection with the reopening of such offer pursuant to
Article 232-4 of the General Regulation of the French Autorite des marches
financiers, where applicable) or to the buyout offer referred to in paragraph
(e) above.
(g) The Parties agree that (i) the Sellers will not tender the Remaining Skis
Rossignol Shares to the Cash Tender Offer, since these shares shall instead be
transferred to the Company pursuant to the Purchase Agreement for the Remaining
Skis Rossignol Shares provided for herein, and that (ii) the Company shall not
tender its Skis Rossignol shares to the Cash Tender Offer, since these shares
will have been transferred to the Purchaser indirectly by means of transfers of
shares in the Company pursuant to Articles 2.3 and 2.9 of this Agreement and the
SCA Shareholders' Agreement.
2.3 TRANSFER OF THE CONTROLLING INTEREST
(a) Subject to the condition precedent provided in Article 4.2 below, the
Sellers shall transfer to the Purchaser, and the Purchaser shall acquire from
the Sellers, on the Second Closing Date, three hundred and sixty one thousand
nine hundred and eighty nine (361,989) ordinary shares of common stock of the
Company, free of all encumbrances, charge, liens, security interest or other
restrictions, limitations or third party rights whatsoever (the "CONTROLLING
INTEREST"), representing 71.53% of the capital of the Company, being the
entirety of the ordinary shares of the Company (before taking into account the
Additional Company Shares issued in connection with the Capital Increase), it
being specified that the Sellers shall retain the Company's preferred shares
with limited voting rights in accordance with the SCA Shareholders' Agreement.
(b) As a guarantee for their obligation to deliver the Controlling Interest on
the Second Closing Date, the Sellers agree to deposit the Controlling Interest
in escrow, on the First Closing Date, in accordance with the Escrow Agreement
set forth in EXHIBIT 2.3(B); in return, as security for its obligation to pay
the price thereof, the Purchaser shall pay to the Sellers, on the First Closing
Date, an amount equal to the Upfront Payment, and consents to the escrow of an
amount equivalent to 70% of the Estimated Price of the Controlling Interest,
reduced by the Upfront Payment, in accordance with the Escrow Agreement.
2.4 SIGNING OF THE SCA SHAREHOLDERS' AGREEMENT
The Purchaser grants to the Sellers, and the Sellers grant to the Purchaser, an
option to buy and an option to purchase, respectively, the Company shares held
by the Sellers that are not transferred pursuant to Article 2.3 above (including
the preferred shares resulting from the Capital Increase set forth in Article
2.8), and the Parties agree to define certain conditions of their relations in
their capacity as shareholders of the Company and more specifically the terms of
the conversion of the Company into a societe par actions simplifiee (simplified
joint-stock company). For this purpose, the Parties shall, on the First Closing
Date, enter into the SCA Shareholders' Agreement set forth in Exhibit 2.4.
2.5 SIGNING OF THE MINORITY HOLDINGS PURCHASE AGREEMENT
The Parties shall procure the transfer by the Sellers to Skis Rossignol, on the
Second Closing Date, of the Minority Holdings. In order to decide upon the terms
and conditions of this transfer, henceforth, the Sellers shall enter into, and
shall procure that Skis Rossignol enter into, on the First Closing Date, the
Minority Holdings Purchase Agreement contained in EXHIBIT 2.5 providing, under
the terms and conditions set forth therein, for the transfer by the Sellers to
Skis Rossignol, on the Second Closing Date, of the entirety of the holdings held
directly or indirectly by the Sellers in the Subsidiaries of Skis Rossignol
(with the exception of the shares in Roger Cleveland US which are the subject of
put and call options under the RC Shareholders' Agreement).
2.6 SIGNING OF THE PURCHASE AGREEMENT FOR THE REMAINING SKIS ROSSIGNOL SHARES
The Parties shall procure the transfer by the Sellers to the Company, on the
Second Closing Date, of the Remaining Skis Rossignol Shares. In order to decide
upon the modalities of this transfer from this time on, the Sellers undertake to
sign with the Company, and to ensure that the Company signs with them, on the
First Closing Date, the Purchase Agreement for the Remaining Skis Rossignol
Shares set forth in EXHIBIT 2.6 providing, according to the terms and conditions
set forth herein, for the transfer by the Sellers to the Company, on the Date of
the Capital Increase, of the entirety of the shares of Skis Rossignol held
directly or indirectly by the Sellers who will not have transferred them under
the terms of Article 2.3 or contributed them to the Company in the context of
the Pre-Signing Transactions.
2.7 SIGNING OF THE RC SHAREHOLDERS' AGREEMENT
The Parties agree, on the Second Closing Date, to grant the Sellers an option to
sell, and to grant Rossignol Ski Company, Inc. (or any other company designated
by the Purchaser) an option to purchase, the shares in Roger Cleveland US held
directly or indirectly by the Sellers, and to define certain conditions of their
relations in their capacity as shareholders of Roger Cleveland US. For this
purpose, the Parties shall, on the First Closing Date, enter into the RC
Shareholders' Agreement set forth in Exhibit 2.7, it being specified that this
agreement shall not become effective until the Second Closing Date in accordance
with the terms thereof.
2.8 CAPITAL INCREASE OF THE COMPANY
(a) The Parties shall procure that the Company proceed, on the Second Closing
Date, with an increase in the capital of the Company, in cash, for an amount
equal to one million two hundred and fifty eight thousand one hundred and ninety
two (1,258,192) euros, not including the share premium (the "CAPITAL INCREASE").
(b) To this end, the Parties agree to provide their mutual assistance in order
to ensure the successful outcome of the Capital Increase on the scheduled date
and, specifically, to contact the Company's statutory auditor so that he can
deliver the relevant certifications in a timely manner.
(c) The Sellers undertake to subscribe the proposed capital increase in full and
to pay in full the price of the subscription at the date of the Capital Increase
stated above, by way of offset against the debt corresponding to the purchase
price of the Remaining Skis Rossignol Shares. The Parties agree in advance to
the offsetting of the debt to be incurred by the Company in connection with the
acquisition of the Remaining Skis Rossignol Shares, against the debt
corresponding to the subscription price of the shares issued in the Capital
Increase; and they agree that such debts shall become certain, due and payable
(certaines, liquides et exigibles) on the Second Closing Date, as a result of
the completion of the Acquisition transactions set forth in this Agreement, in
such a way that the offsetting shall be effected without the need for any
supplementary deed, agreement or undertaking.
(d) Based on the price of the Remaining Skis Rossignol Shares transferred to the
Company and the valuation retained for the Company for the purposes of the
Transfer of the Controlling Interest (without taking into account any
Controlling Interest Purchase Price Adjustment), the Capital Increase will
result in an issue of 76,518 ordinary shares and 2,119 preferred shares of the
Company (the "ADDITIONAL COMPANY SHARES"). The Parties understand and agree that
the number of Additional Company Shares and the amount of the Capital Increase
results from the price offered by the Purchaser for each share in Skis Rossignol
as part of the Cash Tender Offer, and the values freely negotiated between them,
retained for the other assets and liabilities of the Company. Consequently, the
Parties waive, in advance, any right to recourse that they may have one against
the other or against the Company, due to the fact that the amount of the Capital
Increase may not correspond to the real value of the Remaining Skis Rossignol
Shares.
2.9 TRANSFER OF THE ADDITIONAL TRANSFERRED SHARES
Subject to the condition precedent of the performance of the Capital Increase,
and in accordance with the terms and conditions of this Agreement, the Sellers
shall transfer to the Purchaser, and the Purchaser shall buy from the Sellers,
on the Second Closing Date, seventy six thousand five hundred and eighteen
(76,518) ordinary shares of the Company, issued as part of the Capital Increase
(the "ADDITIONAL TRANSFERRED SHARES"), representing 13.09 % of the capital of
the Company, free of all encumbrances, charge, liens, security interest or other
restrictions, limitations or third party rights whatsoever, according to the
terms and conditions defined by this Agreement.
ARTICLE 3 - PRICE, COMPLETION OF TRANSFERS
3.1 PRICE
(a) The sale and purchase of the Pilot Expansion Shares shall be made for a
total price of ten thousand Euros (E10,000) (the "PURCHASE PRICE OF THE
PILOT EXPANSION SHARES").
(b) The sale and purchase of the Controlling Interest shall be made and accepted
for a price per Company share of one hundred and eighty-one Euros and twenty
cents (E181.20), being a total price of sixty-five million five hundred and
ninety-two thousand four hundred and seven Euros (E65,592,407) (the "ESTIMATED
PRICE OF THE CONTROLLING INTEREST"), reduced or increased by the Controlling
Interest Purchase Price Adjustment, determined in accordance with paragraph (e)
below (the "PURCHASE PRICE OF THE CONTROLLING INTEREST").
(c) The sale and purchase of the Additional Transferred Shares shall be made and
accepted for a price per Company share of one hundred and eighty-one Euros and
twenty cents (E181.20), being a total price of thirteen million eight hundred
and sixty-five thousand and sixty-two Euros (E13,865,062) (the "PURCHASE PRICE
OF THE ADDITIONAL TRANSFERRED SHARES").
(d) Payment of the Purchase Price of the Pilot Expansion Shares shall be made on
the First Closing Date, by wire transfer of an amount equal to the Purchase
Price of the Pilot Expansion Shares to an account indicated by the Sellers'
Representative no later than five (5) days before the First Closing Date.
(e) Payment of the Purchase Price of the Controlling Interest and the Purchase
Price of the Additional Transferred Shares shall be made as follows:
(i) As security for its obligation to pay the Purchase Price of the
Controlling Interest, (x) the Purchaser shall escrow on the First Closing Date,
in accordance with the Escrow Agreement set forth in EXHIBIT 2.3(B), an amount
corresponding to seventy percent (70%) of the Estimated Price of the Controlling
Interest, reduced by the Upfront Payment, by wire transfer of an amount equal to
39,355,444 Euros, and (y) the Purchaser shall pay the Upfront Payment to the
Sellers, in cash by wire transfer to the account indicated by the Sellers for
the payment of the Purchase Price of the Shares of Pilot Expansion.
(ii) The Estimated Price of the Controlling Interest has been calculated on
the basis of the Sellers' good faith estimate of the Net Assets of the Company
at the First Closing Date, being a negative amount equal to (1,471,888) Euros
(the "ESTIMATED NET ASSETS"), a detailed statement of which shall have been
given to the Purchaser no later than the fifth (5th) day before the First
Closing Date. The Purchaser shall have a period of twenty (20) days following
the First Closing Date, in which to notify the Sellers of its comments on the
calculation of the Net Assets of the Company at the First Closing Date as
determined by the Sellers. In the absence of any comments passed to the Sellers
within this period, the Net Assets of the Company at the First Closing Date
shall be deemed to be the Estimated Net Assets, and the Controlling Interest
Purchase Price Adjustment shall be equal to zero. However, in the event that the
Purchaser does notify comments to the Sellers, the Sellers shall have a period
of ten (10) days in which to indicate to the Purchaser their agreement or
disagreement with such comments made by the Sellers. In the event of an
agreement of the Sellers, or in the absence of any notification sent to the
Purchaser within the ten (10) day period mentioned above, the Net Assets of the
Company at the First Closing Date shall be deemed to be the amount of the Net
Assets of the Company calculated by the Purchaser. In the event that the Sellers
disagree with the comments made by the Purchaser, the Sellers and the Purchaser
shall have an additional period of ten (10) days in which to reach an agreement
on the amount of the Net Assets of the Company at the First Closing Date. On
expiry of this period, in the absence of an agreement between the Parties, the
Parties shall by common agreement designate an international firm of auditors
(the "EXPERT") which shall be charged with determining the amount of the Net
Assets of the Company at the First Closing Date, if possible within twenty (20)
days from its appointment, expressing an opinion solely on the points of
disagreement existing between the Parties, and using the amounts on which the
Parties are in agreement as a basis for the other elements of the calculation.
In the event that the Parties cannot reach an agreement on which Expert to
appoint, the Expert shall be appointed by the Commercial Court of Paris at the
request of the most diligent party. The amount of the Net Assets of the Company
at the First Closing Date indicated by the opinion of the Expert shall be
binding on the Parties and shall serve as a basis for the calculation of the
Purchase Price of the Controlling Interest. The fees of the Expert shall be
payable by the Sellers or by the Purchaser depending on whether the amount of
the Net Assets of the Company, as determined by the Expert, is nearer to the
estimation of such amount made by the Purchaser or the Sellers respectively, at
the time of recourse to the Expert. The Purchase Price of the Controlling
Interest shall consist of an amount equal to the Estimated Price of the
Controlling Interest, (x) increased by an amount equal to the difference between
the amount of the Net Assets of the Company at the First Closing Date and the
Estimated Amount of the Net Assets (the "INCREASE OF THE NET ASSETS"), if such
difference is positive or (y) reduced by an amount equal to the absolute value
of the Increase of the Net Assets, if the Increase of the Net Assets is negative
(the "CONTROLLING INTEREST PURCHASE PRICE ADJUSTMENT").
(iii) On the Second Closing Date,
(1) the Purchaser shall remit to the Sellers share certificates drawn
up in the name of each of the Sellers, allocated amongst them in accordance with
EXHIBIT 3.1(C), representing a total number of shares of the Purchaser's common
stock determined in a way that the value of the common shares of the Purchaser
so remitted shall represent 30% of the amount of the Estimated Price of the
Controlling Interest and of the Purchase Price of the
Additional Transferred Shares, provided that the value of each such share shall
be the closing price of $28.99 on the New York Stock Exchange on April 12, 2005
or, alternatively, upon agreement of the Parties in good faith, such 30%
consideration to be paid in stock may instead be paid in cash, which the Sellers
would be obligated to use all or a portion of to purchase shares of the
Company's common stock in open market or privately regulated transactions, in
each case in accordance with applicable laws.
(2) either (x) the Escrow Agent will release to the Sellers an amount
equal to 70% of the Estimated Price of the Controlling Interest, less the
Upfront Payment, escrowed pursuant to paragraph (i) above, and the Purchaser
shall pay to the Sellers the Controlling Interest Purchase Price Adjustment, if
the Purchase Price of the Controlling Interest is greater than or equal to the
Estimated Price of the Controlling Interest, or (y) the Escrow Agent will
release to the Sellers an amount equal to 70% of the Estimated Purchase Price of
the Controlling Interest less the Upfront Payment, escrowed pursuant to
paragraph (i) above, reduced by the Controlling Interest Purchase Price
Adjustment, and shall pay to the Purchaser the Controlling Interest Purchase
Price Adjustment, if the Purchase Price of the Controlling Interest is less than
the Estimated Price of the Controlling Interest;
(3) the Purchaser shall pay to the Sellers 70% of the Purchase Price
of the Additional Transferred Shares, in cash by wire transfer to an account
indicated by the Seller's Representative to the Purchaser no later than five (5)
days before the Second Closing Date (or, if no indication is given, to the
account indicated by the Sellers for receiving the Upfront Payment).
(f) The shares of common stock of the Purchaser remitted to the Sellers pursuant
to paragraph (e) above shall be non-transferable for a period of three years
from the Second Closing Date. Consequently, the Sellers undertake vis-a-vis the
Purchaser, except with the prior written agreement of the Purchaser, for
themselves and on behalf of all the entities that they control or that are under
common control with them, from the date of the delivery of the Quiksilver shares
to them and until the expiry of a period of three years thereafter, not to (x)
offer, loan, assign, sell, issue or otherwise Transfer (including by way of
public offering, private placement with institutional investors or directly
contracted transfer), directly or indirectly (including by means of the use of
any financial instrument, swap or other optional agreement or instrument),
Quiksilver shares or any other instruments giving the right, through conversion,
exchange, redemption, exercise of a warrant or otherwise, to the allocation of
securities (issued or to be issued) representing an equity interest in
Quiksilver, or enter into any agreement that would result in an assignment or
transfer, in full or in part, of the financial consequences of the ownership of
Quiksilver shares; nor to (y) publicly announce its intent to carry out such an
offer, loan, assignment, sale, issue or Transfer; nor to (z) grant or consent to
the grant of a pledge, security interest, lien, charge, encumbrance or other
right relating to the Quiksilver shares or any of the securities mentioned in
paragraph (x) above (provided that pledges of such shares or securities shall be
permitted on the condition that the beneficiary of the pledge agrees to be bound
by this lock-up agreement for the remaining duration of the 3-year period);
provided that each of the Sellers shall at all times be entitled to Transfer its
shares to any other Seller and to any company in which the Sellers together hold
all of the capital and voting rights (except for director's shares transferred
to a director in order for her/him to be able to validly perform her/his
functions), on the condition that, during the entire period in which the
transfer restrictions herein remain in force, (i) the Transferee agrees in
writing, prior to the Transfer, to be bound by the transfer
restrictions herein (provided that Sellers shall be jointly liable in the event
of a breach of such agreement) and (ii) the Sellers continue to hold, together,
the entirety of the capital and voting rights of the transferee (except for
directors' qualifying shares). Each of the Sellers shall be jointly and
severally liable with the other Sellers for purposes of the lock-up agreement
contained herein. Any act or commitment taken or made in breach of the transfer
restrictions herein shall be null and void and shall not be enforceable against
the Purchaser; the Purchaser shall not give effect to any request for transfer
made in breach of these transfer restrictions.
3.2 COMPLETION OF THE FIRST CLOSING
At the First Closing Date,
(a) the Sellers shall remit to the Purchaser the documents listed in Exhibit
3.2(a);
(b) a meeting of the shareholders of Pilot Expansion duly convened by the
Sellers shall be held, for the purpose prior to the transfer of the Pilot
Expansion Shares, of (i) modifying the by-laws of Pilot Expansion, in order to
enable the transfer of the Pilot Expansion Shares to the Purchaser, and (ii)
approving the transfer to the Purchaser of the entirety of the shares in Pilot
Expansion, under the terms of this Agreement, (iii) authorizing the resignation
of the management and the appointment of Mr. Bernard Mariette as the replacement
manager and (iv) of modifying the by-laws of Pilot Expansion accordingly;
(c) concurrently with the meeting held pursuant to paragraph (b) above, a
general meeting of the limited partners of the Company, duly convened by the
Sellers, will be held, for the purpose, prior to the performance of the transfer
of the Shares of Pilot Expansion, of (i) proceeding with the Pre-Signing
Transactions, amending the Company's by-laws to provide for transfer
restrictions applicable to the Company preferred shares and the put and call
options with respect to such preferred shares, (ii) modifying Article 3.1 of
the Company by-laws, in order to enable Pilot Expansion to remain sole unlimited
partner of the Company following the transfer by Mr. Laurent Boix-Vives and Ms.
Jeannine Boix-Vives of their shares in Pilot Expansion, (iii) modifying Article
4.3 of the by-laws, in order that the resignations of the managers of the
Company take effect immediately on the First Closing Date, (iv) agreeing in
advance to the escrow and further transfer of the Controlling Interest of the
limited partners of the Company, subject to the transfer of the Pilot Expansion
Shares and immediately upon such transfer, (v) acknowledging the resignation of
Mr. Laurent Boix-Vives, Ms. Jeannine Boix-Vives, Ms. Sylvie Bernard and Ms.
Christine Simon from their positions as managers of the Company, and appointing
Pilot Expansion to replace them, (vi) acknowledging the withdrawal and
cancellation of the unlimited shares of Mr. Laurent Boix-Vives, Ms. Jeannine
Boix-Vives, Ms. Sylvie Bernard and Ms. Christine Simon pursuant to the Unlimited
Partners Withdrawal Agreement, and then amend the Company's by-laws accordingly,
(vii) authorizing the management to proceed with the Capital Increase, (viii)
authorizing in advance the transfer of the Additional Transferred Shares, and
(ix) authorizing, further to the resignation of the current members of the
Company's Supervisory Board (subject to the transfer of the Controlling
Interest), the appointment of Quiksilver Alps LLC and Quiksilver Links LLC as
new members of the Supervisory Board;
(d) concurrently with the meetings held pursuant to paragraphs (b) and (c)
above, a general meeting of the unlimited partners of the Company will be held,
duly convened by the Sellers, for
the purpose, prior to the completion of the transfer of the Pilot Expansion
Shares, of (i) proceeding with the Pre-Signing Transactions, amending the
Company's by-laws to provide for transfer restrictions applicable to the Company
preferred shares and the put and call options with respect to such preferred
shares, (ii) authorizing the escrow and subsequent transfer to Purchaser of the
Company shares and, subject to the transfer of the Pilot Expansion Shares, (iii)
acknowledging the resignation of the Company's managers and appointing Pilot
Expansion to replace them, (iv) acknowledging the cancellation of the former
managers' unlimited shares, (v) amending the by-laws accordingly, and (v)
approving all of the resolutions passed by the general meeting of limited
partners;
(e) the Sellers in their capacity as limited partners, and the Sellers and the
Purchaser in their capacity as successive partners of Pilot Expansion and
successive unlimited partners of the Company, shall vote in favor of the
resolutions proposed in accordance with paragraphs (b) through (d) above;
(f) the Purchaser shall pay the Sellers the Price of the Pilot Expansion Shares
and the Upfront Payment, and escrow the relevant amounts in accordance Article
3.1 above.
Except by means of the Purchaser's written waiver on the submission of a
document, each and every one of the operations that must be performed on the
First Closing Date shall be deemed effected under the condition precedent of all
such operations being carried out, in such a way that no operation or submission
of documentation shall be deemed definitive for so long as all of the operations
and submissions remain incomplete. The Parties undertake to carry out all of the
formalities and to take all measures that may be necessary for the successful
outcome of the operations that must be completed at the First Closing Date
pursuant to this Agreement.
3.3 COMPLETION OF THE SECOND CLOSING
At the Second Closing Date,
(a) the Controlling Interest shall be transferred to the Purchaser and the price
therefor shall be paid to the Sellers, under the terms provided in this
Agreement and in the Escrow Agreement;
(b) the Minority Holdings shall be transferred to Skis Rossignol under the terms
of the Minority Holdings Purchase Agreement;
(c) the Capital Increase shall be effected under the terms of Article 2.8; the
manager of the Company, on delegation by the general meeting, shall decide on
the Capital Increase and observe the consummation thereof;
(d) the Sellers shall remit to the Purchaser the documents listed in Exhibit
3.3(d);
(e) the Purchaser shall remit to the Sellers the Purchase Price of the
Additional Transferred Shares, under the terms defined in Article 3.1.
Except by means of the Purchaser's written waiver on the submission of a
document, each and every one of the operations that must be performed on the
Second Closing Date shall be deemed
effected under the condition precedent of all such operations being carried out,
in such a way that no operation or submission of documentation shall be deemed
definitive for so long as all of the operations and submissions remain
incomplete. The Parties undertake to carry out all of the formalities and to
take all measures that may be necessary for the successful outcome of the
operations that must be completed at the Second Closing Date pursuant to this
Agreement.
ARTICLE 4 - CONDITION SUBSEQUENT; CONDITION PRECEDENT; COMPETING BIDS
4.1 CONDITION SUBSEQUENT
The transfer of the Pilot Expansion Shares in accordance with Article 2.1 is
subject to the condition subsequent of the failure to obtain the authorizations
necessary for the performance of the Acquisition pursuant to Antitrust
Regulations as of December 31, 2005.
4.2 CONDITION PRECEDENT
Any and all obligations to be performed by the Parties at the Second Closing
Date pursuant to this Agreement (including the Ancillary Agreements) shall be
subject to the condition precedent that the authorizations necessary for
carrying out the Acquisition pursuant to the Antitrust Regulations shall have
been obtained.
4.3 COMPETING BID
(a) In the event that one or more public bids for the shares of Skis Rossignol
are declared admissible by the French Autorite des marches financiers and
compete with the Cash Tender Offer (a "COMPETING BID"), the Sellers shall remain
bound by their obligation to transfer the Remaining Skis Rossignol Shares to the
Company pursuant to the Purchase Agreement for the Remaining Skis Rossignol
Shares. The Parties understand and agree that payment of damages would not
constitute an adequate remedy, in the event of the breach by the Sellers of
their obligation to deliver the Remaining Skis Rossignol Shares; and they hereby
agree that the remedy of specific performance (execution forcee) shall apply in
the event of such a breach, as well as in the event of a failure by the
Purchaser to pay the Price of the Additional Transferred Shares.
(b) In the event that the Sellers, in breach of the obligations set forth in
this Agreement, tender their Remaining Skis Rossignol Shares to a Competing Bid
or Transfer such shares or any other rights they hold in Skis Rossignol to any
person other than the Company or the Purchaser, the Sellers shall pay the
Purchaser, by no later than the date on which the Transfer takes place, a fixed
amount equal to one-third of the pre-tax gain realized by Sellers in connection
with the Transfer. This payment shall become due and payable irrespective of any
recourse or actions taken by the Purchaser in an attempt to obtain the specific
performance of Sellers' obligation to deliver the Remaining Skis Rossignol
Shares; any damages granted to the Purchaser or the Company as a result of
Sellers' breach of this obligation or any other obligation under this Agreement
shall be in addition to, and not in replacement of, this payment.
(c) In the event that the Transfer of the Controlling Interest should take place
on the Second Closing Date while a Competing Bid is underway, if the Purchaser
should derive capital gains from a Transfer of the shares of Skis Rossignol
owned by the Company to the party initiating the
Competing Bid, the Purchaser shall pay the Sellers an amount equal to a third of
these capital gains, provided that such capital gains shall be calculated as the
excess of (i) the sale price of the Skis Rossignol Shares held by the Company,
before taxes, multiplied by the % share held by Quiksilver in the Company's
capital, over (ii) the acquisition cost of the Controlling Interest. This
payment shall become due and payable irrespective of any recourse or actions
taken by the Sellers to obtain the specific performance of Purchaser's
obligations under this Agreement; any damages granted to the Sellers as a result
of Purchaser's breach of its obligations under this Agreement (if any) shall be
in addition to, and not in replacement of, this payment.
4.4 EFFECTS
If the Transfer of Pilot Expansion Shares is cancelled (resolu) pursuant to
Article 4.1 above, (i) the Pilot Expansion Shares shall be returned to the
Sellers, and the Price of the Pilot Expansion Shares shall be returned to the
Purchaser; (ii) the securities and amounts placed in escrow shall be returned to
their original owners pursuant to the Escrow Agreement; (iii) the Sellers shall
return the Upfront Payment to the Purchaser; and (iv) the Parties shall be
released from any obligation to one another under this Agreement and the
Ancillary Agreements, with the exception of (x) obligations of confidentiality
and other obligations that this Agreement or the Ancillary Agreements expressly
state shall continue in effect after the cancellation of the sale of the
Controlling Interest; and (y) remedies available to the Parties as a result of a
breach of or non-compliance with their obligations under the Agreement or the
Ancillary Agreements by one of the parties to the agreements in question;
provided that (i) if the transactions to be performed on the Second Closing Date
do not take place following the Purchaser's failure to comply with an essential
obligation of this Agreement, the Upfront Payment shall remain the property of
the Sellers as compensation; and (ii) if the Sellers (directly or indirectly)
tender their shares of Skis Rossignol to a Competing Bid, the Sellers shall pay
the Purchaser an amount equal to two million euro to cover fees and expenses
incurred by the Purchaser in the preparation and structuring of the Acquisition
(provided, however, that such amount shall be capped at the excess of the sale
price directly obtained by the Sellers for their shares of Skis Rossignol over
the sum of the Estimated Price for the Controlling Interest and the Purchase
Price for Additional Transferred Shares).
4.5 THE PARTIES' COMMITMENTS
(a) The Parties shall endeavor to promptly obtain all authorizations needed to
carry out the Acquisition pursuant to Antitrust Regulations, it being understood
that none of the provisions of this Agreement shall be construed to force the
Purchaser or the Sellers to consent, against their will, to the Transfer of any
business or Subsidiary of Skis Rossignol or the Purchaser in order to obtain
such authorizations.
(b) The Sellers undertake not to solicit from a third party, whether directly or
indirectly, any proposal to transfer shares of Skis Rossignol, and the Sellers
agree not to discuss the possibility of such a transfer with anyone.
ARTICLE 5 - THE PARTIES' COMMITMENTS
5.1 MANAGEMENT OF THE SKIS ROSSIGNOL GROUP BETWEEN THE FIRST CLOSING DATE AND
THE SECOND CLOSING DATE
(a) From the First Closing Date and until the re-formation of the management
bodies of Skis Rossignol set forth in Article 5.2 takes effect (the "INTERIM
PERIOD"), the Sellers shall procure that Skis Rossignol and its Subsidiaries be
managed prudently (en bon pere de famille), carry out activities in the ordinary
course of business and in compliance with past practice, and perform only those
everyday operations falling within their normal scope of activities.
(b) Without prejudice to the foregoing, the Sellers shall procure that Skis
Rossignol and its Subsidiaries neither resolve to nor carry out, during the
Interim Period, unless the Purchaser so agrees, and with the exceptions set
forth in Exhibit 5.1(b), (i) any distribution of profits or reserves, any
amortization or redemption of its capital, any purchase of its own limited or
unlimited shares, or any other distribution to their limited or unlimited
partners; (ii) any merger, contribution, demerger, spin-off, split-off or other
transaction affecting the Company's stock or equity, any issuance of securities
or equity (with the exception of issues of stock resulting from the exercise of
Skis Rossignol stock options that already existed on the First Closing Date), or
any allocation of options to subscribe for or purchase stock; (iii) any change
to their bylaws; (iv) any application for or any early repayment of a loan or
any other type of financial obligation with a total value greater than or equal
to fifty thousand Euros (E50,000); (v) any significant acquisition or sale
of assets; (vi) any acquisition or sale of a significant equity interest (titres
de participation), or the creation or dissolution of any subsidiary or branch;
(viii) any increase in the remuneration packages of their senior executives, or
the replacement of any senior executive; (viii) any material change to their
contractual or business practices; (ix) any termination of or entry into a
significant agreement, including any agreement which term exceeds three years,
any agreement containing an exclusivity or non-competition clause, and any
agreement reasonably likely to involve (through a single agreement or through a
series of related agreements) payment to or by Skis Rossignol and its
Subsidiaries of an amount greater than fifty thousand Euros (E50,000); (x)
the granting of any loan, advance, security, pledge, or guarantee, or the
creation of any Lien, other than loans and advances made by Skis Rossignol in
favor of its Subsidiaries (other than Roger Cleveland US) in the normal course
of business; (xi) any acquisition of its own shares (including indirectly
through a third party), or any steps likely to cause a shareholder to be
deprived of his voting rights or his double voting rights in Skis Rossignol
(other than any steps related to depriving a shareholder of his voting rights if
such shareholder has neglected to file those declarations which are required to
be filed under applicable regulations upon the crossing of certain thresholds in
the share capital or voting rights of Skis Rossignol; and Skis Rossignol shall
take such steps if the Purchaser makes such a request to the Sellers), in such a
way that the Company's share of the voting rights in Skis Rossignol does not
exceed 49.84% at any time during the Interim Period, and (xii) until the
authorizations needed for the Acquisition pursuant to Antitrust Regulations have
been obtained, any general shareholders' meeting of Skis Rossignol, except for
annual meetings that, by law, must be held and to which only those resolutions
mandated by law will be submitted.
(c) The Sellers shall procure that, during the Interim Period, Skis Rossignol
consult the Purchaser prior to making any important decision regarding the
planned restructuring, about which the Purchaser acknowledges that he has been
informed and the cost of which will be reserved against in the accounts as at
March 31, 2005. The Sellers shall procure that any press release or official
communication from Skis Rossignol or any of its representatives about the
restructuring shall be made only with the Purchaser's prior approval.
5.2 RE-FORMATION OF THE MANAGEMENT AND SUPERVISORY BODIES OF SKIS ROSSIGNOL AND
ITS SUBSIDIARIES
(a) The Parties agree that the supervisory bodies of Skis Rossignol will be
re-formed immediately after the Settlement-Delivery Date, in accordance with the
Purchaser's instructions. To this end, the Sellers will procure that a
supervisory board meeting for Skis Rossignol be held on the Second Closing Date,
during which members of the supervisory board shall be replaced by new members
chosen by the Purchaser, by means of successive co-optation, provided that no
fee or compensation shall be charged to Skis Rossignol or any of its
Subsidiaries as a result of these replacements. The Sellers shall procure that
the number of members on the supervisory board on that date shall be sufficient
to allow members to be replaced on a rolling basis.
(b) The Sellers shall procure that the shareholders and holders of an equity
interest in the Subsidiaries of Skis Rossignol, and the holders of securities
giving access to the capital or the voting rights of Subsidiaries of Skis
Rossignol, other than (i) those people explicitly designated by the Purchaser as
being required to keep their equity interest or securities; (ii) the Sellers,
whose securities are transferred pursuant to the Minority Holdings Purchase
Agreement; and (iii) shareholders and holders who are Subsidiaries of Skis
Rossignol, (the "MINORITY SHAREHOLDERS") transfer all of the equity interests or
securities they hold in the Subsidiaries, within ten (10) days following the
Settlement-Delivery Date, free of any Liens, to persons who shall have been
designated by the Purchaser by no later than the Settlement-Delivery Date,
provided that such transfers shall not give rise to any charge whatsoever for
Skis Rossignol or any of its Subsidiaries. Following these transactions, the
persons appointed by the Purchaser shall be valid owners of the equity interests
and securities so transferred by the Minority Shareholders.
5.3 NAME OF THE GROUP
Following the Acquisition, the combined business shall be conducted under the
corporate name (denomination sociale) "Quiksilver-Rossignol."
5.4 COOPERATION
(a) Each of the Parties undertakes to deliver any document to the other Party,
to complete any formalities, and to adopt any resolutions or secure from a third
party the completion of any acts that the other Party may reasonably request as
part of carrying out the Acquisition, with the specification that this provision
cannot be interpreted as compelling the Parties, their officers or their
corporate bodies to contravene any legal or regulatory obligation.
(b) Following the First Closing Date, the Sellers will procure that the
Purchaser and the persons selected by the Purchaser shall benefit from complete
and unlimited access to the premises, personnel, documents (contractual,
accounting, or other), and all of the consultants, co-contractors, and auditors
of Skis Rossignol and its Subsidiaries.
ARTICLE 6 - SELLERS' REPRESENTATIONS
The Sellers represent and warrant the following to the Purchaser:
6.1 OWNERSHIP OF TRANSFERRED SHARES
(a) On the First Closing Date, the Sellers hold all of the rights conferring
full ownership (pleine propriete) over the Pilot Expansion Shares, which are
fully paid and free of any free of all encumbrances, charge, liens, security
interest or other restrictions, limitations or third party rights whatsoever
(hereinafter a "LIEN"). Consequently, (i) the Purchaser shall become the valid
owner of the Pilot Expansion Shares, free of any Lien, as of the First Closing
Date; and (ii) the Pilot Expansion Shares shall be validly sold on this same
date and transferred to the Purchaser, who will then become the owner thereof,
and this transfer shall be enforceable against third parties, subject to the
filing with the clerk of the competent Commercial Court of two original copies
of the deed of purchase set forth in Exhibit 8.8.
(b) From the First Closing Date until the Second Closing Date, the Sellers will
hold all of the rights conferring full ownership (pleine propriete) over the
shares comprising the Controlling Interest, which are fully paid and free of any
Liens, with the exception of Liens created by this Agreement. Consequently, (i)
the Purchaser shall become the valid owner of the Controlling Interest, free of
any Liens, as of the Second Closing Date; and (ii) the Controlling Interest
shall be validly sold on this same date and transferred to the Purchaser, who
will then become the owner thereof, and this transfer shall be enforceable
against third parties.
(c) Other than (i) the Pilot Expansion Shares and the shares transferred in
connection with the transfer of the Controlling Interest; (ii) the Minority
Holdings, which shall be transferred pursuant to the Minority Holdings Purchase
Agreement; (iii) the Remaining Skis Rossignol Shares, which shall be transferred
pursuant to the Purchase Agreement for the Remaining Skis Rossignol Shares; (iv)
the Additional Transferred Shares, which shall be transferred pursuant to
Article 2.9; (v) the shares of the Company, which are the subject of the SCA
Shareholders' Agreement; and (vi) the shares of Roger Cleveland US, which are
the subject of the RC Shareholders' Agreement, the Sellers do not hold on the
First Closing Date, and will not hold on the Second Closing Date, any direct or
indirect equity interest in the Company, Skis Rossignol, or any of their
respective Subsidiaries and, with the exception of rights arising from this
Agreement and the Ancillary Agreements, they have no direct or indirect right
against the Company, Skis Rossignol or any of their Subsidiaries.
6.2 OWNERSHIP OF THE COMPANY'S AND PILOT EXPANSION'S ASSETS; OWNERSHIP OF SHARES
OF SKIS ROSSIGNOL
(a) On the First Closing Date, Pilot Expansion owns ten unlimited shares of the
Company, free of any Liens. With the exception of these unlimited shares, Pilot
Expansion does not own any assets. With the exception of liabilities listed in
Exhibit 6.2(a), it has no debt, liability or obligation whatsoever.
(b) On the First Closing Date, the Company owns, together with SDIF, (i)
4,784,979 shares of Skis Rossignol, representing 38.43% of the capital and
49.84% of the voting rights in Skis Rossignol, free of any Liens; and (ii) those
other equity interests and assets listed in Exhibit 6.2(b), also free of any
Liens. With the exception of these equity interests and assets, neither the
Company nor SDIF owns any assets. Furthermore, neither of them has any debt,
liability or obligation whatsoever, except for debts and obligations listed in
Exhibit 6.2(b).
(c) With the exception of 12,488,064 shares and options to purchase 342,750
shares, Skis Rossignol has not issued any shares or securities or other rights
representing, or giving access to the capital or voting rights of Skis Rossignol
and, except for this Agreement, there are no agreements or commitments which
contemplate the grant or the issue of such securities or rights.
(d) Exhibit 6.2(d) sets forth, as of the First Closing Date and as of the Second
Closing Date, (i) the number of shares and other equity interests, securities
and rights representing or giving access to the capital or voting rights of each
Subsidiary of Skis Rossignol and of the Company (hereinafter the "SUBSIDIARY
SHARES"), and (ii) for each Subsidiary in which Skis Rossignol does not directly
or indirectly hold all of the Subsidiary Shares, the identity of the
shareholders or holders of the Subsidiary Shares and the number of Subsidiary
Shares that they hold as compared to the total number of shares of the
Subsidiary in question. The Subsidiary Shares held by Skis Rossignol or by its
Subsidiaries are free of any Liens. Except for the equity interests in the
Company Subsidiaries mentioned in Exhibit 6.2(d), neither the Company nor Skis
Rossignol directly or indirectly holds any share or equity interest or other
right representing an interest in the capital or the voting rights in any
company or other legal entity (including any interest groupings or joint
venture, any de facto partnership (societe de fait) of other structure involving
partners' liability that is not limited to their contributions). Except for the
securities and rights mentioned in Exhibit 6.2(d), there are no shares, equity,
or other security representing capital or voting rights or entitling one to
capital or voting rights for any Subsidiary of the Company or of Skis Rossignol.
(e) As of March 29, 2005, Skis Rossignol held 383,631 of its own treasury
shares. The supervisory board of Skis Rossignol indicated on March 23, 2005 that
it was asking that (i) Skis Rossignol waive its stock repurchase program for
which a prospectus was filed with the French Autorite des marches financiers on
June 18, 2004 under number 04-609 and which had been authorized by the
shareholders' general meeting on July 20, 2004 and (ii) the management board
take all necessary measures to this effect. The management board committed on
March 24, 2005 to waive the company's stock repurchase program. Consequently,
Skis Rossignol published a press release indicating it had waived its stock
repurchase program. In addition, Skis Rossignol is not a party to an agreement
that would allow a third party to repurchase shares of Skis Rossignol on behalf
of Skis Rossignol, so that it will not repurchase any of its own shares on the
market during the Interim Period.
6.3 PARTNERS OF THE COMPANY AND OF PILOT EXPANSION
(a) With the exception of the shares that were validly transferred to the
Purchaser as part of the transfer of Pilot Expansion Shares, on the First
Closing Date there are no shares or other equity interests or securities
representing or giving immediate or future access to the capital or voting
rights of Pilot Expansion.
(b) On the First Closing Date following the signing of the Unlimited Partners
Withdrawal Agreement and with the exception of (i) shares of the Company that
shall be validly transferred to the Purchaser as part of the transfer of the
Controlling Interest; (ii) the unlimited shares of the Company held by Pilot
Expansion; and (iii) 146,169 preferred shares of the Company that are still held
by the Sellers and which, as from the First Closing Date, are the subject of the
call option granted to the Purchaser pursuant to the SCA Shareholders'
Agreement, there are no
unlimited shares, limited shares or other equity interests or securities
representing or giving immediate or future access to the capital or voting
rights of the Company.
6.4 SELLERS' CAPACITY; CONSENTS
(a) The Sellers have all requisite power to enter into this Agreement and carry
out their obligations hereunder. This Agreement, the Ancillary Agreements and
all of the related documents have been or will be duly signed by each of the
Sellers and they are valid and enforceable in accordance with their terms. Mr.
Laurent Boix-Vives personally represents and warrants to the Parties and the
other signatories that he is duly authorized by the corporate bodies of SDI,
which he represents, for the purpose of signing this Agreement.
(b) Except for any consents, approvals, authorizations and waivers, which this
Agreement explicitly states are to be obtained after the First Closing Date, the
Sellers have obtained all consents, approvals, authorizations and waivers that
are required to be obtained in connection with the signing and the performance
of Sellers' obligations under this Agreement and the Ancillary Agreements. There
is no legal, arbitral or administrative action, claim, proceeding or
investigation which could prevent the Sellers from signing this Agreement or
performing their obligations hereunder currently underway and to the Knowledge
of the Sellers, no such action, claim, proceeding or investigation is
threatened. The signing of this Agreement, the completion of the Acquisition and
the performance by the Sellers of all of their obligations under this Agreement
(i) do not and will not conflict with or violate any of the bylaws of the
Company, Skis Rossignol or any of their Subsidiaries, nor will they require any
approval or consent from a corporate body of any one of these entities, except
for those approvals and consents which are explicitly stated in this Agreement
to be obtained after the First Closing Date; (ii) do not and will not conflict
with or violate any legal or regulatory provision or any administrative, legal
or arbitral decision; (iii) do not and will not conflict with or violate, or
create any rescission, termination or cancellation right under, any permits,
approvals or authorizations which are required for business purposes of the
Company, Skis Rossignol or their Subsidiaries; and (iv) do not and will not
conflict with or violate, or entitle a third party to any rights (including any
acceleration or early termination rights) under, any of the contracts entered
into by the Company, Skis Rossignol or their respective Subsidiaries.
6.5 MANAGEMENT OF THE COMPANY AND ITS SUBSIDIARIES BEFORE THE FIRST CLOSING DATE
The Company, Skis Rossignol, and their Subsidiaries have not undertaken any of
the actions listed in Article 5.1(b) during the sixty days preceding the First
Closing Date.
6.6 MEMBERS OF SKIS ROSSIGNOL'S MANAGEMENT BOARD
Exhibit 6.6 sets forth all employment agreements entered into by members of Skis
Rossignol's management board with Pilot Expansion, the Company, SDIF, Skis
Rossignol and/or its Subsidiaries, as well as all other documents pertaining to
the conditions under which such officers perform their duties. Except for these
agreements and documents, there is no written or oral agreement between the
members of the management board, on the one hand, and Pilot Expansion, the
Company, SDIF, Skis Rossignol and/or its Subsidiaries, on the other hand.
ARTICLE 7 - INDEMNIFICATION
7.1 CAUSES OF ACTION
The Sellers jointly and severally undertake, for themselves and on behalf of
their authorized successors and assigns, to indemnify the Purchaser, the Company
or Skis Rossignol (at the Purchaser's discretion) against any damages (including
reasonable attorney's fees) resulting from any inaccuracy or omission made in
any of the representations and warranties contained in Article 6 of this
Agreement.
7.2 TERM
The Sellers shall only be liable pursuant to Article 7.1 above, for the
consequences of facts or events that will be notified to them within three (3)
years following the First Closing Date.
7.3 PROCEDURE
(a) The Purchaser shall inform the Sellers of the existence of any fact or event
giving rise to indemnification under this Agreement within thirty (30) days
after the date on which the Purchaser becomes aware of said facts or events,
provided that failure to give timely notice shall only reduce Sellers'
indemnification obligation to the extent that additional damages have resulted
from such failure.
(b) In the event that a notice from the Purchaser, dealing with the Sellers'
indemnification obligation under Article 7.1 stems from a written claim by a
third party or proceedings instituted by a third party against the Purchaser,
the Company, Skis Rossignol, or any one of their Subsidiaries, the Purchaser
shall consult with the Sellers regarding the procedure to follow and the
appropriate means of defense and shall keep them informed of the status of the
proceeding. The Purchaser will make available to the Sellers all documents and
information which are reasonably required for purposes of a good faith
discussion between the Parties regarding the reasons for the claim or the
proceeding in question and the best means to handle it. The Sellers will offer
to assist the Purchaser in his defense, and they will advance the fees,
expenses, and attorney's fees borne by the Purchaser or its Subsidiaries in
connection with the defense of the claim, provided that such advances shall be
refunded to the Sellers by the Purchaser if the third party claim or proceeding
finally involves no indemnification obligation for the Sellers, and provided,
further, that the attorney shall be selected by the Sellers with the consent of
the Purchaser (which consent shall not be unreasonably withheld or delayed). If
necessary, the Sellers may join the case and participate directly in the
proceeding.
(c) The Purchaser, for itself and on behalf of the Company and Skis Rossignol,
shall not settle on matters likely to involve Sellers' liability under Article
7.1, without having previously requested and obtained permission from the
Sellers' Representative. Said permission shall be deemed received if the
Sellers' Representative does not express his opposition to the planned
settlement during thirty (30) days after being notified of the Purchaser's
intention to settle. In addition, in the event of an emergency, the Purchaser,
the Company and Skis Rossignol may make any decisions and take all necessary
steps, so long as these are not reasonably likely to increase Sellers'
indemnification obligation pursuant to Article 7.1.
7.4 PAYMENT
Payment of all sums definitively owed by the Sellers pursuant to Article 7.1
shall be executed by means of a cash payment by the Sellers to the Purchaser no
later than five (5) calendar days after the payment request has been made. If no
payment is executed within this period, these sums will bear interest at EURIBOR
plus 0.75%, provided that the provision for such interest rate does not, and
shall not allow deferred payment.
ARTICLE 8 - MISCELLANEOUS PROVISIONS
8.1 FEES AND EXPENSES
Unless otherwise agreed, each of the Parties shall bear the expenses and fees
incurred by it or for it in relation to this Agreement and the transactions
contemplated herein, including the professional fees of its advisors and
brokers.
8.2 NOTICES
(a) Any notices or communications pursuant to this Agreement shall be made by
fax or by registered mail with return receipt requested or by an express courier
service and must be addressed to the persons and addresses indicated below, or
to any other address or fax number indicated in writing, in the same manner, by
one Party to the other:
To the Purchaser:
Quiksilver, Inc.
15202 Graham Street Huntington Beach,
California (United States of America)
Fax: +1.714.889.4250
To the attention of: Mr. Charlie Exon
With a copy to:
Maitre Pierre Servan-Schreiber
Avocat a la Cour
Skadden, Arps, Slate, Meagher & Flom LLP
68, rue du Faubourg Saint-Honore
75008 Paris, France
Fax: +33.1.55.27.11.99
To the Sellers:
Mr. Laurent Boix-Vives
1, Boulevard du Marechal Joffre,
38000 Grenoble
Fax: +33.4.76.47.73.31
With a copy to:
Maitre Jean-Philippe Delsol
Avocat a la Cour
Delsol et Associes
12, quai Andre Lassagne
69001 Lyon
Fax: +33.4.72.10.20.31
(b) The date of receipt of the notice shall be deemed to be the date when the
fax or registered letter is received or the delivery date by express courier, as
attested by the relevant delivery form, provided that if the receipt of a notice
takes place on a day that is not a US Business Day (when this pertains to a
notice addressed to the Purchaser) or a French Business Day (when this pertains
to a notice addressed to the Sellers) or takes place outside normal office hours
in the United States or in France, as applicable, then such notice shall be
deemed to have been received on the opening date and time immediately following
receipt of the correspondence. However, Purchaser's notice to the Sellers of the
Date of the Transfer of the Remaining Skis Rossignol Shares pursuant to Article
2.6(a) may be validly made by telephone or by any other means set forth in
paragraph (a) above, at any time and even on a non-Business Day, provided that
it shall be followed by a notice of confirmation sent to the Sellers in the
manner set forth in this Article. Any correspondence addressed to the Sellers at
the address or fax number hereinabove shall be deemed simultaneously received by
each of the Sellers, and the Sellers shall have no recourse against the
Purchaser for sending notices solely to Sellers' Representative.
8.3 SELLERS' REPRESENTATIVE
(a) The Sellers hereby appoint Mr. Laurent Boix-Vives (the "SELLERS'
REPRESENTATIVE") as their representative, and give him all powers, to keep the
original version of this Agreement and the Ancillary Agreements, to receive any
notice hereunder and thereunder, to take any necessary measures in the name of
and on behalf of the Sellers in connection with the execution of this Agreement
and the performance and completion of all of the transactions contemplated
herein and, if necessary, to modify this Agreement and waive any and all
rights under this Agreement. The Purchaser may rely on any action undertaken by
the Sellers' Representative on behalf of the Sellers; it will not entail any
correspondence or notice delivered in connection with this Agreement by any
Seller other than the Sellers' Representative (except as provided in paragraph
(b) below). The representations made, the agreements concluded, and the actions
undertaken by the Sellers' Representative pursuant to this clause shall have
binding force against each of the Sellers, who shall be jointly and severally
liable for any damage caused to the Purchaser for this reason and who shall
assume responsibility for any gain or loss in this regard.
(b) Should Mr. Laurent Boix-Vives be impeded from acting as Sellers'
Representative for any reason whatsoever, the Sellers hereby appoint Ms.
Jeannine Boix-Vives as the replacement for Sellers' Representative. The
appointment of Ms. Jeannine Boix-Vives as the Sellers' Representative shall
become effective as of the date on which the Purchaser is notified of such
appointment by Ms. Jeannine Boix-Vives in the manner set forth in Article 8.2.
Subsequently, should Ms. Jeannine Boix-Vives be impeded from acting for any
reason whatsoever, the Sellers hereby appoint SDI as the Sellers' Representative
(or, should SDI have been dissolved by that
date, Ms. Christine Simon shall be appointed -- and, if Ms. Christine Simon is
impeded, Ms. Sylvie Bernard shall be appointed). The appointment of SDI, of Ms.
Christine Simon, or of Ms. Sylvie Bernard as the Sellers' Representative shall
become effective as of the date on which the Purchaser is notified of such
appointment by SDI's legal representative, by Ms. Christine Simon or by Ms.
Sylvie Bernard, respectively, in each case in the manner set forth in Article
8.2 (provided that, if SDI should issue several contradictory notices in such a
context, only the first notice shall be valid).
8.4 TRANSFER
(a) No Party may assign or transfer, in any way whatsoever, its rights and
obligations under this Agreement without the prior written consent from the
Sellers' Representative (when this pertains to a transfer by the Purchaser) or
from the Purchaser (when this pertains to a transfer by any of the Sellers).
(b) This clause does not prohibit the assignment or transfer of rights and
obligations by any of the Parties to the Ancillary Agreements, provided that the
relevant Ancillary Agreement shall expressly authorize such an assignment or
transfer.
8.5 SUCCESSORS AND BENEFICIARIES
Any and all rights and obligations pursuant to this Agreement are actively and
passively, jointly and severally binding on the Parties' successors, heirs,
beneficiaries, and legal representatives, provided that this Agreement and the
Ancillary Agreements are concluded in consideration of the person of the Sellers
and, consequently, the rights conferred to the Sellers by this Agreement and the
Ancillary Agreements shall not be assigned, transferred or conveyed in any
manner whatsoever, except to another Seller.
8.6 SEVERABILITY
If any of the provisions of this Agreement becomes null, illegal, unenforceable,
or incapable of being performed in any manner whatsoever (hereinafter "DISPUTED
PROVISIONS"):
(a) the validity and enforceability of the other provisions shall not be
affected or compromised in any way; and
(b) the Parties shall negotiate in good faith in order to replace the Disputed
Provisions with valid and enforceable provisions that are as close as possible
to the Parties' common intent or, if such common intent cannot be determined,
the intent of those among the Parties which the Disputed Provision is supposed
to protect.
8.7 ENTIRETY OF THE AGREEMENT
This Agreement sets forth the entire agreement between the Parties with respect
to the subject matters hereof. It replaces and supersedes any prior agreement,
correspondence or e-mail correspondence between the arties with respect hereto.
8.8 PILOT EXPANSION DEED OF PURCHASE
For registration purposes, the Parties agree to enter into the Pilot Expansion
Deed of Purchase set forth in Exhibit 8.8, which shall be delivered by the
Sellers to the Purchaser on the First Closing Date pursuant to Article 3.2(a).
For the avoidance of doubt, the Pilot Expansion Deed of Purchase is signed
merely for the purposes of registering the assignment of the Pilot Expansion
Shares; the transfer of the Pilot Expansion Shares to the Purchaser shall be
valid in accordance with this Agreement irrespective of the signing of the Pilot
Expansion Deed of Purchase.
8.9 MODIFICATIONS AND WAIVERS
(a) This Agreement shall only be modified by a written agreement duly signed by
the Purchaser and the Sellers' Representative.
(b) Any waiver by a Party to one of its rights pursuant to this Agreement shall
only take effect if it was made in writing, and shall be strictly interpreted.
(c) No waiver of any one of the provisions of this agreement shall constitute a
waiver of any other provision of this Agreement other than the provision which
was waived.
8.10 APPLICABLE LAW - COMPETENT COURT
(a) This Agreement and its interpretation are exclusively governed by French
law.
(b) Any dispute arising in connection with this Agreement, including the
validity, the interpretation and the performance hereof, and which cannot be
resolved amicably, shall fall under the exclusive jurisdiction of the courts
within the jurisdiction of the Paris Court of Appeals.
Signed in Lyon, on April 12, 2005,
in five (5) copies.
- -------------------------------
FOR QUIKSILVER:
by Mr. Bernard Mariette
- -------------------------------
FOR SDI SOCIETE DE SERVICES ET
DEVELOPPEMENT:
by Mr. Laurent Boix-Vives
- -------------------------------
MR. LAURENT BOIX-VIVES
- -------------------------------
MS. JEANNINE BOIX-VIVES
- -------------------------------
MS. CHRISTINE SIMON
- -------------------------------
MS. SYLVIE BERNARD
LIST OF EXHIBITS
Exhibit 2.3(b) Escrow Agreement
Exhibit 2.4 Shareholders' Agreement Ski Expansion SCA (Holding Company
Shareholder Agreement)
Exhibit 2.5 Minority Holdings Purchase Agreement
Exhibit 2.6 Purchase Agreement for the Residual Skis Rossignol
Shares
Exhibit 2.7 Roger Cleveland Shareholders' Agreement
Exhibit 3.1(c) Allocation of transferred shares among the Sellers
Exhibit 3.2(a) Documents to be provided by the Sellers on the
First Closing Date
Exhibit 3.2(b) Unlimited Partners Withdrawal Agreement
Exhibit 3.3(d) Documents to be provided by the Sellers on the
Second Closing Date
Exhibit 5.1(b) Actions planned for the Interim Period
Exhibit 6.2(a) Pilot Expansion's assets and liabilities
Exhibit 6.2(b) The Company and SDIF's assets and liabilities
Exhibit 6.2(d) Shareholders of Skis Rossignol's subsidiaries and
of the Company
Exhibit 6.6 Agreements entered into with the members of the
management board of Skis Rossignol
Exhibit 8.8 Pilot Expansion Purchase Agreement
Exhibit 2.3(b)
ESCROW AGREEMENT
BETWEEN THE UNDERSIGNED:
MR. LAURENT BOIX-VIVES, born August 30, 1926 at Brides les Bains (73570),
residing at 1 Boulevard du Marechal Joffre, 38000 Grenoble,
MS. JEANNINE BOIX-VIVES, born on December 25, 1927 in Montbonnot (38330),
residing at 1 Boulevard du Marechal Joffre, 38000 Grenoble,
MS. CHRISTINE SIMON, born January 23, 1964 in Grenoble, residing at 1 Boulevard
du Marechal Joffre, 38000 Grenoble,
MS. SYLVIE BERNARD, born January 23, 1964 in Grenoble, residing at 1 Boulevard
du Marechal Joffre, 38000 Grenoble.
SDI SOCIETE DE SERVICE ET DEVELOPPEMENT, a Swiss societe anonyme (corporation)
with share capital of CHF 500,000, with its registered offices at 120 chemin de
la Rueyre, 1020, Renens, Switzerland ("SDI"), represented by Mr. Laurent
Boix-Vives, acting as President (Chairman and CEO),
acting jointly and severally for the purposes of this Agreement,
(hereinafter referred to jointly as
the "SELLERS" and individually as a "SELLER")
PARTIES OF THE FIRST PART
AND
QUIKSILVER, INC., a Delaware corporation, with its registered offices at 15202
Graham Street Huntington Beach, California, United States of America,
represented by Mr. Bernard Mariette, acting as President,
(hereinafter referred to as "QUIKSILVER",
or the "ACQUIRER")
PARTY OF THE SECOND PART
AND
SOCIETE GENERALE, a societe anonyme (corporation) with capital of 537,712,831.25
euros, having its registered offices at 29 boulevard Haussmann 75009 Paris,
represented by Mrs. Helene Vende Bodin, Assistant Director of the Financing
Department, Private Management, France,
1
(hereinafter referred to as the "SOCIETE GENERALE"
or the "ESCROW AGENT")
PARTY OF THE THIRD PART
(each of the Sellers, the Acquirer and the Escrow Agent being hereinafter
individually referred to as a "PARTY" and collectively as the "PARTIES").
WHEREAS:
A. Pursuant to an acquisition agreement dated the date hereof (the
"ACQUISITION AGREEMENT"), the Sellers agreed to transfer to the
Acquirer, and the Acquirer agreed to purchase, the Sellers' direct and
indirect participation in Skis Rossignol SA, a societe anonyme with
share capital of EUR 49,792,256, with its registered offices at "Le
Menon", Voiron (38500), registered with the Grenoble Registry of
Commerce and Companies under number 056 502 958 and whose shares are
listed on the Eurolist of Euronext Paris under Euroclear France code
12041 ("SKIS ROSSIGNOL"), representing 44.46% of the capital and 58.67%
of the voting rights of Skis Rossignol (the "ACQUISITION").
B. Pursuant to the Acquisition Agreement, the Sellers have agreed in
particular to transfer to the Acquirer, on the Second Closing Date,
361,989 ordinary shares of Ski Expansion SCA (the "CONTROLLING
INTEREST"), a societe en commandite par actions with share capital of
EUR 8,096,624, with its registered office at "Le Menon", Voiron
(38500), registered with the Grenoble Registry of Commerce and
Companies under number 070 501 374 (the "COMPANY").
C. The Acquirer and the Sellers wish to place under escrow, until the
Second Closing Date, the Controlling Interest, as well as a part of the
transfer price of the Controlling Interest.
D. This Agreement sets forth the conditions and terms of such escrow.
NOW THEREFORE, THE PARTIES HAVE AGREED AS FOLLOWS:
ARTICLE 1 - DEFINITIONS
"ACQUISITION AGREEMENT" has the meaning given to it in the Preamble to this
Agreement.
"ACQUISITION" has the meaning given to it in the Preamble to this Agreement.
2
"ANTITRUST REGULATIONS" means all antitrust laws and regulations, applicable in
France and abroad, with the purpose or the effect of regulating the mergers of
companies or in more general terms free competition, including Articles L. 430-1
and following of the French Commercial Code and Decree n degrees 2002-689 of
April 30, 2002, Council Regulation n degrees 4064/89 of December 21, 1989
relating to the control of mergers between companies, as modified, as well as
the United States Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended.
"COMPANY" has the meaning given to it in the Preamble of this Agreement.
"CONTROLLING INTEREST" has the meaning given to it in the Preamble to this
Agreement.
"ESCROWED AMOUNT" has the meaning given to it in Article 2.2.
"ESCROWED ASSETS" has the meaning given to it in Article 3.1.
"NOTIFICATION OF FORGOING THE ACQUISITION" has the meaning given to it in
Article 3.4.
"NOTIFICATION OF RELEASE OF THE ESCROWED ASSETS" has the meaning given to it in
Article 3.1.
"PREAMBLE" designates (i) the introductory paragraphs A, B, C, and D of this
Agreement and (ii) the designation of the Parties set forth at the head of this
Agreement.
"SECOND CLOSING DATE" has the meaning given to it in Article 3.1.
"SELLERS' REPRESENTATIVE" has the meaning given to it in Article 4.5.
"SKIS ROSSIGNOL" has the meaning given to it in the Preamble of this Agreement.
ARTICLE 2 - ESTABLISHMENT OF THE ESCROW AGENT
2.1 DESIGNATION OF THE ESCROW AGENT
The Sellers and the Acquirer declare in joint agreement that they are
establishing Societe Generale in the position of escrow agent of the Controlling
Interest and of the Escrowed Amount, which declares that it accepts this
assignment and has all of the authority for such purpose.
2.2 ESCROW OF THE ESCROWED AMOUNT
The Acquirer has credited by wire transfer on the date of this Agreement, the
amount of 39,355,444 euros (the "ESCROWED AMOUNT") in the account opened in the
name of the Acquirer and the Sellers in the books of the Escrow Agent and
entitled Boix-Vives/Quiksilver, under number 30003 03000 00050240105 Rib key 85.
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2.3 ESCROW OF THE CONTROLLING INTEREST
(a) The Sellers have placed the Controlling Interest with the Escrow Agent,
by (i) delivery to the Escrow Agent of the individual shareholders'
forms and the register of the movements of the Company's securities as
of the date hereof and (ii) by delivery to the Escrow Agent of an order
of transfer of shares constituting the Controlling Interest to the
Boix-Vives Escrow account as number 30003 03000 00080240105 and CERFA
forms duly completed and executed in relation to the transfer of the
Controlling Interest to the Acquirer.
The Sellers also hereby request from the Escrow Agent the conversion of
the shares constituting the Controlling Interest, from purely
registered (nominatif pur) to administered registered (nominatif
administre), at the price of EUR 181.2035 per share on the Escrow
account Boix-Vives/Quiksilver no. 30003 03000 0080240105.
(b) As Escrow Agent of the Controlling Interest, Societe Generale will not
conduct during the duration of its assignment any action of disposal
relating to the shares of the Company in respect to anyone and for any
cause whatsoever. It is the intention of the Sellers and the Acquirer
to avoid an annual meeting of the Company from being held during the
period of this Agreement; if, however, such a meeting were to be held,
and if the Escrow Agent were to receive a notification in that respect,
the Escrow Agent would not participate in the meeting unless
instructions were given to it jointly by the Sellers and the Acquirer,
and it would not give power of attorney in order to represent it or
would not vote except in the way authorized on joint instruction of the
Sellers and the Acquirer.
2.4 Payment of the Escrow Agent for its assignment:
The Escrow Agent will receive for this operation a flat commission of EUR 3,000,
which will, in preference, be paid from the Escrowed Amount on the day of
signature of this Agreement and later deducted on the gains and interest of the
escrow account owed to the Acquirer.
ARTICLE 3 - RELEASE OF THE ESCROWED ASSETS
3.1 SECOND CLOSING DATE
The release of the Escrowed Amount and the Controlling Interest (together the
"ESCROWED ASSETS"), which will bring the Escrow Agent's duties to an end, will
take place at the earlier of the following dates:
(a) the date of the settlement-delivery of the Skis Rossignol shares
acquired by the Acquirer in the context of its cash tender offer on the
Skis Rossignol shares (not including the shares that may be acquired by
the Acquirer in connection with the
4
reopening of the cash tender offer in accordance with Article 232-4 of
the General Regulation of the French Autorite des marches financiers,
which would be subject to a subsequent settlement-delivery);
(b) July 19, 2005, if the authorizations necessary for the consummation of
the Acquisition pursuant to the Antitrust Regulations have been
obtained by that date;
(c) any date after July 19, 2005, on which the authorizations necessary for
the consummation of the Acquisition pursuant to the Antitrust
Regulations have been obtained; or
(d) any other date on which the Sellers and the Acquirer may give
instructions to the Escrow Agent, in writing, to release the Escrowed
Assets;
Provided that, in the cases described in (a), (b) and (c) above, the Sellers'
Representative or the Acquirer may have in advance submitted to the Escrow Agent
and to the other Party a written notification, duly signed, stating the date of
release of the Escrowed Assets (the "SECOND CLOSING DATE"), (i) together with
the notice of the result of the public tender offer referred to in (a) above, or
(ii) together with proof of having obtained the necessary authorizations for the
Acquisition referred to in (c) above, and in any event (iii) stating the amount
of the Controlling Interest Purchase Price Adjustment, as it is defined in the
Acquisition Agreement, if it must be deducted from the amount paid to the
Sellers at the Second Closing in accordance with the Acquisition Agreement (the
"NOTIFICATION OF RELEASE OF THE ESCROWED ASSETS").
As the necessary authorizations referred to in (c) above are obtained and there
is progress of the public tender offer referred to in (a) above, the Parties
agree to keep the Escrow Agent informed of the probable date of the release of
the Escrowed Assets.
3.2 RELEASE OF THE ESCROWED AMOUNT
(a) On the Second Closing Date, the Escrow Agent will pay to the Sellers,
by wire transfer on the account referred to in Exhibit 3.2(a) hereto,
an amount equal to the Escrowed Amount, reduced, if the Notification of
Release of the Escrowed Assets mentions an amount of Controlling
Interest Purchase Price Adjustment, of such amount of Controlling
Interest Purchase Price Adjustment.
(b) In case the Notification of Release of the Escrowed Assets should
mention an amount of Controlling Interest Purchase Price Adjustment,
the Escrow Agent will pay the Acquirer, by wire transfer on the account
referred to in Exhibit 3.2(b) hereto, an amount equal to the
Controlling Interest Purchase Price Adjustment.
3.3 RELEASE OF THE CONTROLLING INTEREST
On the Second Closing Date, the Escrow Agent will remit the Controlling Interest
to the Acquirer, by the delivery (i) of the shareholders' individual forms and
the register of the
5
orders of transfer of the Company's securities, (ii) an order of transfer duly
dated and signed by the Escrow Agent, bearing transfer to the Acquirer of the
shares that constitute the Controlling Interest, and all shares or all financial
instruments that have been added or substituted for them during the escrow
period, (iii) the CERFA forms provided to the Escrow Agent in accordance with
Article 2.3(a), (iv) all dividends or any other distributions paid for the
Controlling Interest and (v) all gains or interest produced by the Escrowed
Amount during the escrow period.
3.4 TERMINATION OF THE ACQUISITION
In the event that the Second Closing Date has not taken place by December 31,
2005, or in the event the Escrow Agent is informed by a notification executed by
the Sellers' Representative and by the Acquirer of the forgoing of the
Acquisition (the "NOTIFICATION OF FORGOING THE ACQUISITION"), the Escrow Agent
will (i) deliver the Controlling Interest to the Sellers, by delivery of the
shareholders' individual forms and of the register of transfer of the Company's
securities, as well as an order of transfer bearing transfer of the Controlling
Interest to the Sellers and other securities referred to in Article 3.3(ii)
above and (ii) deliver the Escrowed Amount to the Acquirer, increased by gains
or interest referred to in Article 3.3(iv) above.
ARTICLE 4 - MISCELLANEOUS PROVISIONS
4.1 DURATION
This Agreement will take effect on the date of signature of this Agreement. It
will end on the Release Date.
4.2 INVESTMENT OF THE ESCROWED AMOUNT
The Acquirer requests of the Escrow Agent, who accepts, that during the period
of its assignment, the Escrowed Amount will be devoted by it to the purchase of
monetary capitalization Sicavs. The interest or gains earned on these
investments will be paid to the Acquirer in accordance with Article 3 of this
Agreement.
4.3 LIABILITY OF THE ESCROW AGENT - AUTONOMY OF THIS AGREEMENT
(a) The Escrow Agent may not in any way be required to release the Escrowed
Assets if the Escrowed Assets are the subject of a garnishment (saisie
attribution) or preventive attachment (saisie conservatoire).
(b) The Escrow Agent will not have any liability or obligation other than
those expressly specified herein and the Sellers and the Acquirer agree
jointly and severally to compensate it for all claims, losses, costs
and damages resulting from a fault of the Escrow Agent. The Escrow
Agent is not bound by any of the agreements that are at the origin of
this Agreement, in particular the Acquisition Agreement.
6
(c) The Escrow Agent will not be required to proceed to the verification of
the authenticity of the documents transmitted to it in accordance with
this Agreement.
4.4 NOTIFICATIONS
Any notices or communications pursuant to this Agreement shall be made by fax or
by registered mail with return receipt requested or by an express courier
service and must be addressed to the persons and addresses indicated below, or
to any other address or fax number indicated in writing, in the same manner, by
one Party to the other:
To the Escrow Agent:
Societe Generale
29 Boulevard Haussmann
75002 Paris
Fax: 01.53.43.87.67
To the attention of: Ms. Helene Vende Bodin
To the Acquirer:
Quiksilver, Inc.
15202 Graham Street, Huntington Beach,
California (United States of America)
Fax: +1.714.889.4250
To the attention of: Mr. Charles Exon
With copy to:
Mr. Pierre Servan-Schreiber
Avocat a la Cour
Skadden, Arps, Slate, Meagher and Flom LLP
68 rue du Faubourg St. Honore
75008 Paris, France
Fax: +33.1.55.27.11.99
To the Sellers:
Mr. Laurent Boix-Vives
1 Boulevard du Marechal Joffre
38000 Grenoble
Fax: +33.4.76.47.73.31
With copy to:
Mr. Jean-Philippe Delsol
7
Avocat a la Cour
Delsol et Associes
12 quai Andre Lassagne
69001 Lyon
Fax: +33.4.72.10.20.31
4.5 SELLERS' REPRESENTATIVE
(a) The Sellers hereby appoint Mr. Laurent Boix-Vives (the "SELLERS'
REPRESENTATIVE") to receive any notice, to take any necessary measures
in the name of and on behalf of the Sellers in connection with the
execution of this Agreement and the performance and completion of all
of the transactions contemplated herein and, if necessary, to modify
this Agreement and waiving any and all rights under this Agreement. The
Acquirer and the Escrow Agent may rely on any action undertaken by the
Sellers' Representative (except in accordance with paragraph (b)
below). The representations made, the agreements entered into and the
actions undertaken by the Sellers' representative pursuant to this
clause will be binding and enforceable against each of the Sellers.
(b) Should Mr. Laurent Boix-Vives be impeded from acting as Sellers'
Representative for any reason whatsoever, the Sellers hereby appoint
Ms. Jeannine Boix-Vives as the replacement for Sellers' Representative.
The appointment of Ms. Jeannine Boix-Vives as the Sellers'
Representative shall become effective as of the date on which the
Acquirer is notified of such appointment by Ms. Jeannine Boix-Vives in
the manner set forth in Article 4.4. Subsequently, should Ms. Jeannine
Boix-Vives be impeded from acting for any reason whatsoever, the
Sellers hereby appoint SDI as the Sellers' Representative (or, should
SDI have been dissolved by that date, Ms. Christine Simon shall be
appointed -- and, if Ms. Christine Simon is impeded, Ms. Sylvie Bernard
shall be appointed). The appointment of SDI, of Ms. Christine Simon, or
of Ms. Sylvie Bernard as the Sellers' Representative shall become
effective as of the date on which the Acquirer is notified of such
appointment by SDI's legal representative, by Ms. Christine Simon or by
Ms. Sylvie Bernard, respectively, in each case in the manner set forth
in Article 4.4 (provided that, should SDI issue several contradictory
notices in such a context, only the first notice shall be valid).
4.6 TRANSFER
No Party can sell or transfer its rights and obligations in any way whatsoever
by the terms of this Agreement without the prior written consent of the other
Parties.
4.7 SUCCESSORS AND BENEFICIARIES
Any and all rights and obligations pursuant to this Agreement are actively and
passively, jointly and severally binding on the Parties' successors, heirs,
beneficiaries, and legal representatives, provided that this Agreement is
concluded in consideration of the person of the Sellers and, consequently, the
rights conferred to the Sellers by this Agreement
8
shall not be assigned, transferred or conveyed in any manner whatsoever, except
to another Seller.
4.8 DIVISIBILITY
If any of the provisions of this Agreement should become null, illegal, not
binding or incapable of being performed in any manner whatsoever (hereafter
"DISPUTED PROVISIONS"):
(a) the validity and enforceability of the other provisions shall not be
affected or compromised in any way; and
(b) the Parties shall negotiate in good faith in order to replace the
Disputed Provisions with valid and enforceable provisions that are as
close as possible to the Parties' common intent or, if such common
intent cannot be determined, the intent of those among the Parties
which the Disputed Provision was designed to protect.
4.9 AMENDMENTS AND WAIVERS
(a) This Agreement shall only be amended by a written agreement duly signed
by the Acquirer and the Sellers' Representative.
(b) Any waiver by a Party to one of its rights pursuant to this Agreement
shall only take effect if it was made in writing, and shall be strictly
interpreted.
(c) No waiver of any one of the provisions of this agreement shall
constitute a waiver of any other provision of this Agreement other than
the provision which was waived.
4.10 APPLICABLE LAW - JURISDICTION
(a) This Agreement and its interpretation are exclusively governed by
French law.
(b) Any dispute arising in connection with this Agreement, including the
validity, the interpretation and the performance hereof, and which
cannot be resolved amicably, shall fall under the exclusive
jurisdiction of the courts within the jurisdiction of the Paris Court
of Appeals.
9
Executed in Paris, on April 12, 2005
In nine (9) copies
- -------------------------------
FOR SOCIETE GENERALE:
by Mrs. Helene Vende Bodin
- -------------------------------
FOR QUIKSILVER, INC.
by Mr. Bernard Mariette
- ------------------------------
FOR SDI SOCIETE DE SERVICES
ET DEVELOPPEMENT
by Mr. Laurent Boix-Vives
- -------------------------------
MR. LAURENT BOIX-VIVES
- -------------------------------
MS. JEANNINE BOIX-VIVES
- -------------------------------
MS. CHRISTINE SIMON
- -------------------------------
MS. SYLVIE BERNARD
10
EXHIBIT 2.4
SHAREHOLDERS' AGREEMENT
SKI EXPANSION SCA
BETWEEN THE UNDERSIGNED:
MR. LAURENT BOIX-VIVES, born on August 30, 1926 in Brides les Bains (73570),
residing at 1, Boulevard du Marechal Joffre, 38000 Grenoble, France,
MS. JEANNINE BOIX-VIVES, born on December 25, 1927 in Montbonnot (38330),
residing at 1, Boulevard du Marechal Joffre, 38000 Grenoble, France,
MS. CHRISTINE SIMON, born on January 23, 1964 in Grenoble, residing at 1,
Boulevard du Marechal Joffre, 38000 Grenoble, France,
MS. SYLVIE BERNARD, born on January 23, 1964 in Grenoble, residing at 1,
Boulevard du Marechal Joffre, 38000 Grenoble, France,
acting jointly and severally for the purposes of this Agreement,
(hereinafter referred to as the "FAMILY GROUP" and
individually as a "MEMBER OF THE FAMILY GROUP")
PARTY OF THE
FIRST PART,
AND
QUIKSILVER, INC., a Delaware corporation, with its registered offices at 15202
Graham Street Huntington Beach, California, United States of America,
represented by Mr. Bernard Mariette, acting in the capacity of President,
(hereinafter referred to as "QUIKSILVER" and, together with
the Members of the Family Group, the "SHAREHOLDERS" and each a "SHAREHOLDER"),
PARTY OF THE
SECOND PART,
IN THE PRESENCE OF:
SKI EXPANSION, a societe en commandite par actions (partnership limited by
shares), with share capital of EUR 8,096,624 , having its registered office at
the place called "Le Menon", Voiron (38500), France, registered with the
Registry of Commerce and Companies of Grenoble under number 070 501 374,
represented by Mr. Laurent Boix-Vives in his capacity as Manager,
(hereinafter referred to as the "COMPANY")
(each of the Members of the Family Group, Quiksilver and the Company being
hereinafter referred to as a "PARTY" and collectively as the "PARTIES").
WHEREAS:
A. Pursuant to an acquisition agreement dated as of the date hereof (the
"ACQUISITION AGREEMENT"), Quiksilver and the Family Group have agreed to
the sale by the Family Group to Quiksilver of its direct and indirect
interest in Skis Rossignol SA, a societe anonyme (corporation) with share
capital of EUR 49,792,256, , with registered offices located at the place
called "Le Menon", Voiron (38500), France, registered with the Registry of
Commerce and Companies of Grenoble under number 056 502 958 and the shares
of which are listed on Eurolist of Euronext Paris under Euroclear France
code 12041 ("SKIS ROSSIGNOL").
B. The Purchaser has agreed to acquire, on the Second Closing Date, pursuant
to the Acquisition Agreement, common shares in the Company, representing
75% of the Company's capital, i.e. all the common shares issued by it.
C. After the Second Closing Date, the Family Group intends to keep the
remaining preferred shares representing 25% of the Company's capital, until
either of the Parties exercises the call and put options granted under this
Agreement.
D. Quiksilver and the Family Group therefore wish to agree on certain rules
relating to the Company's administration, and to create between them
certain rights and obligations regarding the assignment of their securities
in the Company, according to the terms defined in this Agreement.
NOW THEREFORE, THE PARTIES HAVE AGREED AS FOLLOWS:
ARTICLE 1 - DEFINITIONS
"AGREEMENT" means this Shareholders' Agreement.
"BUSINESS DAY" means, with respect to France or the United States, any day other
than a Saturday, a Sunday or a day on which commercial banks or regulated
markets are closed for business during the entire day in Paris or New York,
respectively, it being specified that references herein to a "Business Day"
without reference to France or the United States shall be references to days
which are both French Business Days and US Business Days.
"CALL OPTION" has the meaning given to it under Article 5.3(a).
"COMPANY" has the meaning given to it in the Preamble.
"DISPUTED PROVISIONS" has the meaning given to it under Article 7.9.
2
"ESTIMATED PRICE OF THE CONTROLLING INTEREST" means the price per share of the
Controlling Interest estimated by the Sellers pursuant to the Acquisition
Agreement, a price per share equal to 181.2035 euro.
"EURIBOR" means the rate equal to the interbank interest rate applicable to
three (3) month deposits in euros, as calculated by the Banking Federation of
the European Union and published for information purposes on the Euribor Page of
the Moneyline Telerate 248 screen (or any other page that is substituted
therefor, or in the lack thereof, on the equivalent pages of Reuters or
Bloomberg).
"EXERCISE PRICE OF THE CALL OPTION" means a price per Family Group Share equal
to (i) the Estimated Price of the Controlling Interest, minus the total amount
per share of the Family Group's quota in the dividends and distributions of any
kind (including but not limited to the amounts received as a result of any
decision to amortize, redeem or reduce the Company's share capital) decided in
favor of the Family Group from the date of this Agreement until the date of the
transfer pursuant to the Put Option or the Call Option, whichever is applicable,
(ii) plus annual interest equal to EURIBOR plus 2.35%, counted down from the
signature date of this Agreement until the date of the Notice of Put or the
Notice of Call, whichever is applicable.
"EXERCISE PRICE OF THE PUT OPTION" means a price per Family Group share equal to
the Exercise Price of the Call Option, plus five percent (5%).
"EXISTING FAMILY GROUP SHARES" has the meaning given to it under Article 2.1(a).
"EXISTING QUIKSILVER SHARES" has the meaning given to it under Article 2.1(a).
"FAMILY GROUP SHARES" has the meaning given to it under Article 2.1(c).
"KNOWLEDGE OF THE FAMILY GROUP" means, with respect to any fact or event, the
knowledge of such fact or event by any of the Members of the Family Group.
"LIEN" means any encumbrance, charge, lien, security interest or other
restriction, limitation or third party right whatsoever.
"NEW FAMILY GROUP SHARES" has the meaning given to it under Article 2.1(c).
"NEW QUIKSILVER SHARES" has the meaning given to it under Article 2.1(c).
"NOTICE OF CALL" has the meaning given to it under Article 5.3(d).
"NOTICE OF PUT" has the meaning given to it under Article 5.2(d).
"PLEDGE OF QUIKSILVER SHARES" has the meaning given to it under Article 7.2(a).
"PLEDGE OF THE FAMILY GROUP SHARES" has the meaning given to it under Article
7.2(a).
"PLEDGES" has the meaning given to it under Article 7.2(a) of this Agreement.
3
"PREAMBLE" means (i) introductory paragraphs A, B, C and D of this Agreement and
(ii) the designation of the Parties set forth at the top of this Agreement.
"PUT OPTION" has the meaning given to it under Article 5.2(a).
"QUIKSILVER SHARES" has the meaning given to it under Article 2.1(c).
"SECOND CLOSING DATE" means either (i) the Settlement-Delivery Date, or (ii) if
the Settlement-Delivery Date has not occurred before July 19, 2005, July 19,
2005 (provided that in the event that the authorizations necessary for the
Purchase under the Antitrust Regulations, as defined in the Acquisition
Agreement, have not been obtained on or prior to that date, the Second Closing
Date will be the date on which these authorizations are obtained).
"SETTLEMENT-DELIVERY DATE" means the date of the settlement and delivery of the
shares of Skis Rossignol acquired by Quiksilver in the tender offer initiated by
Quiksilver for the shares of Skis Rossignol pursuant to Article 2.2 of the
Acquisition Agreement (not including the shares that may be acquired by
Quiksilver in connection with the reopening of the tender offer in accordance
with Article 232-4 of the General Regulation of the French Autorite des marches
financiers, and which will be the subject of a subsequent settlement-delivery).
"SKIS ROSSIGNOL" has the meaning given to it in the Preamble.
"SUBSIDIARY" means, with regard to any legal person, any person or entity
controlled by that legal person according to the meaning provided by Article L.
233-3 of the French Commercial Code, including any joint-venture company
(societe en participation), economic interest groupings (groupements d'interet
economiques) or partnership of which that legal person is a member, provided
that Article L. 233-3 of the French Commercial Code shall be interpreted to
include, mutatis mutandis, entities that are not commercial companies (for
example, non-commercial entities, economic interest groupings or associations).
"TAX TREATY" means the Convention Between the Government of the United States of
America and the Government of the French Republic for the Avoidance of Double
Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income
and Capital, and any Protocols thereto, as amended or supplemented from time to
time, and any successor thereto.
"TRANSACTION DOCUMENTS" means this Agreement, the Acquisition Agreement, and to
the extent they relate to the Family Group Shares, the bylaws of the Company.
"TRANSFER" means any transaction involving a transfer of ownership, including,
without limitation, (i) sales and transfers (with or without consideration,
inter vivos or mortis causa), including any transfer by means of an adjudication
or by virtue of a judgment, (ii) transfers for the payment of goods or services
(dation en paiement), or by means of an exchange, partition, division, loan
(including specifically any loan of securities), sale with right of repurchase
(vente a remere), contribution, business contribution, liquidation, merger or
demerger, spin-off, split-off or any combination of these transactions, (iii)
transfers concerning ownership, usufruct or any other
4
subdivision of ownership rights or any other right concerning the object of the
transfer (and including, where applicable, any voting right or the right to
receive dividends), and to "TRANSFER" means the right to proceed with any of the
foregoing transactions, or to undertake to proceed with such a transaction.
ARTICLE 2 - MANAGEMENT OF THE COMPANY
2.1 CAPITAL TRANSACTIONS AND AMENDMENTS TO THE BYLAWS
(a) On the date of this Agreement, the Company validly adopted the bylaws set
forth in APPENDIX 2.1, so that the Family Group holds 144,050 preferred shares
of the Company, representing 28.46% of the Company's share capital (the "FAMILY
GROUP'S EXISTING SHARES") and 361,989 common shares of the Company, representing
71.53% of the Company's share capital, escrowed in accordance with the
Acquisition Agreement (the "EXISTING QUIKSILVER SHARES").
(b) Pursuant to Article 2.3 of the Acquisition Agreement, on the Second Closing
Date, Quiksilver will acquire Existing Quiksilver Shares.
(c) Pursuant to Article 2.8 of the Acquisition Agreement, on the Second Closing
Date the Company's share capital shall be increased, by way of the issuance of
78,637 newly issued shares for the benefit of the Family Group, comprising
76,518 common shares and 2,119 preferred shares. Immediately following this
capital increase (the "CAPITAL INCREASE"), the Family Group shall transfer to
Quiksilver, according to the terms and conditions defined in the Acquisition
Agreement, the ordinary shares issued by the Company as part of the Capital
Increase (the "NEW QUIKSILVER SHARES" and, together with the Existing Quiksilver
Shares, the "QUIKSILVER SHARES"), while the Family Group shall remain the owner
of the 2,119 newly-issued preferred shares (the "NEW FAMILY GROUP SHARES" and,
together with the Existing Family Group Shares, the "FAMILY GROUP SHARES"), so
that, upon the conclusion of these transactions, Quiksilver and the Family Group
will hold 75% and 25% respectively of the Company's capital.
(d) No later than December 31, 2005, the Parties shall arrange for the Company
to be converted into a societe par actions simplifiee (simplified joint-stock
company), and to adopt the bylaws set forth in APPENDIX 3.3; they agree to vote
in favor of the resolutions necessary to that effect.
2.2 MANAGEMENT OF THE COMPANY
The Family Group agrees, for the entire term of the Agreement, not to interfere
in the Company's management, other than for the purposes of exercising the
voting rights attached to the Family Group Shares, defined under Article 3,
which shall be exercised in compliance with the Company's bylaws and the
provisions of this Agreement.
2.3 SHAREHOLDERS' COVENANTS
5
(a) The Family Group agrees not to only use the voting rights attached to the
Family Group Shares under Article 3.3 in accordance with the interest of the
Company, and in prior consultation with Quiksilver; the Members of the Family
Group agree to cast their vote for draft resolutions or decisions supported by
Quiksilver, provided these drafts are not manifestly contrary to the Company's
interest. Except in the cases provided by the Company's bylaws, the Family Group
agrees not to proceed to any resolutions in its capacity as a shareholder of the
Company.
(b) If an increase in the Company's share capital is proposed to its
shareholders, and such a decision leads to a reduction in the Family Group's
share in the Company's capital and voting rights below a threshold of 25%, the
Family Group will not exercise the right of objection to the increase in capital
granted to it by the bylaws unless the increase in capital leads to prejudice
for the Family Group. The Family Group waives in advance its pre-emptive right
(droit preferentiel de souscription) to all shares issued by the Company; it
hereby transfers to Quiksilver, free of charge, any pre-emptive right to the
Company Shares that would be conferred on it by law and which it could not
validly waive under applicable laws and regulations. It agrees not to subscribe
to any capital increase or issuance of securities of any kind made by the
Company during the term of this Agreement.
(c) The Family Group agrees to consult with Quiksilver prior to exercising the
rights that are granted to it pursuant to Article L. 228-19 of the French
Commercial Code
(d) The Family Group, for information purposes, and in order to entitle it to
preserve the rights that result from its ownership of the Family Group Shares,
will be invited to attend general shareholders' meetings of the Company, and
will receive the documents sent by the Company to the Company's shareholders.
Subject to this provision, it undertakes not to request any document or any
information from the Company.
(e) Quiksilver agrees not to make any decision to modify the Company's bylaws
that is likely to adversely affect the voting rights or rights to profits
attached to the Family Group Shares without the prior and unanimous consent of
the holders of the Family Group Shares. Quiksilver warrants to the Members of
the Family Group that the right to profits granted to them by the bylaws shall
be fully respected.
ARTICLE 3 - RIGHTS ATTACHED TO THE FAMILY GROUP SHARES
3.1 The Existing Family Group Shares are, and the New Family Group Shares shall
be, preferred shares as defined in Article L. 228-11 of the French Commercial
Code. The New Family Group Shares shall be of the same category as the Existing
Family Group Shares, such that all Family Group Shares shall be fungible with
each other.
3.2 The Family Group Shares entitle the holders thereof (or will entitle the
holders thereof, in regard to the New Family Group Shares) to a share equal to
the proportion of capital they represent, in all dividends paid by the Company
(if any), and more generally in the Company's corporate assets, profits,
reserves and liquidating dividend.
3.3 Subject to the rights granted to the holders of Family Group Shares under
Article 2.3(d), the Family Group Shares do not and shall not give their holders
the
6
right to vote on decisions that are within the powers of a corporation's
shareholder meeting pursuant to Articles L. 225-96 to L. 225-125 of the French
Commercial Code, nor the right to attend the general meetings of the Company's
shareholders or partners, nor, more generally, the right to be informed of or to
be consulted on these decisions in any way whatsoever; provided, however, that
the holders of Family Group Shares shall be called to vote on the following
decisions, the approval of which will require the unanimous consent of the
holders of the Family Group Shares: (i) any change in the rights conferred on
the holders of the Family Group Shares by the bylaws of the Company (except for
any adjustments that may result from the Company's conversion into a simplified
joint-stock company and the corresponding statutory changes), (ii) any decision
entailing a reduction of their share in the Company's capital below 25%, (iii)
the transfer of the Company's main offices to a place that is not located within
the French Republic, and (iv) any decision entailing the dissolution or
liquidation of the Company (except for any decision on the merger or demerger,
spin-of or split-off of the Company, such decisions to fall within the exclusive
powers of the Company's holders of common shares). Finally, the holders of the
Family Group's shares will have the option to give one of the Company's auditors
the task of drawing up a special report on the Company's compliance with the
particular rights attached to their preferred shares.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF THE FAMILY GROUP
The Members of the Family Group represent and warrant the following to
Quiksilver:
(a) from the date of this Agreement until the Second Closing Date, the Members
of the Family Group together hold and will hold all of the rights conferring
full ownership (pleine propriete) over the Existing Family Group Shares and
Quiksilver's Existing Shares, free of any Liens, subject to Liens created by the
Acquisition Agreement; on the Second Closing Date, the Members of the Family
Group will together hold all the rights conferring full ownership over the
Family Group's New Shares, free of any Liens, subject to the Liens created by
the Acquisition Agreement.
(b) With the exception of the Existing Family Group Shares and the Existing
Quiksilver Shares, the Company has issued no share and no securities or other
rights representing, or giving access to the Company's capital or voting rights,
and except for the Acquisition Agreement, there is no contract or commitment in
view of the grant or the issue of any such securities or rights.
(c) The Members of the Family Group have all requisite power to enter into this
Agreement and carry out their obligations hereunder. This Agreement, the Pledges
and all documents relating hereto and thereto have been or shall be duly signed
by each of the Members of the Family Group, and they constitute valid and
enforceable obligations of each of them (or their successors and assigns
pursuant to Article 7.7 of this Agreement) in accordance with their terms, such
that (i) Quiksilver (or a company designated by Quiksilver for the purposes of
the Put Option or the Call Option pursuant to Articles 5.2, 5.3 or 7.7 of this
Agreement) shall, on the transfer date set out for the completion of the Put
Option or the Call Option, be the valid owner of the Family Group Shares, free
of any Liens, and (ii) the Family Group Shares shall on
7
that same date be validly transferred to Quiksilver (or to any company
designated by it) which will become the owner of them, and this transfer shall
be enforceable against third parties. Mr. Laurent Boix-Vives represents and
warrants personally to the Parties that he has been duly authorized by the
competent company bodies of the Company, which he represents, for the purposes
of signing this Agreement.
(d) The Members of the Family Group have obtained all consents and all
approvals, authorizations and waivers necessary to sign and fully perform their
obligations under this Agreement. No legal, arbitral or administrative action,
claim, lawsuit, or investigation likely to prevent the Members of the Family
Group from signing this Agreement or performing their obligations hereunder is
currently pending, and to the Knowledge of the Members of the Family Group, no
such action, claim, lawsuit or investigation is likely to be brought against any
Member of the Family Group. The signature of this Agreement and the performance
by the Members of the Family Group of their obligations hereunder (i) do not
conflict with or violate any of the bylaws of the Company; (ii) do not conflict
with or violate any legal or regulatory provision or any administrative, legal
or arbitral decision; (iii) do not conflict with or violate, or create any
rescission, termination or cancellation right under, any permits, approvals or
authorizations which are required for business purposes of the Company; and (iv)
do not conflict with or violate, or entitle a third party to any rights
(including any acceleration or early termination rights) under, any of the
contracts entered into by the Company.
(e) Set forth as Appendix 2.1 are true and correct copies of the Company's
updated bylaws, in effect as of the date of this Agreement. With the exception
of the legal provisions and statutory clauses that govern the respective powers
of the unlimited partners and limited partners in the Company, there is no
clause or provision which may prevent Quiksilver from fully enjoying the rights
conferred on it its capacity as owner of Existing Quiksilver Shares, whether in
the Company's bylaws, or in any contract or agreement entered into by the
Company, or under any obligation by which the Company is bound.
4.2 REPRESENTATIONS AND WARRANTIES OF QUIKSILVER
Quiksilver represents and warrants the following to the Members of the Family
Group, on the date of this Agreement:
(a) Quiksilver has all requisite power to enter into this Agreement and carry
out its obligations hereunder. This Agreement, the Pledges and all documents
relating hereto and thereto have been or shall be duly signed by Quiksilver, and
they constitute valid and enforceable obligations of Quiksilver in accordance
with their terms, such that the Put Option effectively entails, on the part of
Quiksilver, an obligation to buy (or to procure the purchase by an entity
designated by pursuant to Articles 5.2, 5.3 and/or 7.7) the Family Group Shares
from the Family Group pursuant to this Agreement. Mr. Bernard Mariette
represents and warrants personally to the Parties that he has been duly
authorized by the competent company bodies of Quiksilver, which he represents,
for the purposes of signing this Agreement.
(b) Quiksilver has obtained all consents and all approvals, authorizations and
waivers necessary to sign and fully perform its obligations under this
Agreement. No legal,
8
arbitral or administrative action, claim, lawsuit, or investigation likely to
prevent Quiksilver from signing the Agreement or performing its obligations
hereunder is currently pending, and to the Knowledge of Quiksilver, no action,
claim, lawsuit or investigation of this nature is likely to be brought against
Quiksilver. The signature of this Agreement and the performance by Quiksilver of
its obligations under this Agreement (i) do not conflict with or violate any of
the bylaws of Quiksilver; (ii) do not conflict with or violate any legal or
regulatory provision or any administrative, legal or arbitral decision; (iii) do
not conflict with or violate, or create any rescission, termination or
cancellation right under, any permits, approvals or authorizations which are
required for business purposes of Quiksilver; and (iv) do not conflict with or
violate, or entitle a third party to any rights (including any acceleration or
early termination rights) under, any of the contracts entered into by
Quiksilver.
ARTICLE 5 - TRANSFER OF THE FAMILY GROUP SHARES
5.1 PRINCIPLE
(a) The Family Group Shares may not be Transferred for a period of ten (10)
years after the date of this Agreement, except for (i) Transfer by inheritance
to a Member of the Family Group who is an individual, provided that the
Transferee shall assume all of the Transferor's obligations under this
Agreement, and (ii) Transfer in accordance with the Call Option or the Put
Option. Any Transfer made prior to such term in breach of this
non-transferability clause shall be null and void and shall be treated as such
by the Company. The Members of the Family Group undertake not to make any
conveyance inter vivos of the Family Group Shares free of charge (transmission a
titre gratuit), nor to bequest any of said Family Group Shares, except to other
Members of the Family Group.
(b) In consideration for the rights granted to the Family Group under this
Agreement, including pursuant to the Put Option, each Member of the Family Group
hereby assigns to Acquirer all present and future rights to receive cash or
other proceeds for the assignment of its Option Shares to a third party by any
means, including by contract or by operation of law. For the avoidance of doubt,
this provision does not apply to the Family Group's right to payment of the
price to be obtained pursuant to Article 5.2 or Article 5.3 below.
(c) The Members of the Family Group warrant to Quiksilver that the Family Group
Shares transferred in accordance with the Put Option or the Call Option shall
constitute all of their rights in the Company, as of the date of transfer. They
warrant and agree that the transfer price to be received by them pursuant to the
Call Option or the Put Option shall be paid in consideration for the full and
final transfer of all of such Family Group's rights. They waive, in advance, any
and all rights or claims which may result from their former capacity as
shareholder of the Company.
(d) As a penalty clause, any Transfer or attempted Transfer of Family Group
Shares made in breach of this Article shall entail payment by the Family Group
to Quicksilver of a penalty equal to three million euro (EUR 3,000,000), in
addition to (and not in replacement of) any damages payable to Quicksilver;
payment of this sum shall not confer any validity whatsoever on the Transfer or
the attempted Transfer.
9
(e) The Shareholders acknowledge and agree that the granting of damages would
not constitute appropriate remedy in the event of a breach by any of the
Shareholders of their obligations to deliver the Family Group Shares and to pay
the price therefore, respectively, under the Put Option or the Call Option set
forth in Articles 5.2 and 5.3 below; the Shareholders hereby agree that the
remedy of specific performance (execution forcee) shall apply in the event of
such a breach
5.2 PUT OPTION
(a) Quiksilver irrevocably promises to the Family Group that it shall buy, at
the Family Group's request, all of the Family Group Shares (the "PUT OPTION"),
in accordance with the terms defined in this Article 5.2.
(b) The Put Option thus granted may be exercised by the Family Group (i) in the
event of a continued failure by Quiksilver to perform any of its obligations
under this Agreement or the Pledge of Quiksilver Shares, and (ii) as of the
expiration date of a period of five (5) years and fifteen (15) days after the
date of this Agreement (the "PUT OPTION EXERCISE DATE" and, together with the
events listed in (i), a "PUT OPTION EVENT").
(c) The Family Group may only exercise the Put Option once and only for all of
the Family Group Shares (and not for a portion of them) at any time during the
period beginning on the occurrence of a Put Option Event and ending on the date
that no Put Option Event is continuing. If the relevant Put Option Event is the
occurrence of the Put Option Exercise Date, the Put Option may be exercised at
any time after the Put Option Exercise Date and no later than seventy-five (75)
days after that date. The Put Option shall become null and void if it has not
been previously exercised, (i) on the date of the Notice of Call, or (ii) at the
end of the seventy-five-day (75-day) period referred to hereinabove.
(d) If the Family Group wishes to exercise the Put Option, it shall notify
Quiksilver of its intent to do so (the "NOTICE OF PUT") during the applicable
exercise period in the form set forth in Article 7.5(a). Quiksilver shall have a
period of fifteen (15) days from receipt of the Notice of Put in order to notify
the Family Group of either (i) the amount of the Exercise Price of the Put
Option, or (ii) of Quiksilver's desire to exercise the Call Option, rather than
to allow the Family Group to exercise the Put Option. The Notice of Put shall
constitute an irrevocable commitment on the part of the Family Group to sell the
Family Group Shares to Quicksilver or to any party designated by Quicksilver,
which Quicksilver accepts.
(e) If, pursuant to section (ii) of paragraph (d) hereinabove, Quiksilver should
exercise the Call Option within fifteen (15) days from the receipt of the Notice
of Put pursuant to paragraph (d) hereinabove, the Family Group shall sell the
Family Group Shares to Quiksilver, who shall acquire them from the Family Group
within thirty (30) days of the Notice of Put, at the Exercise Price of the Call
Option.
(f) If Quiksilver should fail to exercise the Call Option within fifteen (15)
days of the Notice of Put, the Family Group shall sell the Family Group Shares
to Quiksilver, who shall acquire them from the Family Group within thirty (30)
days of the Notice of Put, at the Exercise Price of the Put Option.
10
5.3 CALL OPTION
(a) The Family Group irrevocably promises to Quiksilver that it shall sell, at
Quiksilver's request, all of the Family Group Shares (the "CALL OPTION"), in
accordance with the terms of this Article 5.3.
(b) The Call Option thus granted may be exercised by Quiksilver (i) in the event
of a continued failure by any Member of the Family Group to perform any of
her/his obligations under this Agreement or under the Pledge of the Family Group
Shares; (ii) in the event of the death or the incapacity of all of the
individual Members of the Family Group; (iii) if, as a result of proceedings
initiated by any Member of the Family Group, a tribunal or court of arbitration
questions either the validity of the restrictions imposed on the voting rights
associated with the Family Group Shares or the validity or the enforceability of
the Family Group's obligations under this Agreement; (iv) in the event of a
Notice of Put pursuant to Article 5.2(d); and (v) as of the expiration date of a
five-year (5-year) period starting on the date of this Agreement (the "CALL
OPTION EXERCISE DATE" and, together with events listed in (i), (ii), (iii), and
(iv) hereinabove, a "CALL OPTION EVENT").
(c) Quiksilver may only exercise the Call Option once and only for all of the
Family Group Shares (and not for a portion of them) at any time during the
period beginning on the occurrence of a Call Option Event and ending on the date
that no Call Option Event is continuing. If the relevant Call Option Event is
the occurrence of the Call Option Exercise Date, the Call Option may be
exercised at any time after the Call Option Exercise Date and no later than
ninety (90) days after that date. The Call Option shall become null and void if
it has not been previously exercised, (i) on the date of the Notice of Put, or
(ii) at the end of the ninety-day (90-day) period referred to hereinabove.
(d) If Quiksilver wishes to exercise the Call Option, it shall notify the Family
Group of its intent to do so (the "NOTICE OF CALL") during the applicable
exercise period in the form set forth in Article 7.5(a). The Notice of Call
shall specify the Exercise Price of the Call Option. It shall constitute an
irrevocable commitment on the part of Quiksilver to acquire (or to cause any
entity designated by Quicksilver to acquire) all of the Family Group Shares,
which the Family Group irrevocably undertakes to sell.
(e) In the event of a Notice of Call, the Family Group shall sell the Family
Group Shares to Quiksilver, who shall acquire them from the Family Group, within
thirty (30) days from the receipt of the Notice of Call, at the Exercise Price
of the Call Option.
ARTICLE 6 - TRANSFER OF QUIKSILVER SHARES
6.1 Except following the termination of this Agreement, the Quiksilver Shares
will be locked-up during a five (5) year period from the date of this Agreement,
with the exception of (i) Transfers to a legal entity in which Quiksilver or the
Company owns, directly or indirectly, 100% of the capital and (ii) Transfers of
shares which are transferred for no charge to third parties acting as board
members; provided that the Transferee shall covenant to comply with all of the
obligations of the Transferor under this Agreement. Any Transfer completed
during this lock-up period in breach
11
of this lock-up clause will be null and void, and shall be treated as such by
the Company.
(a) As a penalty clause, any Transfer or attempted Transfer of Quiksilver Shares
made in breach of this Article shall entail payment by Quiksilver to the Family
Group of a penalty equal to three million euro (EUR 3,000,000), in addition to
(and not in replacement of) any damages payable to the Family Group; payment of
this sum shall not confer any validity whatsoever on the Transfer or the
attempted Transfer.
ARTICLE 7 - MISCELLANEOUS PROVISIONS
7.1 TAX TREATMENT OF THE TRANSACTION
(a) Each Member of the Family Group shall fully and accurately complete and
deliver to Quiksilver, a United States Internal Revenue Service Form W-8BEN or
any similar or successor form thereto (collectively, the "FORM W-8BEN")
representing that such Member of the Family Group is a non-U.S. person and
claiming the benefit of the Tax Treaty with respect to any payments received
under the terms of this Agreement, the Acquisition Agreement or the bylaws of
the Company (the "TRANSACTION DOCUMENTS") (including any dividend distribution
received from the Company) (i) on the date hereof, (ii) before any such Form
W-8BEN previously provided expires, (iii) promptly upon learning that any such
Form W-8BEN previously provided has become obsolete or incorrect, and (iv)
promptly upon reasonable demand by Quiksilver. Each Member of the Family Group
shall complete the Form W-8BEN in such a manner as to qualify the payments made
under the Transaction Documents for the lowest rate of U.S. withholding tax
available under the Tax Treaty with respect to such payments. For the avoidance
of doubt, neither the acceptance by Quiksilver of a Form W-8BEN, nor the making
of payments, contemplated by any of the Transaction Documents free from
withholding tax shall be construed as an agreement by Quiksilver that a Member
of the Family Group has satisfied its obligations under this Article 6.1(a) or
as a waiver by Quiksilver of such obligations.
(b) Each Member of the Family Group must immediately notify Quiksilver if he is
notified that he must or may need to file a tax return for United States federal
tax (other than Form W-8BEN) that refers to one of the transactions contemplated
by the Transaction Documents. The Family Group must consult Quiksilver prior to
any of its Members filing such a tax return. Quiksilver shall notify the Family
Group in writing of how it treats such transactions, for United States federal
income tax purposes ("TREATMENT USED BY THE Purchaser"); this information being
communicated to the Family Group on or before the time the Call Option or the
Put Option are exercised. To the extent permitted by law (including but not
limited to regulations), the Parties shall agree to complete any statement
related to U.S. taxation in a manner consistent with the Treatment Used by the
Purchaser, and the Parties shall agree not to otherwise characterize the
transactions for U.S. federal income tax purposes in any correspondence or
communications with a U.S. government authority.
(c) Prior to making any representation or other statement to any governmental
authority concerning the factual assumptions underlying the Treatment Used by
the Purchaser, each Member of the Family Group shall request that Quiksilver
inform the Family Group in writing of the Treatment Used by the Purchaser and of
the factual
12
assumptions underlying the Treatment Used by the Purchaser, and Quiksilver shall
promptly do so unless Quiksilver has already informed the Family Group.
(d) The Members of the Family Group represent that at the time of this
Agreement, they are French tax residents for the purpose of the Tax Treaty, and
that as a consequence of the present situation, the payment that they will
receive under the terms of the Transaction Documents will benefit from the
provisions of the Tax Treaty. They undertake to notify Quiksilver of any change
in their tax residence during the term of this Agreement. For so long as the
Members of the Family Group shall remain French tax residents for the purpose of
the French Code general des impots (which the Members of the Family Group
undertake to prove, upon the Purchaser's request), the Purchaser shall bear any
withholding tax on the distributions made by the Company to the Members of the
Family Group (excluding any taxes and duties levied on such dividend
distribution pursuant to French law, if any).
(e) The Parties agree to notify each other of, and to cooperate in connection
with the prosecution of, any audits or tax contests relating to the transactions
contemplated by the Transaction Documents, and they both undertake to cooperate
with each other within this context, and provided that the Party seeking
cooperation will reimburse the cooperating Party for all out of pocket costs
incurred in connection with such cooperation. Quiksilver shall control any audit
or tax contest resulting from the assertion of any United States tax claim
against Quiksilver or the Company.
7.2 PLEDGES
(a) As security for his obligation to pay the Exercise Price of the Put Option
or the Exercise Price of the Call Option, as the case may be, and as security
for Quiksilver's obligation to pay the exercise prices of the put option and the
call option pursuant to the shareholders' agreement entered into between
Quiksilver and the Family Group with respect to Roger Cleveland Golf Company,
Inc., Quiksilver shall, as of the date hereof, enter into the pledge agreement
in favor of the Family Group, set forth in APPENDIX 7.2(A) of this Agreement
(the "PLEDGE OF QUIKSILVER SHARES"). As security for their obligation to deliver
the Family Group Shares pursuant to the Put Option and the Call Option, and as
security for their commitment not to Transfer pursuant to Article 5.1 of this
Agreement, the Family Group shall, as of the date hereof, enter into the pledge
agreement in favor of Quiksilver set forth in APPENDIX 7.2(B) of this Agreement
(the "PLEDGE OF FAMILY GROUP SHARES" and, together with the Pledge of
Quicksilver Shares, the "PLEDGES").
(b) The Parties undertake to take the necessary measures to release the Pledges
as part of the exercising the Put Option or the Call Option.
7.3 TERM OF THE AGREEMENT
(a) With the exception of the representations made in Article 4, which are made
on the date of this Agreement unless provided otherwise, and with the exception
of the rights and obligations which are expressly scheduled to take effect on
the date of this Agreement pursuant to the terms hereof, this Agreement shall
take effect on the Second Closing Date.
13
(b) With the exception of rights and obligations that this Agreement expressly
states shall continue in effect after the Expiration Date, the Parties'
obligations shall terminate on the date that the Family Group Shares are
transferred pursuant to the Call Option or the Put Option or, if applicable,
upon a cancellation of the transfer of the Controlling Interest, and in any
event no later than the twentieth (20th) anniversary of the date of this
Agreement (the "EXPIRATION DATE").
7.4 EXPENSES AND FEES
Unless otherwise agreed, each of the Parties shall bear the expenses and fees
incurred by it or for it in relation to this Agreement and the transactions
contemplated herein, including the professional fees of its advisors and
brokers.
7.5 NOTICES
(a) Any notices or communications pursuant to this Agreement shall be made by
fax or by registered mail with return receipt requested or by an express courier
service and must be addressed to the persons and addresses indicated below, or
to any other address or fax number indicated in writing, in the same manner, by
one Party to the other:
To Quiksilver or to the Company:
Quiksilver, Inc.
15202 Graham Street
Huntington Beach, California (United States of America)
Fax: +1.714.889.4250
To the attention of: Charlie Exon
With a copy to:
Mr. Pierre Servan-Schreiber
Avocat a la Cour
Skadden, Arps, Slate, Meagher & Flom LLP
68, rue du Faubourg Saint-Honore
75008 Paris, France
Fax: +33.1.55.27.11.99
To the Family Group:
Mr. Laurent Boix-Vives
1, Boulevard du Marechal Joffre,
38000 Grenoble
Fax: +33.4.76.47.73.31
With a copy to:
Mr. Jean-Philippe Delsol
Avocat a la Cour
14
Delsol et Associes
12, quai Andre Lassagne
69001 Lyon
Fax: +33.4.72.10.20.31
(b) The date of receipt of the notice shall be deemed to be the date when the
fax or registered letter is received or the delivery date by express courier, as
attested by the relevant delivery form, provided that if the receipt of a notice
takes place on a day that is not a US Business Day (when this pertains to a
notice addressed to Quiksilver) or a French Business Day (when this pertains to
a notice addressed to the Family Group) or takes place outside normal office
hours in the United States or in France, as applicable, then such notice shall
be deemed to have been received on the opening date and time immediately
following receipt of the correspondence. Any correspondence addressed to the
Family Group at the address or fax number hereinabove shall be deemed
simultaneously received by each of the Members of the Family Group, and the
Members of the Family Group shall have no recourse against Quiksilver for
sending notices solely to the Family Group's Representative.
7.6 FAMILY GROUP'S REPRESENTATIVE
(a) The Family Group hereby appoints Mr. Laurent Boix-Vives (the "FAMILY GROUP'S
REPRESENTATIVE") as its representative, and gives him all powers, to receive any
notice hereunder, to take any necessary measures in the name of and on behalf of
the Members of the Family Group in connection with the execution of this
Agreement and the performance and completion of all of the transactions
contemplated herein and, if necessary, to modify this Agreement and waive any
and all rights under this Agreement. Quiksilver may rely on any action
undertaken by the Family Group's Representative on behalf of the Family Group;
it will not entail any correspondence or notice delivered in connection with
this Agreement by any Member of the Family Group other than the Family Group's
Representative (except as provided in paragraph (b) below). The representations
made, the agreements concluded, and the actions undertaken by the Family Group's
Representative pursuant to this clause shall have binding force against each of
the Members of the Family Group.
(b) Should Mr. Laurent Boix-Vives be impeded from acting as Sellers'
Representative for any reason whatsoever, the Sellers hereby appoint Ms.
Jeannine Boix-Vives as the replacement for Family Group's Representative. The
appointment of Ms. Jeannine Boix-Vives as the Family Group's Representative
shall become effective as of the date on which Quiksilver is notified of such
appointment by Ms. Jeannine Boix-Vives in the manner set forth in Article 7.5.
Subsequently, should Ms. Jeannine Boix-Vives be impeded from acting for any
reason whatsoever, the Members of the Family Group hereby appoint SDI as the
Family Group's Representative (or, should SDI have been dissolved by that date,
Ms. Christine Simon shall be appointed -- and, if Ms. Christine Simon is
impeded, Ms. Sylvie Bernard shall be appointed). The appointment of SDI, of Ms.
Christine Simon, or of Ms. Sylvie Bernard as the Family Group's Representative
shall become effective as of the date on which Quiksilver is notified of such
appointment by SDI's legal representative, by Ms. Christine Simon or by Ms.
Sylvie Bernard, respectively, in each case in the manner set forth in Article
7.5 (provided that, if SDI should issue several contradictory notices in such a
context, only the first notice shall be valid).
15
7.7 ASSIGNMENT
(a) No Party may assign or transfer, in any way whatsoever, its rights and
obligations under this Agreement without the prior written consent from the
Family Group's Representative (when this pertains to a transfer by the
Purchaser) or from Quiksilver (when this pertains to a transfer by any of the
Sellers).
(b) As an exception to the foregoing, (i) the rights of Members of the Family
Group may be conveyed pursuant to Article 5.1(a)(i) and paragraph (c) hereunder
(except for the right of representation referred to in Article 7.6), and (ii)
Quiksilver may assign all (and not some only) of its rights and obligations
under this Agreement to any company controlled by Quiksilver within the meaning
of Article L. 233-3 of the Commercial Code.
(c) Quiksilver shall maintain at its office a book entry system to reflect and
record the ownership of the rights of each Member of the Family Group under the
Transaction Documents or any interest therein. No transfer of such rights by a
Member of the Family Group shall be valid, and Quiksilver will not recognize any
party other than such Member of the Family Group as entitled to receive a
payment under the Transaction Documents unless such transfer has been entered in
such book entry system. For the avoidance of doubt, if such a transfer is
otherwise permitted under the Transaction Documents, Quiksilver shall enter such
transfer in such book entry system upon request by the transferor; provided,
however, that Quiksilver shall not enter any transfer of such rights on such
book entry system unless presented with instruments of assignment executed by
the transferor and transferee in favor of the transferee (and not in favor of
bearer or indorsed in blank).
7.8 SUCCESSORS AND BENEFICIARIES
Any and all rights and obligations pursuant to this Agreement are actively and
passively, jointly and severally binding on the Parties' successors, heirs,
beneficiaries, and legal representatives, provided that this Agreement is
concluded in consideration of the person of the Members of the Family Group and,
consequently, the rights conferred to the Members of the Family Group by this
Agreement shall not be assigned, transferred or conveyed in any manner
whatsoever, except to another Member of the Family Group.
7.9 SEVERABILITY
If any of the provisions of this Agreement becomes null, illegal, unenforceable,
or incapable of being performed in any manner whatsoever (hereinafter "DISPUTED
PROVISIONS"):
(a) the validity and enforceability of the other provisions shall not be
affected or compromised in any way; and
(b) the Parties shall negotiate in good faith in order to replace the Disputed
Provisions with valid and enforceable provisions that are as close as possible
to the Parties' common intent or, if such common intent cannot be determined,
the intent of those among the Parties which the Disputed Provision is supposed
to protect.
16
7.10 MODIFICATIONS AND WAIVERS
(a) This Agreement shall only be modified by a written agreement duly signed by
the Purchaser and the Sellers' Representative.
(b) Any waiver by a Party to one of its rights pursuant to this Agreement shall
only take effect if it was made in writing, and shall be strictly interpreted.
(c) No waiver of any one of the provisions of this agreement shall constitute a
waiver of any other provision of this Agreement other than the provision which
was waived.
7.11 APPLICABLE LAW - COMPETENT COURT
(a) This Agreement and its interpretation are exclusively governed by French
law.
(b) Any dispute arising in connection with this Agreement, including the
validity, the interpretation and the performance hereof, and which cannot be
resolved amicably, shall fall under the exclusive jurisdiction of the courts
within the jurisdiction of the Paris Court of Appeals.
Signed in Lyon, on April 12, 2005, in five (5) copies.
- --------------------------------------
FOR QUIKSILVER, INC.
By Mr. Bernard Mariette
- --------------------------------------
FOR SKI EXPANSION SCA
By Mr. Laurent Boix-Vives
- --------------------------------------
MR. LAURENT BOIX-VIVES
- --------------------------------------
MRS. JEANNINE BOIX-VIVES
- --------------------------------------
MRS. CHRISTINE SIMON
- --------------------------------------
MRS. SYLVIE BERNARD
17
Appendix 2.1
Amended bylaws of Ski Expansion SCA
18
Appendix 3.3
Bylaws of Ski Expansion SCA following the change into a societe par actions
simplifiees
19
Appendix 7.2 (A)
Pledge of Quiksilver Shares
20
Appendix 7.2 (B)
Pledge of Family Group Shares
21
Exhibit 2.5
MINORITY HOLDINGS
PURCHASE AGREEMENT
BETWEEN THE UNDERSIGNED:
MR. LAURENT BOIX-VIVES, born on August 30, 1926 at Brides les Bains (73570),
residing at 1, Boulevard du Marechal Joffre, 38000 Grenoble,
MS. JEANNINE BOIX-VIVES, born on December 25, 1927 at Montbonnot (38330),
residing at 1, Boulevard du Marechal Joffre, 38000 Grenoble,
MS. CHRISTINE SIMON, born on January 23, 1964 at Grenoble, residing at 1,
Boulevard du Marechal Joffre, 38000 Grenoble,
MS. SYLVIE BERNARD, born January 23, 1964 at Grenoble, residing at 1, Boulevard
du Marechal Joffre, 38000 Grenoble,
SDI SOCIETE DE SERVICE ET DEVELOPPEMENT, a Swiss societe anonyme (corporation)
with share capital of CHF 500,000, with registered offices at 120 chemin de la
Rueyre, 1020, Renens, Switzerland ("SDI"), represented by Mr. Laurent
Boix-Vives, acting as President (Chairman and CEO),
acting jointly and severally for purposes of this Agreement,
(hereinafter referred to jointly as
the "SELLERS" and individually as a "SELLER")
PARTIES OF THE FIRST PART,
AND
SKIS ROSSIGNOL SA, a societe anonyme with share capital of EUR 49,792,256, with
its registered offices at "Le Menon", Voiron (38500), registered with the
Grenoble Registry of Commerce and Companies under number 056 502 958,
represented by either Christine Simon or Sylvie Bernard, duly authorized for the
present purposes,
(hereinafter referred to as "SKIS ROSSIGNOL" or
the "PURCHASER")
PARTY OF THE OTHER PART,
(each of the Sellers and the Purchaser being hereinafter referred to
individually as a "PARTY" and collectively as the "PARTIES"),
IN THE PRESENCE OF:
QUIKSILVER, INC., a Delaware corporation, with its registered offices at 15202
Graham Street Huntington Beach, California, United States of America,
represented by Mr. Bernard Mariette, acting as President,
(hereinafter referred to as "QUIKSILVER").
WHEREAS:
A. The Sellers together hold the following minority interests (hereinafter
referred to as the "MINORITY HOLDINGS") in certain subsidiaries of Skis
Rossignol (hereinafter referred to as the "IDENTIFIED SUBSIDIARIES"):
(i) 1,231 shares of Skis Dynastar S.A., representing 0.75% of this
company's capital and voting rights; (ii) 200 shares of Skis Rossignol
de Espana S.A., representing 3.33% of this company's capital and voting
rights; (iii) one share of Rossignol Ski Osterreich, representing 0.25%
of this company's capital and voting rights; (iv) 96,687 shares of
Rossignol Lange SpA, representing 0.55% of this company's capital and
voting rights; (v) 5 shares of Rossignol Ski Poles Vallee d'Aoste SpA,
representing 0.01% of this company's capital and voting rights; (vi)
one share of Rossignol Ski AG, representing 0.02% of its capital and
voting rights, and (vii) one share of Look Fixations SA, representing
0.0001% of this company's capital and voting rights, held by the
Sellers as of the signing date of this Agreement (the "SIGNING DATE").
The Minority Holdings together represent all the interests held
directly or indirectly by the Sellers in the Subsidiaries of Skis
Rossignol (other than Roger Cleveland US, as defined in the Acquisition
Agreement) and are allocated among the Sellers in the manner described
in Exhibit A hereto.
B. Pursuant to an Acquisition Agreement dated the date hereof
("ACQUISITION AGREEMENT"), the Sellers agree to transfer to Quiksilver
their direct and indirect interests in Skis Rossignol and its
Subsidiaries.
C. Pursuant to the Acquisition Agreement, the Sellers agree to transfer to
the Purchaser, and the Purchaser agrees to purchase, on the Second
Closing Date, as defined below, the Minority Holdings.
D. This purchase agreement (the "AGREEMENT") sets forth the terms and
conditions of the transfer of the Minority Holdings.
E. Quiksilver acknowledges the existence of this Agreement.
CONSEQUENTLY, THE FOLLOWING HAS BEEN AGREED TO:
ARTICLE 1 - DEFINITIONS
Unless the context demands otherwise, the following terms and expressions have
the following respective meanings:
"PURCHASER" has the meaning given in the Preamble of this Agreement.
"TRANSFER" means any transaction involving a transfer of ownership, including,
without limitation, (i) sales and transfers (with or without consideration,
inter vivos or mortis causa), including any transfer by means of an adjudication
or by virtue of a judgment, (ii) transfers for the payment of goods or services
(dation en paiement), or by means of an exchange, partition, division, loan
(including specifically any loan of securities), sale with right of repurchase
(vente a remere), contribution, business contribution, liquidation, merger or
demerger, spin-off, split-off or any combination of these transactions, (iii)
transfers concerning ownership, usufruct or any other subdivision of ownership
rights or any other right concerning the object of the transfer (and including,
where applicable, any voting right or the right to receive dividends), and to
"TRANSFER" means the right to proceed with any of the foregoing transactions, or
to undertake to proceed with such a transaction.
"TRANSFER OF THE MINORITY HOLDINGS" means the Transfer by the Sellers and the
purchase by the Purchaser of all the Minority Holdings held by the Sellers.
"LIENS" has the meaning given it in Article 6.1(a).
"KNOWLEDGE OF THE SELLERS" means, with respect to any fact or event, the
knowledge of such fact or event by any of the Sellers.
"ACQUISITION AGREEMENT" has the meaning given it in paragraph B of the Preamble,
and refers to the agreement mentioned therein and its appendices.
"AGREEMENT" means this agreement as well as its appendix.
"SETTLEMENT-DELIVERY DATE" means the date of settlement and delivery of the
shares of Skis Rossignol purchased by Quiksilver within the framework of the
Cash Tender Offer, as defined in the Acquisition Agreement, initiated by
Quiksilver on the shares of Skis Rossignol pursuant to article 2.2 of the
Acquisition Agreement (not including any shares that may be acquired by
Quiksilver with the re-opening of the Cash Tender Offer in accordance with
Article 232-4 of the General Regulation of the French Autorite des marches
financiers, and which will be the subject of a subsequent settlement-delivery).
"SECOND CLOSING DATE" means either (i) the Settlement-Delivery Date, or (ii) if
the Settlement-Delivery Date has not occurred by July 19, 2005, July 19, 2005
(provided the authorizations necessary for the Acquisition under the Antitrust
Regulations, as defined in the Acquisition Agreement, have not been obtained on
or prior to that date, the Second Closing Date will be the date on which these
authorizations are obtained).
"SIGNING DATE" means the signing date of this Agreement.
"DISPUTED PROVISIONS" has the meaning given to it in Article 7.6.
"SUBSIDIARY" means, with regard to any legal person, any person or entity
controlled by that legal person according to the meaning provided by Article L.
233-3 of the French Commercial Code, including any joint-venture company
(societe en participation), economic interest groupings (groupements d'interet
economiques) or partnership of which that legal person is a member, provided
that Article L. 233-3 of the French Commercial Code shall be interpreted to
include, mutatis mutandis, entities that are not commercial companies (for
example, non-commercial entities, economic interest groupings or associations).
"IDENTIFIED SUBSIDIARY" has the meaning given to it in paragraph A of the
Preamble.
"BUSINESS DAY" means, with respect to France or the United States, any day other
than a Saturday, a Sunday or a day on which commercial banks or regulated
markets are closed for business during the entire day in Paris or New York,
respectively; references to a "Business Day" within this Agreement, without
specifying the country to which Business Day applies, are references to days
which are both Business Days in France and Business Days in the United States.
"MINORITY HOLDINGS" has the meaning given to it in paragraph A of the Preamble.
"PARTY" has the meaning given to it in the Preamble.
"INTERIM PERIOD" has the meaning given to it in Article 5.
"PREAMBLE" means (i) the introductory paragraphs A, B, C, D and E of this
Agreement, and (ii) the designation of the Parties and Quiksilver appearing at
the head of this Agreement.
"PURCHASE PRICE" has the meaning given to it in Article 3.1.
"SELLERS' REPRESENTATIVE" has the meaning given to it in Article 7.3(a).
"SKIS ROSSIGNOL" has the meaning given to it in the Preamble.
"SELLERS" has the meaning given to it in the Preamble.
Any term beginning with an upper-case letter and not defined herein has the
meaning given it in the Acquisition Agreement
ARTICLE 2 - TRANSFER OF THE MINORITY HOLDINGS
(a) Pursuant to the undertakings set forth in article 2.5 of the
Acquisition Agreement, on the Second Closing Date the Sellers shall transfer to
the Purchaser, who shall acquire, the Minority Holdings, free of any privilege,
security interest, encumbrance, or other restriction, limitation or third-party
right whatsoever, under the terms and conditions defined in this Agreement.
(b) The Parties represent that the Purchase Price results from values
freely negotiated between them. Consequently, the Parties waive in advance any
claim they might have against
one another, or against Quiksilver, in the event that the Purchase Price does
not correspond to the actual value of the Minority Holdings.
ARTICLE 3 - PRICE, COMPLETION OF THE TRANSFERS
3.1 PRICE
The transfer of the Minority Holdings is agreed to for a total price of one
million, two hundred and forty-five thousand (1,245,000) euros (the "PURCHASE
PRICE").
3.2 COMPLETION OF THE TRANSFER
On the Second Closing Date, the Minority Holdings will be transferred to the
Purchaser and the Purchase Price will be paid to the Sellers.
Quiksilver undertakes to pay the Purchase Price on behalf of the Purchaser on
the Second Closing Date. The Purchaser hereby acknowledges that this payment
will give rise to a claim by Quiksilver against the Purchaser in the amount of
the Purchase Price. The Sellers acknowledge having been informed that the
Purchase Price will be paid by Quiksilver and they hereby consent to receive
this payment from Quiksilver. Consequently, they waive in advance any right or
claim against the Purchaser for payment of the Purchase Price.
The Sellers will present to Quiksilver and send to the Purchaser all documents
establishing their property title to the Minority Holdings and furthering the
successful outcome of the Transfer of the Minority Holdings.
Except in the case of a written waiver from Quiksilver upon presentation of a
document or from the Purchaser upon the remittance of a document, any
transactions to be completed by the Second Closing Date will be deemed as taking
place subject to the completion of all of them, such that no transaction or
remittance of documents, and no transfer of ownership nor payment obligation
will be deemed as final until all transactions and remittances are complete.
The Parties undertake to complete all formalities and to take all measures that
might be necessary for the transactions to be successfully completed by the
Second Closing Date under this Agreement, including under Article 5, and to
inform Quiksilver on a regular basis of their progress.
ARTICLE 4 - COMPETING OFFERS
The Sellers undertake not to request directly or indirectly any proposal by
third parties for the Transfer of the Minority Holdings, and not to discuss the
possibility of such a Transfer with any party.
ARTICLE 5 - COMMITMENTS OF THE PARTIES
From the Signing Date to the Second Closing Date (the "INTERIM PERIOD"), the
Parties undertake to sign any document and to undertake any action necessary for
the consummation of the Transfer of the Minority Holdings and to acknowledge
their enforceability against third parties in the concerned jurisdictions.
ARTICLE 6 - SELLERS' REPRESENTATIONS
The Sellers warrant and represent the following to the Purchaser:
6.1 OWNERSHIP OF THE TRANSFERRED RIGHTS
(a) As of the Signing Date, the Sellers together hold all rights conferring
full ownership (pleine propriete) of the Minority Holdings, which are fully paid
and free of any privilege, lien, encumbrance or other restriction, limitation,
pledge, security interest or right of third parties whatsoever (the "LIENS").
(b) During the Interim Period, the Sellers together will hold all the
rights conferred by the full ownership of the Minority Holdings, fully paid and
free of any Lien, with the exception of the Liens created by this Agreement.
Consequently, (i) the Purchaser, on the Second Closing Date, will become the
valid owner of the Minority Holdings, free of any Lien, and (ii) the Minority
Holdings will, on this same date, be validly sold and transferred to the
Purchaser, which will become the owner thereof, and this Transfer will be
enforceable against third parties, subject to completion of the necessary
formalities within the concerned jurisdictions.
(c) With the exception of the Minority Holdings, as of the Signing Date the
Sellers do not hold, and will not hold as of the Second Closing Date, any direct
or indirect interest in the capital of the Identified Subsidiaries, and with the
exception of the rights resulting from this Agreement, they do not directly or
indirectly hold any right to the Identified Subsidiaries.
6.2 CAPACITY OF THE SELLERS; ACQUISITION OF THE NECESSARY AUTHORIZATIONS
(a) The Sellers have full authority to enter into this Agreement and to
perform their obligations to this end. This Agreement and any documents relating
thereto have been or will be duly signed by each Seller, and constitute against
each of them valid and enforceable obligations in accordance with their terms.
Mr. Laurent Boix-Vives personally guarantees and represents to the Parties and
other signatories that he has been duly authorized by the competent corporate
bodies of SDI, which he represents, to sign this Agreement.
(b) No judicial, arbitration or administrative action, claim, proceeding or
inquiry of such a nature as to prevent the Sellers from signing the Agreement or
from executing their obligations under it is currently underway, and to the
Knowledge of the Sellers, no action, claim, proceeding or inquiry of such kind
risks being filed against any Seller. The signing of this Agreement, the
consummation of the Transfer of the Minority Holdings and the performance by the
Sellers of all their obligations under this Agreement (i) do not and shall not
conflict with or violate any statutory or regulatory provision nor any
administrative, judiciary or arbitration decision, (ii) do not and shall not
conflict with or violate, nor does it create any right to revoke or cancel, any
permits, approvals or authorizations necessary to the activities of the
Identified Subsidiaries, and (iii) do not and shall not conflict with or violate
any commitment or obligation of the Identified Subsidiaries, of any kind
whatsoever, nor will give any co-contractors of the Identified Subsidiaries any
right under the agreements entered into with them (including any change in the
due date of any obligation whatsoever, and any right of early termination or
specific performance).
ARTICLE 7 - MISCELLANEOUS PROVISIONS
7.1 FEES AND EXPENSES
Unless otherwise agreed, each of the Parties and Quiksilver shall bear the
expenses and fees incurred by them or on their behalf in relation to this
Agreement and the transactions contemplated herein, including advisory and
brokerage fees.
7.2 NOTIFICATIONS
(a) Any notices or communications pursuant to this Agreement shall be made
by fax or registered mail with return receipt, or by an express courier service,
and be sent to the parties and addresses indicated below, or to any other
address or fax number indicated in writing, in the same fashion, by any of the
Parties to the others or to Quiksilver or by Quiksilver to any of the Parties:
To the Purchaser or to Quiksilver:
Skis Rossignol SA
Lieu-dit "Le Menon",
38500 Voiron
Fax: +33.4.76.65.67.51
Attn.:
Quiksilver, Inc.
15202 Graham Street, Huntington Beach,
California (United States of America)
Fax: +1.714.889.4250
Attn.: Mr. Charlie Exon
With copy to:
Me Pierre Servan-Schreiber
Avocat a la Cour
Skadden, Arps, Slate, Meagher & Flom LLP
68, rue du Faubourg Saint-Honore
75008 Paris
Fax: +33.1.55.27.11.99
To the Sellers:
Mr. Laurent Boix-Vives
1, Boulevard du Marechal Joffre
38000 Grenoble
Fax: +33.4.76.47.73.31
With copy to:
Me Jean-Philippe Delsol
Avocat a la Cour
Delsol et Associes
12, quai Andre Lassagne
69001 Lyon
Fax: +33.4.72.10.20.31
(b) The date of receipt of the notice shall be deemed to be the date
when the fax or registered letter is received or the delivery date by express
courier, as attested by the relevant delivery form, provided that if such
receipt occurs on a day that is not a Business Day in the United States (for a
notification sent to Quiksilver) or in France (for a notification sent to the
Sellers or to the Purchaser), or outside normal business hours in the United
States or France, as the case may be, such correspondence will be deemed as
having been received on the date and time of opening of office hours immediately
after receipt of such correspondence. Any correspondence sent to the Sellers at
the above address or fax number will be deemed as having been received
simultaneously by each of the Sellers, with none of them entitled to any
recourse against Quiksilver or Rossignol for sending such correspondence solely
to the Sellers' Representative.
7.3 SELLERS' REPRESENTATIVE
(a) The Sellers hereby appoint Mr. Laurent Boix-Vives (the "SELLERS'
REPRESENTATIVE") to receive any notice hereunder and thereunder, to take any
necessary measures in the name of and on behalf of the Sellers in connection
with the execution of this Agreement and the performance and completion of all
of the transactions contemplated herein and, if necessary, to amend this
Agreement and to waive all rights under this Agreement. The Purchaser and
Quiksilver may rely on any action undertaken by the Sellers' Representative on
behalf of the Sellers; they will not generate any correspondence or notices in
relation to this Agreement by a Seller other than the Sellers' Representative
(except as provided for in paragraph (b) below).
(b) Representations made, agreements entered into, and actions
undertaken by the Sellers' Representative pursuant to this clause will have
binding fore against each of the Sellers, who will be jointly and severally
liable for any damage caused to the Purchaser or to Quiksilver for this reason,
and who shall assume responsibility for any gain or loss in this regard.
(c) Should Mr. Laurent Boix-Vives be impeded from acting as Sellers'
Representative for any reason whatsoever, the Sellers hereby appoint Ms.
Jeannine Boix-Vives as the replacement for Sellers' Representative. The
appointment of Ms. Jeannine Boix-Vives as the Sellers' Representative shall
become effective as of the date on which the Purchaser is notified of such
appointment by Ms. Jeannine Boix-Vives in the manner set forth in Article 7.2.
Subsequently, should Ms. Jeannine Boix-Vives be impeded from acting for any
reason whatsoever, the Sellers hereby appoint SDI as the Sellers' Representative
(or, should SDI have been dissolved by that date, Ms. Christine Simon shall be
appointed -- and, if Ms. Christine Simon is impeded, Ms. Sylvie Bernard shall be
appointed). The appointment of SDI, of Ms. Christine Simon, or of Ms. Sylvie
Bernard as the Sellers' Representative shall become effective as of the date on
which the Purchaser is notified of such appointment by the legal representative
of SDI, by Ms. Christine Simon, or by Ms. Sylvie Bernard, as provided for in
Article 7.2 (provided that, if SDI should issue several contradictory notices in
such a context, only the first notice shall be valid).
7.4 TRANSFER
No Party may in any way whatsoever sale or transfer its rights and obligations
under this Agreement without the prior written consent (a) of the Sellers'
Representative and Quiksilver, for a transfer by the Purchaser, (b) of the
Purchaser and Quiksilver, for a transfer by any of the Sellers, or (b) of
Quiksilver, for a transfer by the Purchaser or by any of the Sellers.
7.5 SUCCESSORS AND BENEFICIARIES
Any and all rights and obligations pursuant to this Agreement actively and
passively bind the successors, heirs, beneficiaries, and legal representatives
of the Parties and Quiksilver, jointly and severally, with this Agreement
concluded in consideration of the person of the Sellers, and consequently the
rights conferred to the Sellers by this Agreement may not be subject to any
transfer of any kind whatsoever, except to the benefit of another Seller.
7.6 DIVISIBILITY
If any of the provisions of this Agreement is found to be null, illegal,
unenforceable, or incapable of being performed in any manner whatsoever
(hereinafter "DISPUTED PROVISIONS"):
(a) the validity and enforceability of the other provisions shall not be
affected or compromised in any way; and
(b) the Parties and Quiksilver will negotiate in good faith to replace
the Disputed Provisions by valid and enforceable provisions as close as possible
to the common intent of the Parties and Quiksilver or, if such common intent
cannot be determined, the intent of those Parties or of Quiksilver that the
Disputed Provision is aimed at protecting.
7.7 ENTIRETY OF THE AGREEMENT
This Agreement, together with the Acquisition Agreement, sets forth the entire
agreement of the Parties and Quiksilver with respect to the subject matters
hereof. It replaces and supersedes any prior agreement, written or oral, and any
exchange of letters or electronic mail between the Parties or between the
Parties and Quiksilver with respect hereto, with the exception of the
Acquisition Agreement.
7.8 CHANGES AND WAIVERS
(a) This Agreement may only be modified by a written agreement duly
signed by the Purchaser, the Sellers' Representative, and Quiksilver.
(b) A waiver by any of the Parties or by Quiksilver to the benefit of any
of the provisions of this Agreement may only be valid if made in writing, and it
shall be strictly interpreted.
(c) No waiver of any one of the provisions of this Agreement shall
constitute a waiver of any other provision of this agreement other than the
waived provision.
7.9 APPLICABLE LAW - JURISDICTION
(a) This Agreement and its interpretation are exclusively governed by
French law.
(b) Any dispute arising in connection of this Agreement, including relative
to its validity, interpretation or performance, which cannot be resolved
amicably, shall fall under the exclusive jurisdiction of the courts within the
jurisdiction of the Paris Court of Appeals.
Signed in Lyon, on April 12, 2005, in six (6) originals.
- ---------------------------------
FOR SKIS ROSSIGNOL SA
by
- ---------------------------------
FOR SDI SOCIETE DE SERVICES ET
DEVELOPPEMENT
by Mr. Laurent Boix-Vives
- ---------------------------------
MR. LAURENT BOIX-VIVES
- ---------------------------------
MRS. JEANNINE BOIX-VIVES
- ---------------------------------
MRS. CHRISTINE SIMON
- ---------------------------------
MRS. SYLVIE BERNARD
- ---------------------------------
FOR QUIKSILVER, INC.
by Mr. Bernard Mariette
Exhibit 2.6
PURCHASE AGREEMENT
OF THE RESIDUAL SKIS ROSSIGNOL SHARES
BETWEEN THE UNDERSIGNED:
- ------------------------
- - MR. LAURENT BOIX-VIVES,
Residing at 1, Boulevard du Marechal Joffre, Grenoble (38000), Born on August
30, 1926 in BRIDES LES BAINS (Savoy), Nationality, French,
PARTY OF THE FIRST PART
- - MS. JEANNINE BOIX-VIVES,
Residing at 1, Boulevard du Marechal Joffre, Grenoble (38000), Born on December
25, 1927 in MONTBONNOT SAINT MARTIN (Isere), Nationality, French,
PARTY OF THE SECOND PART
- - MS. SYLVIE BERNARD,
Residing at 1, Boulevard du Marechal Joffre, Grenoble (38000),
Born on January 23, 1964 in GRENOBLE (Isere),
Nationality, French,
PARTY OF THE THIRD PART
- - MS. CHRISTINE SIMON,
Residing at 1, Boulevard du Marechal Joffre, Grenoble (38000),
Born on January 23, 1964 in GRENOBLE (Isere),
Nationality, French,
PARTY OF THE FOURTH PART
- - SDI SOCIETE DE SERVICE ET DE DEVELOPPEMENT S.A., a Swiss societe anonyme
(corporation) with share capital of CHF 500,000, with its registered offices at
120 chemin de la Rueyre, 1020, Renens, Switzerland ("SDI"), represented by Mr.
Laurent Boix-Vives, acting as President (Chairman and CEO), duly authorized for
the present purposes,
PARTY OF THE FIFTH PART,
HEREINAFTER COLLECTIVELY REFERRED TO AS THE "SELLERS"
-----------------------------------------------------
AND INDIVIDUALLY AS A "SELLER".
-------------------------------
AND
- - SKI EXPANSION, a societe en commandite par actions with share capital of EUR
8,096,624, having its registered office at "Le Menon", Voiron (38500), France,
registered with the Registry of Commerce and Companies of Grenoble under number
070 501 374, represented by Mr. Laurent BOIX-VIVES, in his capacity as Manager,
HEREINAFTER REFERRED TO AS THE "TRANSFEREE"
-------------------------------------------
IN THE PRESENCE OF
- ------------------
- - QUIKSILVER, INC., a Delaware corporation, with its registered offices at 15202
Graham Street Huntington Beach, California, United States of America,
represented by Mr. Bernard Mariette, acting in the capacity of President,
HEREINAFTER REFERRED TO AS "QUIKSILVER",
WHEREAS
- -------
The Sellers and Quiksilver have entered into, on the date of this Purchase
Agreement (the "PURCHASE Agreement"), an Acquisition Agreement (the "ACQUISITION
AGREEMENT"), which provides for the conditions for Quiksilver's purchase of the
control of the group consisting of Skis Rossignol SA and its subsidiaries, held
directly and indirectly by the Sellers.
Skis Rossignol is a societe anonyme with a share capital of EUR 49,792,256 eros,
with its registered offices Rue du Docteur Butterlin, at Voiron (38500),
registered with the Grenoble Registry of Commerce and Companies under number 056
502 958 (the "COMPANY").
In addition to Quiksilver's purchase of the control of the Transferee, a holding
company with 49.90% of the voting rights of Skis Rossignol SA, on the Second
Closing Date, the Acquisition Agreement provides for: (i) the transfer by the
Sellers to the Transferee of the shares of Skis Rossignol that are still held by
them, a transfer which will be followed by (ii) an capital increase of the
Transferee pursuant to the terms of the Acquisition Agreement, which will be
offset by the Transferee's debt resulting from the purchase price to be paid by
the Transferee to the Sellers pursuant to the sale described in (i) above, and
(iii) which will be followed by the Sellers' transfer to Quiksilver of a part of
the shares newly issued by the Transferee.
This Purchase Agreement sets forth the terms and conditions of the transaction
mentioned in paragraph (i) above, that is, the transfer by the Sellers to the
Transferee of the entirety of the shares of Skis Rossignol that are still held
by the Sellers following the Pre-Signing Transactions.
Terms in this Purchase Agreement, which begin with a capital letter, and have
not been defined herein, will have the meaning assigned to them in the
Acquisition Agreement.
NOW THEREFORE, THE PARTIES HAVE AGREED AS FOLLOWS:
- --------------------------------------------------
1 - TRANSFER
The Sellers commit themselves to transfer to the Transferee, who accepts, on the
Date of the Transfer of the Remaining Skis Rossignol Shares (as defined in the
Acquisition Agreement) the entire property of
SEVEN-HUNDRED-AND-FORTY-NINE-THOUSAND-NINE-HUNDRED-AND-FIFTY-EIGHT (749,958)
common shares which they hold and will hold, on the Date of the Transfer of the
Remaining Skis Rossignol Shares, in the Company's capital (collectively, the
"SHARES"), as follows:
- - Mr. Laurent Boix-Vives, transfers to the Transferee.......................................248,162 Shares
- - Mrs. Jeannine Boix-Vives transfers to the Transferee......................................249,308 Shares
- - Mrs. Sylvie Bernard transfers to the Transferee............................................51,244 Shares
- - Mrs. Christine Simon transfers to the Transferee.......................................... 51,244 Shares
- - SDI transfers to the Transferee...........................................................150,000 Shares
Total number of shares transferred ........................................................749,958 Shares
2 - TRANSFER OF PROPERTY
The transfer of property of the Shares will take effect on the Date of the
Transfer of the Remaining Skis Rossignol Shares. On such date, the Sellers will
deliver to Quiksilver (for the benefit of the Transferee) the transfer orders,
duly executed, ordering the transfer of the Shares, as well as the CERFA forms
No. 2759, duly completed and executed, in relation to the transfer of the
Shares.
The Sellers commit themselves vis-a-vis Quiksilver, to take charge of the
practical aspects of the transfer, including in compliance with the provisions
of article 516-2 of the General Regulation of the French Autorite des marches
financiers and market rules relating to block trades, in such a manner that it
will be effective on the Date of the Transfer of the Remaining Skis Rossignol
Shares, and that the transfer will be valid and enforceable against third
parties as of such date.
3 - PRICE
This sale is approved for a price of EUR 19 per share proposed in the Tender
Offer, that is, a total price of
FOURTEEN-MILLION-TWO-HUNDRED-AND-FORTY-NINE-THOUSAND-TWO-HUNDRED-AND-TWO EUROS
(EUR 14,249,202), that is:
- - for the transfer of 248,162 Shares owned by Mr. Laurent Boix-Vives,
FOUR-MILLION-SEVEN HUNDRED-AND-FIFTEEN-THOUSAND-AND-SEVENTY-EIGHT EUROS (EUR
4,715,078),
- - for the transfer of 249,308 Shares owned by Mrs. Jeannine Boix-Vives,
FOUR-MILLION-SEVEN-HUNDRED-AND-THIRTY-SIX-THOUSAND-EIGHT-HUNDRED-AND-FIFTY-TWO
EUROS (EUR 4,736,852),
- - for the transfer of 51,244 Shares solely owned by Mrs. Sylvie Bernard,
NINE-HUNDRED-AND-SEVENTY-THREE-THOUSAND-AND-SIX-HUNDRED-AND-THIRTY-SIX EUROS
(EUR 973,636),
- - for the transfer of 51,244 Shares solely owned by Mrs. Christine Simon,
NINE-HUNDRED-AND-SEVENTY-THREE-THOUSAND-AND-SIX-HUNDRED-AND-THIRTY-SIX EUROS
(EUR 973,636),
- - for the transfer of 150,000 Shares solely owned by SDI,
TWO-MILLION-EIGHT-HUNDRED-AND-FIFTY-THOUSAND EUROS (EUR 2,850,000),
These sums will be payable beginning on the Date of the Transfer of the
Remaining Skis Rossignol Shares, with the understanding that the Sellers agree
in advance to use the amounts for the purpose of paying in full, by way of
compensation, the Capital Increase, which the Transferee accepts in accordance
with the Acquisition Agreement.
4 - POSSESSION
Beginning on the Date of the Transfer of the Remaining Skis Rossignol Shares,
all dividends, payment on advance payment on dividends, or any other sum
deriving from the Shares and which are to be distributed, will be entirely and
exclusively due to the Transferee.
5 - REPRESENTATIONS OF THE PARTIES
5.1 - Representations and guarantees by the Sellers
Each of the Sellers represents and guarantees the following, jointly with all
the other Sellers, to the benefit of Quiksilver:
- - As of the date hereof and until the Date of the Transfer of the Remaining Skis
Rossignol Shares, the Sellers will hold together all the rights conferred by the
full ownership of the Shares, which are wholly released and free from all
privilege, security, charges or other restrictions, limitation, collateral
security, pledges or rights by any third parties whatsoever ("CHARGES"). As a
consequence, (i) on the Date of the Transfer of the Remaining Skis Rossignol
Shares, the Transferee will be the valid owner of the Shares, free of all
Charges, and (ii) on this same date, the shares will be validly assigned and
transferred to the Transferee who will become their owner, and this transfer
shall be enforceable against third parties.
- - Except for the Shares, the Sellers do not hold as of the date hereof, and will
not hold on the Date of the Transfer of the Remaining Skis Rossignol Shares, any
direct or indirect share in the capital of the Company, with the exception of
the legal rights resulting from the agreements entered into pursuant to the
Acquisition Agreement and its exhibits; nor will they retain directly or
indirectly, any legal rights over the Company or any of its subsidiaries, with
the exception of Roger Cleveland Golf Company, Inc.
- - The Sellers have the necessary powers to enter into this Purchase Agreement
and to perform their obligations to this effect. This Purchase Agreement and all
related documents have been or will be duly executed by each of the Sellers, and
constitute with respect to each of them, valid and enforceable obligations in
accordance with their terms. Mr. Laurent Boix-Vives represents and personally
guarantees to the Parties and to the other signatories, that he has been duly
authorized by the relevant corporate entities of SDI, which he represents, to
execute this Purchase Agreement.
- - The Sellers have obtained as of the date hereof, the consents, approvals,
authorizations or renunciations necessary for the executions, and for the
complete performance of their obligations pursuant to this Purchase Agreement.
As of the date hereof, no judicial, arbitrative or administrative proceeding,
claim, trial or investigation preventing the Sellers from executing the Purchase
Agreement or from performing their obligations pursuant thereto is pending or
threatened. The execution of this Purchase Agreement, the consummation of the
Transfer it contemplates, and the performance by the Sellers of their
obligations pursuant to this Purchase Agreement (i) do not and shall not
conflict with or violate the provisions of the bylaws of SDI, of the Company or
its affiliates, nor shall they require the consent of any corporate body of any
of these companies, (ii) do not and shall not conflict with or violate any
statutory or regulatory provisions or any other administrative, judicial or
arbitral decision, (iii) do not and shall not conflict with or violate, or
create any right to revocation or annulment of any of the permits, consents or
authorizations necessary for the activity of the Company or any of its
subsidiaries, and (iv) do not and shall not conflict with or violate any
commitment or any obligation of the Company or its subsidiaries whatsoever, nor
will they provide any person with any right pursuant to any agreement to which
the Company or any of its subsidiaries is a party (including any change in the
expiration of any obligation, and any right of early termination or specific
performance).
5.2 - Representations of the Transferee
The Transferee represents:
- - that it has full capacity to enter into and be bound by this Purchase
Agreement and its sequels, and, more particularly, that it is not the
object of any liquidation procedure (procedure collective), nor in a
condition of non-payment or insolvency (cessation de paiement or
deconfiture);
- - that the person drafting this Purchase Agreement is exempted from
providing any further details regarding the Company's assets and
liabilities.
6 - DECLARATIONS FOR REGISTRATION
The registration tax will be paid by the Transferee.
7 - FEES
Unless otherwise agreed, each of the Parties shall bear the expenses and fees
incurred by it or on its behalf in connection with this Purchase Agreement and
the transactions contemplated herein, including advisory and brokerage fees.
8 - MISCELLANEOUS PROVISIONS
8.1 - ACTION BY QUIKSILVER
The Parties recognize that the present Purchase Agreement is part of a
contractual framework which includes the Acquisition Agreement and whose purpose
is the transfer by the Sellers of the interest they hold directly in Skis
Rossignol, to a holding corporation controlled by Quiksilver as of the date of
this Purchase Agreement; consequently, the Parties agree that any failure by the
Sellers to perform their obligations pursuant to this Purchase Agreement could
be claimed directly by Quiksilver and result in Quiksilver's indemnification,
which the Company explicitly accepts.
8.2 - REFERENCE TO THE ACQUISITION AGREEMENT
Articles 8.2 to 8.6, 8.9 and 8.10 of the Acquisition Agreement will be applied
mutatis mutandis to the present Purchase Agreement.
Executed in Lyon, on April 12, 2005
In six (6) originals
LAURENT BOIX-VIVES JEANNINE BOIX-VIVES
SYLVIE BERNARD CHRISTINE SIMON
THE SDI COMPANY REPRESENTED THE QUIKSILVER, INC. CORPORATION,
BY LAURENT BOIX-VIVES, REPRESENTED BY BERNARD
PRESIDENT MARIETTE, PRESIDENT
THE SKI EXPANSION SCA COMPANY, REPRESENTED
BY LAURENT BOIX-VIVES, MANAGER
Exhibit 2.7
--------------------------------
ROGER CLEVELAND
SHAREHOLDERS' AGREEMENT
--------------------------------
BETWEEN THE UNDERSIGNED:
MR. LAURENT BOIX-VIVES, born on August 30, 1926 in Brides les Bains (73570),
residing at 1, Boulevard du Marechal Joffre, 38000 Grenoble, France,
MS. JEANNINE BOIX-VIVES, born on December 25, 1927 in Montbonnot (38330),
residing at 1, Boulevard du Marechal Joffre, 38000 Grenoble, France,
MS. CHRISTINE SIMON, born on January 23, 1964 in Grenoble, residing at 1,
Boulevard du Marechal Joffre, 38000 Grenoble, France,
MS. SYLVIE BERNARD, born on January 23, 1964 in Grenoble, residing at 1,
Boulevard du Marechal Joffre, 38000 Grenoble, France,
SDI SOCIETE DE SERVICE ET DEVELOPPEMENT, a Swiss societe anonyme (corporation)
with share capital of CHF 500,000, with registered offices at 120 chemin de la
Rueyre, 1020, Renens, Switzerland ("SDI"), represented by Mr. Laurent
Boix-Vives, acting as President (Chairman and CEO),
acting jointly for the purposes of this Agreement,
(hereinafter referred to collectively as the "FAMILY GROUP"
and each as a "MEMBER OF THE FAMILY GROUP")
PARTY OF THE
FIRST PART,
AND
QUIKSILVER, INC., a Delaware corporation, with its registered offices at 15202
Graham Street Huntington Beach, California, United States of America,
represented by Mr. Bernard Mariette, acting in the capacity of President,
(hereinafter referred to as "QUIKSILVER"),
ROSSIGNOL SKI COMPANY, INC., a Delaware corporation, with its registered offices
at 306 South State Street, Dover, County of Kent, Delaware, represented by Mr.
Laurent Boix-Vives, duly authorized for the purposes of this Agreement,
(hereinafter referred to as "ROSSIGNOL SKI COMPANY"),
SKIS ROSSIGNOL SA, a societe anonyme (corporation) with share capital of EUR
49,792,256, with registered offices located at the place called "Le Menon",
Voiron (38500), France, registered with the Registry of Commerce and Companies
of Grenoble under number 056 502 958 and the shares of which are listed on
Eurolist of Euronext Paris under Euroclear France code 12041, represented by one
or the other of Ms. Sylvie Bernard and Ms. Christine Simon, duly authorized for
the purposes of this Agreement,
(hereinafter referred to as "SKIS ROSSIGNOL",
and together with Quiksilver and Rossignol
Ski Company, the "QUIKSILVER SHAREHOLDERS"),
PARTY OF THE SECOND PART,
(the Quiksilver Shareholders and the Family Group are hereinafter referred to
collectively as the "SHAREHOLDERS")
IN THE PRESENCE OF:
ROGER CLEVELAND GOLF COMPANY, INC., a California corporation, represented by Mr.
Laurent Boix-Vives, duly authorized for the purposes of this Agreement,
(hereinafter referred to as the "COMPANY"),
(each of the Members of the Family Group, Skis Rossignol, Quiksilver, Rossignol
Ski Company and the Company being hereinafter referred to individually as a
"PARTY" and collectively as the "PARTIES").
WHEREAS:
A. The Company's capital is made up of 290,224 common shares, of which
105,536 shares, or 36.37% of the share capital, are held by the Family
Group (the "FAMILY GROUP SHARES"), 32,980 shares, or 11.36% of the
share capital, are held by Skis Rossignol and 151,708 shares, or 52.27%
of the share capital, are held by Rossignol Ski Company, an indirect
100% subsidiary of Skis Rossignol (the shares held by Skis Rossignol
and Rossignol Ski Company being hereinafter referred to as the
"QUIKSILVER SHAREHOLDER SHARES").
B. Pursuant to an acquisition agreement dated as of the date of this
Agreement (the "ACQUISITION AGREEMENT"), Quiksilver and the Family
Group have agreed that the Family Group transfer its direct and
indirect holdings in Skis Rossignol to Quiksilver.
2
C. As a result of the re-formation of the management bodies of Skis
Rossignol pursuant to Article 5.2 of the Acquisition Agreement (the
"EFFECTIVE DATE",) Quiksilver shall have indirectly acquired control of
the Company.
D. The Family Group intends to remain a minority shareholder in the
Company until either of the parties exercises the call and put options
granted under this Agreement, or until such time as either of the
parties ceases to be a shareholder in the Company as a result of the
exercise of the rights of first refusal and the tag along rights
pursuant to this Agreement.
E. The Quiksilver Shareholders and the Family Group therefore wish to
agree on certain rules relating to the Company's administration, and to
create between them certain rights and obligations regarding the
assignment of their securities in the Company, according to the terms
defined in this Agreement.
NOW THEREFORE, THE FOLLOWING HAS BEEN AGREED:
ARTICLE 1 - DEFINITIONS
"AGREEMENT" means this Shareholders' Agreement.
"APPRAISAL PROCEDURE" has the meaning given to it under Article 5.8.
"BUSINESS DAY" means, with respect to France or the United States, any day other
than a Saturday, a Sunday or a day on which commercial banks or regulated
markets are closed for business during the entire day in Paris or New York,
respectively, it being specified that references herein to a "Business Day"
without reference to France or the United States shall be references to days
which are both French Business Days and US Business Days.
"CALL OPTION" has the meaning given to it under Article 5.7.
"CALL OPTION EVENT" has the meaning given to it under Article 5.7(b).
"CALL OPTION EXERCISE DATE" has the meaning given to it under Article 5.7(b).
"COMPANY" has the meaning given to it in the Preamble.
"DISPUTED PROVISIONS" has the meaning given to it under Article 7.8.
"DISPUTED VALUE" has the meaning given to it under Article 5.8(b).
"EFFECTIVE DATE" has the meaning given to it in the Preamble.
"EXERCISE PERIOD" has the meaning given to it in the Article 5.3(c).
3
"EXPERT" has the meaning given to it under Article 5.8(d).
"EXPIRATION DATE" has the meaning given to it under Article 2.2.
"FAMILY GROUP SHARES" has the meaning given to it in the Preamble, for which
greater details are provided under Article 5.7.
"FAMILY GROUP'S RIGHT OF FIRST REFUSAL" has the meaning given to it under
Article 5.4.
"FAMILY GROUP'S REPRESENTATIVE" has the meaning given to it under Article 7.5.
"INTERIM PERIOD" has the meaning given to it under Article 3.1.
"KNOWLEDGE OF THE FAMILY GROUP" means, with respect to any fact or event, the
knowledge of such fact or event by any of the Members of the Family Group.
"LIEN" means any encumbrance, charge, lien, security interest or other
restriction, limitation or third party right whatsoever.
"NOTICE OF CALL" has the meaning given to it under Article 5.7(d).
"NOTICE OF DISAGREEMENT" has the meaning given to it under Article 5.9(b).
"NOTICE OF FAMILY GROUP RFR" has the meaning given to it under Article 5.4(d).
"NOTICE OF FAMILY GROUP TRANSFER" has the meaning given to it under Article
5.3(c).
"NOTICE OF PUT" has the meaning given to it under Article 5.6(d).
"NOTICE OF QUIKSILVER RFR" has the meaning given to it under Article 5.3(d).
"NOTICE OF QUIKSILVER TRANSFER" has the meaning given to it under Article
5.4(c).
"NOTICE OF TAG-ALONG" has the meaning given to it under Article 5.5(d).
"OPTION EXERCISE PRICE" means, with respect to a transfer of Family Group Shares
pursuant to Articles 5.6 or 5.7, (i) if the Company's capital is composed
exclusively of common shares giving their holders the same rights, both in terms
of voting rights and in terms of financial rights, a price equal to the
proportion represented by the shares transferred in the total number of shares
issued by the Company, multiplied by the Company's Valuation, and (ii) if the
Company has issued different categories of equity securities, giving their
holders different rights, a price corresponding to the Parties' good faith
estimate of the proportion represented by the shares transferred in the total
value of the equity securities issued by the Company (which proportion may, in
the event of a disagreement, be appraised pursuant to the Appraisal Procedure),
multiplied by the Company's Valuation ; provided that the "COMPANY'S VALUATION"
shall mean the product of the Company's Average Profit, times Quiksilver's PER,
where (i) the "COMPANY'S AVERAGE PROFIT" means the weighted average of Roger
Cleveland's profits before non-
4
recurrent items in the three years preceding the Notice of Put or the Notice of
Call, as the case may be (the "NOTICE DATE"), adjusted for fiscal years that are
not twelve months periods, and applying a multiple of 1 for the most remote
year, 2 for the second year and 3 for the most recent fiscal year before the
Notice Date, provided that if the Notice Date and the date set out for payment
of the price should occur before the approval of the accounts of the most recent
fiscal year, payment of the price shall not be made, by exception to the
provisions of Articles 5.6 or 5.7, until the accounts for such year are
approved, and (ii) "QUIKSILVER'S PER" means the ratio equal to (x) the average
weighted by volumes of the daily weighted average of Quiksilver's stock price on
the New York Stock Exchange during the 60 trading days preceding the Notice
Date, divided by (y) Quiksilver's consolidated net earnings per share before
non-recurrent items, on an non-diluted basis, for the fiscal year preceding the
Notice Date, provided that Quicksilver's' PER may not be lower than 15X or
higher than 17X. Quiksilver shall provide the Family Group with the financial
statements used as a basis for determining the Company's Average Profit pursuant
to this paragraph.
"PILOT EXPANSION" means Pilot Expansion, a societe a responsabilite limitee
(limited liability company) with capital of EUR 16,000, with registered offices
at the place called "Le Menon", Voiron (38500), France, registered with the
Registry of Commerce and Companies of Grenoble under number 431 779 156.
"PLEDGE OF FAMILY GROUP SHARES" has the meaning given to it under Article 7.2.
"PLEDGE OF QUIKSILVER SHAREHOLDER SHARES" has the meaning given to it under
Article 7.2.
"PLEDGES" has the meaning given to it under Article 7.2.
"PREAMBLE" means (i) the introductory paragraphs A, B, C, D and E of this
Agreement and (ii) the designation of the Parties set forth at the top of this
Agreement.
"PUT OPTION" has the meaning given to it under Article 5.6.
"PUT OPTION EVENT" has the meaning given to it under Article 5.6(b).
"PUT OPTION EXERCISE DATE" has the meaning given to it under Article 5.6(b).
"QUIKSILVER SHAREHOLDER SHARES" has the meaning given to it in the Preamble.
"QUIKSILVER SHAREHOLDERS" has the meaning given to it in the Preamble.
"QUIKSILVER'S RIGHT OF FIRST REFUSAL" has the meaning given to it under Article
5.3.
"ROGER CLEVELAND US" has the meaning given to it in the Preamble.
"ROSSIGNOL SKI COMPANY" has the meaning given to it in the Preamble.
"SKIS ROSSIGNOL" has the meaning given to it in the Preamble.
5
"SUBSIDIARY" means, with regard to any legal person, any person or entity
controlled by that legal person according to the meaning provided by Article L.
233-3 of the French Commercial Code, including any joint-venture company
(societe en participation), economic interest groupings (groupements d'interet
economiques) or partnership of which that legal person is a member, provided
that Article L. 233-3 of the French Commercial Code shall be interpreted to
include, mutatis mutandis, entities that are not commercial companies (for
example, non-commercial entities, economic interest groupings or associations).
"TAG-ALONG RIGHT" has the meaning given to it under Article 5.5.
"THIRD-PARTY TRANSFEREE" has the meaning given to it under Article 5.3(c).
"TRANSFER" means any transaction involving a transfer of ownership, including,
without limitation, (i) sales and transfers (with or without consideration,
inter vivos or mortis causa), including any transfer by means of an adjudication
or by virtue of a judgment, (ii) transfers for the payment of goods or services
(dation en paiement), or by means of an exchange, partition, division, loan
(including specifically any loan of securities), sale with right of repurchase
(vente a remere), contribution, business contribution, liquidation, merger or
demerger, spin-off, split-off or any combination of these transactions, (iii)
transfers concerning ownership, usufruct or any other subdivision of ownership
rights or any other right concerning the object of the transfer (and including,
where applicable, any voting right or the right to receive dividends), and to
"TRANSFER" means the right to proceed with any of the foregoing transactions, or
to undertake to proceed with such a transaction.
"TRANSFER OF THE SHARES OF PILOT EXPANSION" means the sale by the Family Group
to Quiksilver of all of the shares in Pilot Expansion, pursuant to the
Acquisition Agreement.
ARTICLE 2 - TERM
2.1 With the exception of the provisions of Article 3 hereinafter, which
shall take effect immediately as of the date of this Agreement (but shall
expire, if applicable, on the date on which the Transfer of the Shares of Pilot
Expansion is cancelled (resolu)), this Agreement shall become effective as of
the Effective Date.
2.2 With the exception of rights and obligations that this Agreement
expressly states shall continue in effect after the Expiration Date, the
Parties' obligations shall terminate (i) on the date that the Family Group
Shares are transferred pursuant to the Call Option, the Put Option, Quiksilver's
Right of First Refusal or Quiksilver's Tag-Along Right, or on the date of
transfer of the entirety of Quiksilver Shareholder Shares pursuant to the Family
Group's Right of First Refusal, or (ii) on the date of Transfer by the Family
Group of the Family Group Shares to a Third-Party Transferee in the event that
the Quiksilver Shareholders do not exercise Quiksilver's Right of First Refusal,
or on the date of Transfer of the Quiksilver Shareholder Shares to a Third-Party
Transferee in the event that the Family Group does not exercise the Family
Group's Right of First Refusal, or (iii)
6
on any other date on which the Members of the Family Group, for any
reason whatsoever, cease to hold the Family Group Shares, or (iv) if
applicable, upon a cancellation of the Transfer of the Shares of Pilot
Expansion, or (v) upon expiration of the Company (the "EXPIRATION
DATE").
ARTICLE 3 - MANAGEMENT BEFORE EFFECTIVE DATE
3.1 The Family Group shall procure, from the date of this Agreement until
the Effective Date (the "INTERIM PERIOD"), that the Company be managed prudently
(en bon pere de famille), carry out activities in the ordinary course of
business and in compliance with past practice, and perform only those everyday
operations falling within their normal scope of activities.
(a) Without prejudice to the foregoing, the Family Group shall procure that
the Company neither resolve to nor carry out, during the Interim Period, unless
Quiksilver so agrees, (i) any distribution of profits or reserves, any
amortization or redemption of its capital, any purchase of its own limited or
unlimited shares, or any other distribution to their limited or unlimited
partners; (ii) any merger, contribution, demerger, spin-off, split-off or other
transaction affecting the Company's stock or equity, any issuance of securities
or equity, or any allocation of options to subscribe for or purchase stock;
(iii) any change to its bylaws; (iv) any application for or any early repayment
of a loan or any other type of financial obligation with a total value greater
than or equal to fifty thousand Euros (Euro 50,000); (v) any significant
acquisition or sale of assets; (vi) any acquisition or sale of a significant
equity interest (titres de participation), or the creation or dissolution of any
subsidiary or branch; (vii) any increase in the remuneration packages of its
senior executives, or the replacement of any senior executive; (viii) any
material change to its contractual or business practices; (ix) any termination
of or entry into a significant agreement, including any agreement which term
exceeds three years, any agreement containing an exclusivity or non-competition
clause, and any agreement reasonably likely to involve (through a single
agreement or through a series of related agreements) payment to or by the
Company of an amount greater than fifty thousand Euros (Euro 50,000); (x) the
granting of any loan, advance, security, pledge, or guarantee, or the creation
of any Lien, other than loans and advances made by the Company in favor of its
Subsidiaries in the normal course of business.
3.3 The Family Group shall ensure that the Company consult with Quiksilver,
during the Interim Period, prior to making any significant decision concerning
the Company (other than the transfer of shares pursuant to Article 5.1(d)).
3.4 The Family Group shall not Transfer any of the Company's shares during
the Interim Period. It shall procure that Ski Rossignol do not Transfer any of
the Company's shares during that same period.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF THE FAMILY GROUP
7
The Members of the Family Group represent and warrant the following to
Quiksilver, on the date of this Agreement and on the Effective Date:
(a) the Members of the Family Group together hold all of the rights
conferring full ownership (pleine propriete) over the Family Group Shares, and
Rossignol Ski Company holds all of the rights conferring full ownership (pleine
propriete) over the Quiksilver Shareholder Shares, free of any Liens.
(b) With the exception of the Family Group Shares and the Quiksilver
Shareholder Shares, the Company has not issued any shares or securities or other
rights representing, or giving access to the capital or voting rights of the
Company and there are no agreements or commitments which contemplate the grant
or the issue of such securities or rights.
(c) The Members of the Family Group have all requisite power to enter into
this Agreement and carry out their obligations hereunder. This Agreement, the
Pledges and all documents related hereto and thereto have been or will be duly
signed by each of the Members of the Family Group and they constitute valid and
enforceable obligations of each of them (or their successors and assigns
pursuant to Article 5.2 of this Agreement) in accordance with their terms, such
that (i) Rossignol Ski Company (or a company designated by Quiksilver for the
purposes of the Put Option or the Call Option pursuant to Articles 5.6 and 5.7
of this Agreement) shall, on the transfer date set out for the completion of the
Put Option or the Call Option, be the valid owner of the Family Group Shares,
free of any Liens, and (ii) the Family Group Shares shall on that same date be
validly transferred to Rossignol Ski Company (or to any company designated by
Quiksilver) which will become the owner of them, and this transfer shall be
enforceable against third parties. Mr. Laurent Boix-Vives represents and
warrants personally to the Parties that he has been duly authorized by the
competent company bodies of SDI, which he represents, for the purposes of
signing this Agreement.
(b) The Members of the Family Group have obtained all consents and all
approvals, authorizations and waivers necessary to sign and fully perform their
obligations under this Agreement. No legal, arbitral or administrative action,
claim, lawsuit, or investigation likely to prevent the Members of the Family
Group from signing this Agreement or performing their obligations hereunder is
currently pending, and to the Knowledge of the Members of the Family Group, no
such action, claim, lawsuit or investigation is likely to be brought against any
Member of the Family Group. The signature of this Agreement and the performance
by the Members of the Family Group of their obligations hereunder (i) do not
conflict with or violate any of the bylaws of SDI, the Company or Rossignol Ski
Company; (ii) do not conflict with or violate any legal or regulatory provision
or any administrative, legal or arbitral decision; (iii) do not conflict with or
violate, or create any rescission, termination or cancellation right under, any
permits, approvals or authorizations which are required for business purposes of
the Company or Rossignol Ski Company; and (iv) do not conflict with or violate,
or entitle a third party to any rights (including any acceleration or early
termination rights) under, any of the contracts entered into by the Company or
Rossignol Ski Company.
8
(c) There is no clause or provision which may prevent Skis Rossignol or
Rossignol Ski Company from fully enjoying the rights conferred on them
in their capacity as owners of the Quiksilver Shareholder Shares,
whether in the Company's bylaws, or in any contract or agreement
entered into by the Company, or under any obligation by which the
Company is bound.
4.2 REPRESENTATIONS AND WARRANTIES OF QUIKSILVER
Quiksilver represents and warrants the following to the Members of the Family
Group, on the date of this Agreement and on the Effective Date:
(a) Quiksilver has all requisite power to enter into this Agreement and
carry out its obligations hereunder. This Agreement, the Pledges and
all documents relating hereto and thereto have been or shall be duly
signed by Quiksilver, and they constitute valid and enforceable
obligations of Quiksilver in accordance with their terms, such that the
Put Option effectively entails, on the part of Quiksilver, an
obligation to buy (or to procure the purchase by an entity designated
by it for the purposes of the Put Option or the Call Option pursuant to
Articles 5.6 and 5.7) the Family Group Shares from the Family Group
pursuant to this Agreement. Mr. Bernard Mariette represents and
warrants personally to the Parties that he has been duly authorized by
the competent company bodies of Quiksilver, which he represents, for
the purposes of signing this Agreement.
(b) Quiksilver has obtained all consents and all approvals, authorizations
and waivers necessary to sign and fully perform its obligations under
this Agreement. No legal, arbitral or administrative action, claim,
lawsuit, or investigation likely to prevent Quiksilver from signing the
Agreement or performing its obligations hereunder is currently pending,
and to the Knowledge of Quiksilver, no action, claim, lawsuit or
investigation of this nature is likely to be brought against
Quiksilver. The signature of this Agreement and the performance by
Quiksilver of its obligations under this Agreement (i) do not conflict
with or violate any of the bylaws of Quiksilver; (ii) do not conflict
with or violate any legal or regulatory provision or any
administrative, legal or arbitral decision; (iii) do not conflict with
or violate, or create any rescission, termination or cancellation right
under, any permits, approvals or authorizations which are required for
business purposes of Quiksilver; and (iv) do not conflict with or
violate, or entitle a third party to any rights (including any
acceleration or early termination rights) under, any of the contracts
entered into by Quiksilver.
ARTICLE 5 - RESTRICTIONS ON THE TRANSFER OF SHARES
5.1 PRINCIPLE
(a) The Family Group Shares and the Quiksilver Shareholder Shares may only
be Transferred pursuant to Articles 5.2 to 5.7 hereinafter. Any
Transfer made according to a different procedure shall be null and
void, and shall be treated as such by the Company.
(b) The Parties agree, upon receipt of notice of a Transfer or a proposed
Transfer of Family Group Shares or Quiksilver Shareholder Shares in
accordance with this Agreement, to take the measures necessary to
release the Pledges, to the extent that such
9
a release is necessary for the purposes of the consummation of the
proposed Transfer. In the event of a transfer to a Third-Party
Transferee, the costs, fees and expenses associated with the release of
the Pledges shall be entirely borne by the Transferor, jointly with the
Transferee and (if the Transferor is a member of the Family Group) the
other Members of the Family Group. In the event of a Transfer to one of
the Members of the Family Group or to Quiksilver, these costs, fees and
expenses shall be borne by the Transferee.
(c) The Members of the Family Group undertake not to make any conveyance
inter vivos of the Family Group Shares free of charge (transmission a
titre gratuit), nor to bequest any of said Family Group Shares, except
to other Members of the Family Group in accordance with Article 5.2.
(d) The Shareholders agree that in order to involve Mr. Gregory Hopkins,
currently the President and Chief Operating Officer of the Company, in
the growth of the Company's earnings, the Family Group shall transfer
to Mr. Hopkins a number of common shares in the Company corresponding
to one percent (1%) of the Company's capital and voting rights, and
Quiksilver shall transfer to Mr. Hopkins a number of common shares in
the Company corresponding to two percent (2%) of the Company's capital
and voting rights, at a price equal to 99.17 euros per share or the
equivalent in US dollars, as calculated on the date of purchase of such
shares by Mr. Hopkins (or, alternatively, the Company shall carry out a
capital increase on the basis of the same valuation, allowing Mr.
Hopkins to acquire 3% of the Company's share capital), provided that
Mr. Hopkins shall enter into an agreement with Quiksilver, whereby (i)
Quiksilver shall grant Mr. Hopkins an option to sell all of the shares
so transferred to Quiksilver, to be exercised at the price and on the
dates set out in Article 5.6, (ii) Mr. Hopkins shall grant Quiksilver
an option to purchase all of his shares in the Company, to be exercised
at the price and on the dates set out in Article 5.7, and (iii)
Quiksilver shall have a right of first refusal with respect to the
Company Shares held by Mr. Hopkins, on terms and conditions equivalent
to those set out in Article 5.3.
5.2 TRANSFERS TO AFFILIATES
(a) Each of the Members of the Family Group may Transfer the Family Group
Shares to any other Member of the Family Group and to any company whose
capital and voting rights are 100% held by Members of the Family Group,
directly or indirectly, provided that (i) Quiksilver shall have been
notified of the terms of the Transfer (nature of the Transfer, price of
the Transfer (if it is a sale), identity of the Transferee and, where
applicable, all documents establishing that 100% of the Transferee's
capital and voting rights are held by the Family Group) at least eight
(8) days before the proposed Transfer date, (ii) the Transferee shall
have agreed in writing to be bound by, and comply with all of the
obligations of the Members of the Family Group under this Agreement,
provided that the Family Group shall be jointly liable in the event of
a breach of such obligations by the Transferee, and (iii) the
Transferee, if a legal person, shall remain (and the Family Group shall
procure that the Transferee remain) 100% held by the Family Group, and
shall not be Transferred to any third party (other than a director
receiving qualifying shares in connection with his appointment as a
director). The Members of the Family Group agree, at any time at
Quiksilver's request, to provide evidence that the Transferees
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which are legal entities and SDI are 100% held by natural persons who
are Members of the Family Group or by legal persons which are
themselves 100% held by the natural persons who are Members of the
Family Group, directly or indirectly (not taking into account
qualifying shares transferred to a third party in order for such party
to exercise his duties as a director).
(b) Rossignol Ski Company and Skis Rossignol may Transfer the Quiksilver
Shareholder Shares to any company whose capital and voting rights are
100% held by Quiksilver or Rossignol Ski Company, directly or
indirectly, provided that (i) the Family Group shall have been notified
of the terms of the Transfer (nature of the transfer, price of the
transfer (if it is a sale), identity of the Transferee and, where
applicable, all documents establishing that 100% of the Transferee's
capital and voting rights are held by Quiksilver) at least eight (8)
days before the planned Transfer date, (ii) the Transferee shall have
agreed in writing to be bound by, and comply with all obligations of
Quiksilver under this Agreement, provided that Quiksilver shall be
jointly liable in the event of a breach of such obligations by the
Transferee, and (iii) the Transferee, if a legal person, shall remain
(and Quiksilver shall procure that the Transferee remain) 100% held by
Quiksilver or Skis Rossignol, directly or indirectly, and shall not be
Transferred to any third party (other than a director receiving
qualifying shares in connection with his appointment as a director).
The Quiksilver Shareholders agree, at any time at the request of the
Family Group's Representative, to provide evidence that the Transferees
which are legal entities are 100% held by the Quiksilver Shareholders
or by one or several companies which are themselves 100% held by the
Quiksilver Shareholders, directly or indirectly (not taking into
account qualifying shares transferred to a third party in order for
such party to exercise his duties as a director).
(c) If the Transferee of shares transmitted pursuant to paragraph (a) or
paragraph (b) hereinabove should cease to be, directly or indirectly,
100% held by the Family Group or by the Quiksilver Shareholders,
whichever is applicable, in violation of the provisions of this
Article, the Transfer of Company Shares made to the Transferee shall be
fully and finally cancelled and rescinded (resolu), and the Transferee
shall have no further claims or rights against the Company or any other
Party, arising from this Agreement or the ownership of Company Shares.
(d) The Family Group Shares and the Quiksilver Shareholder Shares which are
Transferred pursuant to this Article 5.2 (including qualifying shares
transferred to a third-party in order for such third-party to exercise
his duties as a director) shall remain "Family Group Shares" and
"Quiksilver Shareholder Shares" for the purposes of this Agreement,
even though they shall no longer be directly held by the original
signatories of this Agreement. References herein to the "Family Group"
and the "Quiksilver Shareholders" shall be references not only to the
relevant Shareholders, but also to their respective Transferees
pursuant to this Article 5.2, jointly and severally with the relevant
Shareholders.
5.3 QUIKSILVER'S RIGHT OF FIRST REFUSAL
11
(a) From the First Closing Date until the expiry of a period of four (4)
years and six (6) months thereafter, Members of the Family Group shall
not Transfer any Family Group Shares to any Third-Party Transferee,
other than pursuant to Article 5.2(a) and Article 5.1(d) hereinabove.
(b) From the end of such four (4) years and six (6) months period and until
the seventh anniversary of this Agreement, any Transfer of Family Group
Shares other than Transfers pursuant to Article 5.2(a), (i) shall only
consist of Transfers of all, and not less than all, of Family Group
Shares together with all rights attached thereto, free of any Liens,
and (ii) shall give Rossignol Ski Company, or any other person
designated by Quiksilver, a right of first refusal with respect to all
of the Family Group Shares (and not some only) pursuant to this Article
5.3 ("QUIKSILVER'S RIGHT OF FIRST REFUSAL").
(c) Prior to any Transfer of Family Group Shares to any third party (the
"THIRD-PARTY TRANSFEREE"), except for Transfers authorized under
Article 5.2(a) above, the Transferor shall send a notice to Quiksilver
(the "NOTICE OF FAMILY GROUP TRANSFER"), in accordance with Article 7.4
of this Agreement, indicating (i) the identity of the proposed
Third-Party Transferee(s), (ii) if the proposed Third-Party Transferee
is a legal person, the name(s) of the person(s) controlling it
(directly and indirectly) within the meaning of Article L. 233-3 of the
French Commercial Code, (iii) the nature of the proposed Transfer (e.g.
sale, donation, contribution, merger, etc.), (iv) the price payable,
directly or indirectly, to the Family Group in consideration for the
Family Group Shares (together with the terms and conditions for
payment) or, if the consideration is in a form other than cash, an
estimate of the fair market value in euro of such non-cash
consideration, established by an Expert, and (v) all other material
terms and conditions of the proposed Transfer, and including (vi) the
irrevocable written agreement of the proposed Third-Party Transferee to
comply with this Agreement if the proposed Transfer is consummated,
including the following statement: "The undersigned certifies that he
is in bonis and has, in good faith, on his own behalf and without the
intent to resell the shares to any third party, made an offer to
purchase the shares of Roger Cleveland Golf Company, Inc. held by the
Boix-Vives family group. He represents that he has read the provisions
of the shareholders' agreement between the Boix-Vives family group and
Quiksilver, including those relating the call option with respect to
such shares, and understands and agrees that he shall be bound by such
provisions in accordance with their terms."
(d) The Notice of Family Group Transfer shall constitute an offer made by
the Family Group to Rossignol Ski Company and Quiksilver to purchase
all of the Family Group Shares. This offer may be accepted by
Quiksilver, by means of a "NOTICE OF QUIKSILVER RFR" issued in
accordance with Article 7.4, at any time during a period of thirty (30)
days from the date of the Notice of Family Group Transfer (the
"EXERCISE Period"). The Family Group shall have a period of fifteen
(15) days from receipt of a Notice of Quiksilver RFR within which to
renounce its proposed Transfer, in which case no Transfer of the Family
Group Shares shall take place, neither in favor of the proposed
Transferee, nor in favor of the Quiksilver Shareholders pursuant t to
their right of first refusal.
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(e) If Quiksilver accepts the offer made in accordance with the foregoing
paragraph and the Family Group does not renounce the proposed transfer,
Quiksilver (or any other person designated by Quiksilver in its Notice of
Quiksilver RFR) shall acquire from the Family Group, who shall sell, all of the
Family Group Shares, under the terms and conditions set out in the Notice of
Family Group Transfer, at a price in cash equal to: (i) if the planned Transfer
is a sale in which the price is paid exclusively in cash, the price agreed upon
by the Transferor and the Third-Party Transferee, as indicated in the Notice of
Family Group Transfer; (ii) if the Transfer is a transfer in which the
consideration does not entirely consist of cash (including in the event that the
planned Transfer is an exchange, a contribution, a merger or a division, or any
combination of these operations), the fair market value indicated by the
Transferor in the Notice of Family Group Transfer; or (iii) in the event that
Quiksilver disagrees on the calculation of such fair market value (such
disagreement to be set forth in the Notice of Quiksilver RFR), an amount
determined in accordance with the Appraisal Procedure.
(f) In the absence of a Notice of Quiksilver RFR, the Family Group may
Transfer the Family Group Shares to the Transferee, provided that said Transfer
shall be performed solely in accordance with the provisions of this Agreement,
and in strict compliance with the terms of the Notice of Family Group Transfer.
The Transfer shall be signed within forty-five (45) days from the expiration of
the Exercise Period (even if it is consummated on a later date pursuant to the
terms set out in the Notice of Family Group Transfer).
5.4 NON-TRANSFERABILITY, FAMILY GROUP'S RIGHT OF FIRST REFUSAL
(a) From the First Closing Date until the expiry of a period of four (4)
years and six (6) months thereafter, Skis Rossignol and Rossignol Ski Company
shall not Transfer any Family Group Shares to any Third-Party Transferee, other
than pursuant to Article 5.2(b) and Article 5.1(d) hereinabove.
(b) From the end of such four (4) years and six (6) months period and until
the seventh anniversary of this Agreement, any Transfer of Family Group Shares
other than Transfers pursuant to Article 5.2(a) shall give the Family Group a
right of first refusal ("FAMILY GROUP'S RIGHT OF FIRST REFUSAL").
(c) Prior to any Transfer of Quiksilver Shareholder Shares to a Third-Party
Transferee which gives right to a Family Group's Right of First Refusal,
Quiksilver shall send a notice to Quiksilver (the "NOTICE OF QUIKSILVER
TRANSFER"), in accordance with Article 7.4 of this Agreement, indicating (i) the
identity of the proposed Third-Party Transferee(s), (ii) if the proposed
Third-Party Transferee is a legal person, the name(s) of the person(s)
controlling it (directly and indirectly) within the meaning of Article L. 233-3
of the French Commercial Code, (iii) the nature of the proposed Transfer (e.g.
sale, donation, contribution, merger, etc.), (iv) the price payable, directly or
indirectly, to the Quiksilver Shareholders in consideration for the Quiksilver
Shareholder Shares (together with the terms and conditions for payment) or, if
the consideration is in a form other than cash, an estimate of the fair market
value in euro of such non-cash consideration, established by an Expert, and (v)
all other material terms and conditions of the proposed Transfer, and including
(vi) at Quiksilver's choice, either (x) an irrevocable written
13
agreement from the proposed Third-Party Transferee to replace the Quiksilver
Shareholders in the performance of their obligations under this Agreement if the
proposed Transfer is consummated, including an agreement to purchase the Family
Group Shares in the event that the Put Option is exercised, or (y) a
confirmation that the Quiksilver Shareholders remain bound by their obligations
under this Agreement, even if the planned Transfer is consummated.
(d) The Notice of Quiksilver Transfer shall constitute an offer made by the
Quiksilver Shareholders to the Family Group to purchase all the Quiksilver
Shareholder Shares which are the subject of the proposed Transfer. This offer
may be accepted by the Family Group, unless a Notice of Tag-Along or a Notice of
Put has already been served, by means of a "NOTICE OF FAMILY GROUP RFR" issued
in accordance with Article 7.4, at any time during a period of thirty (30) days
from the date of the Notice of Quiksilver Transfer (the "EXERCISE PERIOD").
Quiksilver shall have a period of fifteen (15) days from receipt of a Notice of
Family Group RFR within which to renounce its proposed Transfer, in which case
no Transfer of the relevant Quicksilver Shareholder Shares shall take place,
neither in favor of the proposed Transferee, nor in favor of the Family Group
pursuant to its right of first refusal.
(e) If the Family Group accepts the offer made in accordance with the
foregoing paragraph and Quiksilver does not renounce the proposed transfer, the
Family Group (or any other person designated by the Family Group in its Notice
of Family Group RFR) shall acquire from the Quiksilver Shareholders, who shall
sell, all of the Quiksilver Shareholder Shares which are the subject of the
proposed Transfer, under the terms and conditions set out in the Notice of
Quiksilver Transfer, at a price in cash equal to: (i) if the planned Transfer is
a sale in which the price is paid exclusively in cash, the price agreed upon by
the Transferor and the Third-Party Transferee, as indicated in the Notice of
Quiksilver Transfer; (ii) if the Transfer is a transfer in which the
consideration does not entirely consist of cash (including in the event that the
planned Transfer is an exchange, a contribution, a merger or a division, or any
combination of these operations), the fair market value indicated by the
Transferor in the Notice of Quiksilver Transfer; or (iii) in the event that the
Family Group disagrees on the calculation of such fair market value (such
disagreement to be set forth in the Notice of Family Group RFR), an amount
determined in accordance with the Appraisal Procedure.
(f) The Family Group Members understand and agree that the Notice of Family
Group RFR issued by the Family Group's Representative shall constitute a joint
and several undertaking made by all of the Family Group Members. The Family
Group Members shall be responsible for the allocation amongst themselves of any
Quiksilver Shareholder Shares acquired pursuant to their right of first refusal.
(g) In the absence of a Notice of Family Group RFR, or of a Notice of
Tag-Along, during the thirty (30)-day period provided for this purpose, the
Quiksilver Shareholders may Transfer the Quiksilver Shareholder Shares to the
Transferee, provided, however, that said Transfer shall be performed solely in
accordance with the provisions of this Agreement, and in strict compliance with
the terms of the Notice of Quiksilver Transfer. The Transfer shall be signed
within forty-five (45) days from the expiry of the Exercise
14
Period (even if it is consummated on a later date pursuant to the terms set out
in the Notice of Quiksilver Transfer).
(g) The Company shares acquired by the Family Group upon exercise of the
Family Group's Right of First Refusal set out in this Article shall be, once
they are acquired, "Family Group Shares" for the purposes of this Agreement. For
the avoidance of doubt, they shall be subject to the Put Option granted by
Quiksilver, and the Call Option granted by the Family Group.
(h) From the seventh (7th) anniversary of this Agreement, Company shares
held by the Quiksilver Shareholders or their authorized Transferees shall be
freely Transferable, including to any Third-Party Transferee.
5.5 TAG-ALONG RIGHT
(a) In the event that, from the expiration of a four (4) years and six (6)
months period after the date of this Agreement and until the seventh (7)
anniversary of this Agreement, the Notice of Quiksilver Transfer referred to in
Article 5.4(c) provides for a proposed Transfer of Quiksilver's control of the
Company, the Family Group shall have an option to Transfer all, but not less
than all, of the Family Group's Shares to the Transferee shown on the Notice of
Quiksilver Transfer (or any other person designated by Quiksilver), on terms and
conditions equivalent to those set forth in the Notice of Quiksilver Transfer
(the "TAG-ALONG RIGHT").
(b) The Family Group shall have a period of thirty (30) days from the
Notice of Quiksilver Transfer to notify Quiksilver of its decision to exercise
its Tag-Along Right (the "NOTICE OF TAG-ALONG"), provided that no Notice of Put
or Notice of Family Group RFR shall have been delivered before.
(c) The Notice of Tag-Along shall constitute a offer by the Family Group to
Transfer all of the Family Group Shares to the Transferee indicated in the
Notice of Quiksilver Transfer (or any other person designated by Quiksilver), on
the terms and conditions set out in the Notice of Quiksilver Transfer, provided
that Quiksilver shall, at any time during a period of fifteen (15) days from the
receipt of a Notice of Tag-Along, have a right to renounce its proposed
Transfer, in which case no Transfer of Family Group Shares and no Transfer of
Quiksilver Shareholder Shares shall take place.
(d) If the Family Group delivers a Notice of Tag-Along, it shall become a
party to the final Transfer agreements; it shall make the same representations
and warranties as the Quiksilver Shareholders; it shall bear any consequences,
positive or negative, of any price adjustment (pro-rata to its quota share of
the Transfer price), excluding any adjustment resulting from an earn-out clause
relating to continued service from Company officers subsequent to the Transfer
or the Company's performance subsequent to the Transfer; it shall bear the
consequences of any breach or violation of its representations or obligations
under the Transfer agreements. The Transfer of Family Group Shares and payment
of the price therefor shall be completed concurrently with the Transfer of the
Quiksilver Shareholder Shares, at an equal price per share, provided that, if
the
15
consideration received by the Quiksilver Shareholders is in a form other than
cash (in whole or in part), Quiksilver may decide, within fifteen (15) days from
the receipt of the Notice of Tag-Along, that the Family Group shall receive,
instead of its quota share of the non-cash consideration, the fair market value
in euro of such share of the non-cash consideration, determined on the basis of
the valuation of the relevant assets, as set forth in the Notice of Quiksilver
Transfer (or, if the Family Group disputes the appraisal set forth therein, as
determined by the Appraisal Procedure).
5.6 PUT OPTION
(a) Unless all of the Family Group Shares and all rights attached thereto
have been transferred to a Third-Party Transferee pursuant to Articles 5.3 or
5.5 and the Family Group no longer has any direct or indirect equity interest in
the Company, the Quiksilver Shareholders irrevocably promise to the Family Group
that they shall buy, at the Family Group's request, all of the Family Group
Shares (the "PUT OPTION"), in accordance with this Article 5.6.
(b) The Put Option thus granted may be exercised by the Family Group if no
Notice of Tag-Along and no Notice of Family Group RFR has been previously
delivered, (i) in the event of a continued failure by Quiksilver to perform any
of its obligations under this Agreement or the Pledge of Quiksilver Shareholder
Shares, and (ii) as of the expiration date of a period of four (4) years and six
(6) months after the date of this Agreement (the "PUT OPTION EXERCISE DATE" and,
together with the events listed in (i), a "PUT OPTION EVENT").
(c) The Family Group may only exercise the Put Option once and only for all
of the Family Group Shares (and not for a portion of them) at any time during
the period beginning on the occurrence of a Put Option Event and ending on the
date that no Put Option Event is continuing. If the relevant Put Option Event is
the occurrence of the Put Option Exercise Date, the Put Option may be exercised
at any time after the Put Option Exercise Date and no later than thirty (30)
months after that date. The Put Option shall become null and void if it has not
been previously exercised, (i) on the date of the Notice of Call, or (ii) at the
end of the thirty (30) months period referred to hereinabove.
(d) If the Family Group wishes to exercise the Put Option, it shall notify
Quiksilver of its intent to do so (the "NOTICE OF PUT") during the applicable
exercise period in the manner set forth in Article 7.4. The Quiksilver
Shareholders shall have a period of fifteen (15) days from receipt of the Notice
of Put in order to notify the Family Group of the amount of the Option Exercise
Price. The Notice of Put shall constitute an irrevocable commitment on the part
of the Family Group to sell the Family Group Shares to the Quiksilver
Shareholders or to any party designated by Quiksilver, which the Quiksilver
Shareholders accept. Except in the event that an Appraisal Procedure is
requested with respect to the Option Exercise Price, the Parties shall procure
that the transfer be consummated within sixty (60) days from the Notice of Put,
at the Option Exercise Price.
5.7 CALL OPTION
16
(a) The Family Group Members irrevocably promise the Quiksilver
Shareholders to sell, at Quiksilver' request, all of the Family Group Shares
(the "CALL OPTION"), in accordance with this Article 5.7.
(b) The Call Option thus granted may be exercised by Quiksilver (i) in the
event of a continued failure by any one of the Family Group Members to perform
any of its obligations under this Agreement or the Pledge of Family Group
Shares, (ii) in the event of the death or disability of all of the Family Group
Members who are natural persons, or (iii) as of the expiration date of a period
of seven (7) years after the date of this Agreement (the "CALL OPTION EXERCISE
DATE" and, together with the events listed in (i) and (ii) above, a "CALL OPTION
EVENT").
(c) Quiksilver may exercise the Put Option once and only for all of the
Family Group Shares (and not for a portion of them), at any time during the
period beginning on the occurrence of a Call Option Event and ending on the date
that no Call Option Event is continuing. If the relevant Call Option Event is
the occurrence of the Call Option Exercise Date, the Call Option may be
exercised at any time after the Call Option Exercise Date, without any
limitation of the term, provided, however, that if any tribunal or court of
arbitration were to challenge the validity of the Call Option as a result of the
absence of a time limit for the exercise thereof, the Call Option shall in any
event remain exercisable at any time during a period of twenty (20) years
following the Call Option Exercise Date.
(d) If the Quiksilver Shareholders wish to exercise the Call Option, they
shall notify the Family Group of their intent to do so (the "NOTICE OF CALL")
during the applicable exercise period, in the manner set forth in Article 7.4.
The Notice of Call shall set out the Option Exercise Price. It shall constitute
an irrevocable commitment by the Quiksilver Shareholders to purchase (or to
procure that a person designated by Quiksilver purchase) all of the Family Group
Shares, which the Family Group irrevocably commits to sell. Except in the event
that an Appraisal Procedure is requested with respect to the Option Exercise
Price, the parties shall procure that the transfer be consummated within sixty
(60) days from the Notice of Call, at the Option Exercise Price.
(e) For the avoidance of doubt, "Family Group Shares" as used in this
Article shall mean all of the Family Group's equity interests in the Company on
the date of Notice of Call, whether held directly or indirectly.
5.8 APPRAISAL PROCEDURE
(a) In the event of a disagreement between the Parties as to the
determination of the fair market value of the assets offered as consideration
for the Company shares, as set forth in Articles 5.3(e), 5.4(e) and 5.5(d), and
in the event of a disagreement between the Parties as to the determination of
the proportion represented by the Family Group Shares in the calculation of the
Option Exercise Price, the fair market value or the proportion used as a basis
for the calculation of the share price shall be determined in accordance with
the following procedure (the "APPRAISAL PROCEDURE").
17
(b) The Shareholder disputing, in good faith, the fair market value or the
proportion indicated in the notice received from the other Shareholder (the
"DISPUTED VALUE") shall notify the other Shareholder of his disagreement (the
"NOTICE OF DISAGREEMENT") within fifteen (15) days from the other Shareholder's
giving notice of the Disputed Value. The Notice of Disagreement shall indicate,
in as much detail as possible, the items of disagreement existing between the
Shareholders on the Disputed Value, and shall include the disputing
Shareholder's determination of the Disputed Value.
(c) The Shareholders shall then have a period of twenty (20) days from the
date of the Notice of Disagreement to come to an agreement on the Disputed
Value. In the event that an agreement is reached, the Transfer price of the
Company shares pursuant to Articles 5.3(e), 5.4(e) or 5.5(d), or the Option
Exercise Price, whichever is applicable, shall be determined on the basis of the
Disputed Value on which the Shareholders shall have agreed, and the Shareholders
shall have no further recourse against one another with respect to the
determination of the relevant Transfer price.
(d) Unless an agreement is reached during the foregoing twenty (20) day
period, each of the Shareholders shall appoint, within a period of ten (10)
days, an independent investment bank or firm of accountants with an established
international reputation as a valuer of securities (an "EXPERT"). The two
Experts shall be responsible for negotiating in good faith, to reach an
agreement as to the determination of the Disputed Value. Their duties shall be
limited to the determination of the Disputed Value, and shall not include any
other element relevant to the calculation of the price of the Company's shares.
In the event that an agreement is reached between the Experts, the Transfer
price of the Company shares pursuant to Articles 5.3(e), 5.4(e) or 5.5(d), or
the Option Exercise Price, whichever is applicable, shall be determined on the
basis of the Disputed Value on which the Experts shall have agreed, and the
Shareholders shall have no further recourse against one another with respect to
the determination of the relevant Transfer price.
(e) If a disagreement persists between the Experts on the Disputed Value,
following a period of twenty (20) days after the appointment of the last of the
two Experts to have been appointed, each of the Experts shall remit to his
client, within forty (40) days following the appointment of the last of the two
Experts to have been appointed, a written report stating, in all necessary
detail, its determination of the Disputed Value. If the difference between the
Disputed Values established by each of the two Experts is less than five per
cent. (5%) (calculated relative to the higher of the two equity values thus
calculated), then the Shareholders agree that the Disputed Value shall be deemed
to be the arithmetical mean of the two Disputed Values thus calculated.
(f) If the difference between the values determined by the Experts in
calculating the Disputed Value are equal to or greater than five percent (5%),
the Shareholders shall appoint, within ten (10) days after the remittance of the
last of the two Expert reports to have been submitted, a third Expert (or, if
the Shareholders fail to agree on the third Expert, then the third Expert shall
be appointed by the President of the Paris Commercial Court (ruling on an
interim basis (en refere) without appeal), at the request of either
Shareholder). The third Expert shall be sent the reports of the two Experts
mentioned in paragraph (e) hereinabove; he shall be instructed to determine the
Disputed Value within
18
twenty (20) days from his appointment. The Transfer price of the Company
shares, pursuant to Articles 5.3(e), 5.4(e) or 5.5(d), or the Option Exercise
Price, whichever is applicable, shall be determined on the basis of the Disputed
Value determined by the third Expert, provided that such Disputed Value shall
not be greater than the higher, nor less than the lower, of the values proposed
by the Experts designated by the Parties.
(g) Each Shareholder shall pay the fees and expenses of the Expert
appointed by it; the fees and expenses of the third Expert shall be paid in full
by the Shareholder whose Expert has proposed the appraisal of the Disputed Value
that is closest to the value ultimately determined by the third Expert.
ARTICLE 6 - MANAGEMENT OF THE COMPANY
6.1 MANAGEMENT OF THE COMPANY
(a) Mr. Laurent Boix-Vives shall be appointed, no later than fifteen (15)
days after the Effective Date, Chairman of the Board of the Company. As such, he
shall receive, directly or indirectly, a compensation in US dollars
corresponding to three hundred thousand (300,000) euros per year, for the entire
term of his office. He shall remain Chairman of the Board for so long as the
Family Group remains a shareholder in the Company.
(b) The Company's other managers shall be appointed by the shareholders'
general meeting of the Company and by its Board of Directors, pursuant to the
Company's bylaws and in accordance with applicable laws and regulations.
(c) The Family Group agrees, for the entire term of the Agreement, not to
interfere in the Company's management, other than for the purposes of exercising
its rights as a shareholder in the Company, which rights shall be exercised in
good faith and in the Company's interest, and for the purposes of Mr. Laurent
Boix-Vives' exercise of his duties pursuant to paragraph (a) hereinabove. In the
event of the death or disability of Mr. Laurent Boix-Vives, the Family Group
shall perform its role as a shareholder in close cooperation with Quiksilver,
and it shall provide Quiksilver with a proxy to represent it in the general
meetings of the Company whenever necessary, provided that Quiksilver shall
protect the economic value of the Family Group Shares.
(d) The Parties agree that the closing date of the Company's accounting
year shall not be changed without the Family Group's agreement.
6.2 ISSUANCE OF COMPANY'S EQUITY SECURITIES
(a) During the entire term of the Agreement, the Family Group Shares shall
be voted on all matters together with ordinary shares of the Company, voting as
a single class, pari passu, with each share being entitled to one vote.
(b) The Quiksilver Shareholders acknowledge and agree that the Family Group
shall have a preferential right to the subscription of shares or other equity
interests issued by the Company, in proportion to their percentage interest in
the common stock of the
19
Company, allowing it, if it chooses to subscribe to the issue, to maintain an
identical quota share of the voting rights and financial rights in the Company;
provided that (i) if the Company wishes to issue stock in consideration for an
asset other than cash, the Family Group shall be given the opportunity to make a
cash contribution in an amount determined in such a way that the Family Group's
percentage interest in the voting rights and financial rights in the Company
shall be maintained, based on a valuation of the Company agreed upon in good
faith between the Parties (or, if the Parties fail to reach an agreement, by
means of an appraisal pursuant to the Appraisal Procedure), and (ii) the
preferential right to subscribe provided in this Article 6.2(b) shall not apply
in the event that the Company issues to its employees and directors, or to
employees and directors of its subsidiaries, shares or other securities
representing or giving access to, immediately or in the future, the Company's
capital.
(c) The Quiksilver Shareholders shall not, during the entire term of this
Agreement, proceed with the issuance of any equity interests in the Company,
other than with the and prior written consent of the Family Group's
Representative.
6.3 DISTRIBUTIONS OF DIVIDENDS
The Quiksilver Shareholders shall procure that the Company distribute, each year
and for the entire term of this Agreement, an amount equal to or greater than
twenty percent (20%) of the distributable income earned by the Company in the
previous fiscal year, provided that such distribution shall always comply with
the provisions of corporate laws and regulations applicable to the Company.
6.4 TRANSFER OF FAMILY GROUP SHARES
(a) For the avoidance of doubt, "Family Group Shares" as used in connection
with the exercise of Quiksilver's Right of First Refusal, the Tag-Along Right,
the Call Option and the Put Option, shall include all of the equity interests
held directly or indirectly by the Family Group in the Company as of the date of
the relevant Transfer, including any shares acquired by the Family Group in
connection with the exercise of its preferential right to subscribe for
additional shares as set out in Article 6.2(b), any securities acquired by the
Family Group in the exercise of the Family Group's Right of First Refusal
pursuant to Article 5.4(h), and all of the Company's other securities subscribed
for or otherwise acquired by the Family Group.
(b) The Members of the Family Group warrant to Quiksilver that the Family
Group Shares transferred pursuant to Articles 5.3, 5.5, 5.6 et 5.7, shall, on
the date of their transfer, constitute all of their rights in the Company; they
warrant that the transfer price received by them pursuant to Article 5 shall be
paid to them in consideration for the transfer to the relevant transferee of all
of such rights, and they agree, in advance, to waive and not to exercise any
right or claim which they may have against the Company as a result of their
former capacity as shareholder in the Company.
ARTICLE 7 - MISCELLANEOUS PROVISIONS
7.1 TAX TREATMENT OF THE TRANSACTION
20
Each Member of the Family Group shall, within ten (10) days of any request sent
by Quiksilver to the Family Group's Representative, fully and accurately
complete and deliver to Quiksilver, a United States Internal Revenue Service
Form W-8BEN or any similar or successor form thereto representing that such
Member of the Family Group is a non-U.S. person and claiming the benefit of the
Convention Between the Government of the United States of America and the
Government of the French Republic for the Avoidance of Double Taxation and the
Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital, dated
as of August 31, 1994, as amended or supplemented from time to time (or any
successor thereto) with respect to any payments received under the terms of the
Call Option or the Put Option, as well as all distributions made by the Company
to Members of the Family Group.
7.2 PLEDGES
As security for its obligation to pay the Option Exercise Price under the Put
Option or the Call Option, and as security for certain obligations of Quiksilver
pursuant to that certain shareholders' agreement between Quiksilver and the
Family Group with respect to Ski Expansion, Rossignol Ski Company shall enter
into the pledge agreement set forth in APPENDIX 7.2(A) to this Agreement in
favor of the Family Group (the "PLEDGE OF QUIKSILVER SHAREHOLDER SHARES"). As
security for its obligation to deliver the Family Group Shares under the Put
Option or the Call Option, the Family Group shall enter into the pledge of
Family Group Shares set forth in APPENDIX 7.2(B) in favor of the Quiksilver
Shareholders (the "PLEDGE OF FAMILY GROUP SHARES" and, together with the Pledge
of Quiksilver Shareholder Shares, the "PLEDGES").
7.3 EXPENSES AND FEES
Unless otherwise agreed, each of the Parties shall bear the expenses and fees
incurred by it or for it in relation to this Agreement and the transactions
contemplated herein, including the professional fees of its advisors and
brokers.
7.4 NOTICES
(a) Any notices or communications pursuant to this Agreement shall be made
by fax or by registered mail with return receipt requested or by an express
courier service and must be addressed to the persons and addresses indicated
below, or to any other address or fax number indicated in writing, in the same
manner, by one Party to the other:
To Quiksilver or to the Quiksilver Shareholders
Quiksilver, Inc.
15202 Graham Street Huntington Beach,
California (United States of America)
Fax: + 1 (714) 889 4250
To the attention of: Mr. Charlie Exon
With a copy to:
21
Pierre Servan-Schreiber, Esq.
Avocat a la Cour
Skadden, Arps, Slate, Meagher & Flom LLP
68, rue du Faubourg Saint-Honore
75008 Paris, France
Fax: +33.1.55.27.11.99
To the Family Group:
Mr. Laurent Boix-Vives
1, Boulevard du Marechal Joffre,
38000 Grenoble
Fax: +33.4.76.47.73.31
With a copy to:
Jean-Philippe Delsol, Esq.
Avocat a la Cour
Delsol et Associes
12, quai Andre Lassagne
69001 Lyon
Fax: +33.4.72.10.20.31
(b) The date of receipt of the notice shall be deemed to be the date
when the fax or registered letter is received or the delivery date by express
courier, as attested by the relevant delivery form, provided that if the receipt
of a notice takes place on a day that is not a US Business Day (when this
pertains to a notice addressed to the Quiksilver Shareholders) or a French
Business Day (when this pertains to a notice addressed to the Family Group) or
takes place outside normal office hours in the United States or in France, as
applicable, then such notice shall be deemed to have been received on the
opening date and time immediately following receipt of the correspondence. Any
correspondence addressed to the Family Group at the address or fax number
hereinabove shall be deemed simultaneously received by each of the Members of
the Family Group, and the Members of the Family Group shall have no recourse
against the Quiksilver Shareholders for sending notices solely to the Family
Group's Representative.
7.5 FAMILY GROUP'S REPRESENTATIVE
(a) The Family Group hereby appoints Mr. Laurent Boix-Vives (the
"FAMILY GROUP'S REPRESENTATIVE") as its representative, and gives him all
powers, to receive any notice hereunder, to take any necessary measures in the
name of and on behalf of the Members of the Family Group in connection with the
execution of this Agreement and the performance and completion of all of the
transactions contemplated herein and, if necessary, to modify this Agreement and
waive any and all rights under this Agreement. Quiksilver may rely on any action
undertaken by the Family Group's Representative on behalf of the Family Group;
it will not entail any correspondence or notice delivered in
22
connection with this Agreement by any Member of the Family Group other than the
Family Group's Representative (except as provided in paragraph (b) below). The
representations made, the agreements concluded, and the actions undertaken by
the Family Group's Representative pursuant to this clause shall have binding
force against each of the Members of the Family Group.
(b) Should Mr. Laurent Boix-Vives be impeded from acting as the Family
Group' Representative for any reason whatsoever, the Family Group hereby appoint
Ms. Jeannine Boix-Vives as the replacement for Family Group's Representative.
The appointment of Ms. Jeannine Boix-Vives as the Family Group's Representative
shall become effective as of the date on which Quiksilver is notified of such
appointment by Ms. Jeannine Boix-Vives in the manner set forth in Article 7.4.
Subsequently, should Ms. Jeannine Boix-Vives be impeded from acting for any
reason whatsoever, the Members of the Family Group hereby appoint SDI as the
Family Group's Representative (or, should SDI have been dissolved by that date,
Ms. Christine Simon shall be appointed -- and, if Ms. Christine Simon is
impeded, Ms. Sylvie Bernard shall be appointed). The appointment of SDI, of Ms.
Christine Simon, or of Ms. Sylvie Bernard as the Family Group's Representative
shall become effective as of the date on which Quiksilver is notified of such
appointment by SDI's legal representative, by Ms. Christine Simon or by Ms.
Sylvie Bernard, respectively, in each case in the manner set forth in Article
7.4 (provided that, if SDI should issue several contradictory notices in such a
context, only the first notice shall be valid).
7.6 ASSIGNMENT
(a) No Party may assign or transfer, in any way whatsoever, its rights
and obligations under this Agreement without the prior written consent of the
Family Group's Representative (when this pertains to a transfer by the
Quiksilver Shareholders) or from Quiksilver (when this pertains to a transfer by
any of the Quiksilver Shareholders).
(e) As an exception to the foregoing, (i) the Members of the Family
Group shall be entitled to transfer all (but not some only) of their rights and
obligations pursuant to this agreement (except for the right of representation
referred to in Article 7.5), provided that the transferor shall remain jointly
liable with the transferee for the performance by the transferee of all of the
transferor's obligations pursuant to this Agreement, and (ii) the Quiksilver
Shareholders shall be entitled to assign all (but not some only) of their rights
and obligations under this Agreement to any company controlled by Quiksilver
within the meaning of Article L. 233-3 of the Commercial Code.
7.7 SUCCESSORS AND BENEFICIARIES
Any and all rights and obligations pursuant to this Agreement are actively and
passively, jointly and severally binding on the Parties' successors, heirs,
beneficiaries, and legal representatives, provided that this Agreement is
concluded in consideration of the person of the Members of the Family Group and,
consequently, the rights conferred to the Members of the Family Group by this
Agreement shall not be assigned, transferred or conveyed in any manner
whatsoever, except to another Member of the Family Group.
23
1.2 SEVERABILITY
If any of the provisions of this Agreement becomes null, illegal, unenforceable,
or incapable of being performed in any manner whatsoever (hereinafter "DISPUTED
PROVISIONS"):
(a) the validity and enforceability of the other provisions shall not be
affected or compromised in any way; and
(b) the Parties shall negotiate in good faith in order to replace the
Disputed Provisions with valid and enforceable provisions that are as close as
possible to the Parties' common intent or, if such common intent cannot be
determined, the intent of those among the Parties which the Disputed Provision
is supposed to protect.
1.3 MODIFICATIONS AND WAIVERS
(a) This Agreement shall only be modified by a written agreement duly
signed by Quiksilver and the Family Group's Representative.
(b) Any waiver by a Party to one of its rights pursuant to this Agreement
shall only take effect if it was made in writing, and shall be strictly
interpreted.
No waiver of any one of the provisions of this agreement shall constitute a
waiver of any other provision of this Agreement other than the provision which
was waived.
7.10 APPLICABLE LAW - COMPETENT COURT
This Agreement and its interpretation are exclusively governed by French law.
Any dispute arising in connection with this Agreement, including the validity,
the interpretation and the performance hereof, and which cannot be resolved
amicably, shall fall under the exclusive jurisdiction of the courts within the
jurisdiction of the Paris Court of Appeals.
Signed in Lyon, on April 12, 2005, in eight (8) copies.
- ----------------------------------
FOR QUIKSILVER, INC.
by Mr. Bernard Mariette
- ----------------------------------
FOR ROSSIGNOL SKI COMPANY, INC.
24
by Mr. Laurent Boix Vives
- ----------------------------------
FOR SKIS ROSSIGNOL SA
by
- ----------------------------------
FOR SDI SOCIETE DE SERVICE ET
DEVELOPPEMENT
by Mr. Laurent Boix Vives
- ----------------------------------
MR. LAURENT BOIX-VIVES
- ----------------------------------
MS. JEANNINE BOIX-VIVES
- ----------------------------------
MS. CHRISTINE SIMON
- ----------------------------------
MS. SYLVIE BERNARD
- ----------------------------------
FOR ROGER CLEVELAND, GOLF COMPANY, INC.
by Mr. Laurent Boix Vives
25
EXHIBIT 3.2(b)
UNLIMITED PARTNERS
WITHDRAWAL AGREEMENT
BETWEEN THE UNDERSIGNED:
MR. LAURENT BOIX-VIVES, born on August 30, 1926 in Brides les Bains (73570),
residing at 1, Boulevard du Marechal Joffre, 38000 Grenoble,
MS. JEANNINE BOIX-VIVES, born on December 25, 1927 in Montbonnot (38330),
residing at 1, Boulevard du Marechal Joffre, 38000 Grenoble,
MS. CHRISTINE SIMON, born on January 23, 1964 in Grenoble, residing at 1,
Boulevard du Marechal Joffre, 38000 Grenoble,
MS. SYLVIE BERNARD, born on January 23, 1964 in Grenoble, residing at 1,
Boulevard du Marechal Joffre, 38000 Grenoble,
(hereinafter together referred to as the
"WITHDRAWING PARTNERS" and each a "WITHDRAWING PARTNER")
ON THE ONE HAND,
AND
PILOT EXPANSION, a societe a responsabilite limitee with capital of EUR 16,000,
with its registered office at Voiron (38500), "Le Menon", registered with the
Grenoble Commerce and Company Registry under number 431 779 156, represented by
Mr. Laurent Boix-Vives in his capacity as Manager (Gerant),
(hereinafter referred to as "PILOT EXPANSION" and, together with the
Withdrawing Partners, the "UNLIMITED PARTNERS" and each an "UNLIMITED PARTNER")
ON THE OTHER HAND,
IN THE PRESENCE OF:
SKI EXPANSION, a societe en commandite par actions with capital of EUR
8,096,624, with its registered office at Voiron (38500), "Le Menon", registered
with the Grenoble Registry of Commerce and Companies under number 070 501 374,
represented by Mr. Laurent Boix-Vives in his capacity as Manager (Gerant),
(hereinafter referred to as the "COMPANY")
AND OF
QUIKSILVER, INC., a Delaware Corporation, with its registered office at 15202
Graham Street, Huntington Beach, California, U.S.A., represented by Mr. Bernard
Mariette, acting as President,
1
(hereinafter referred to as "QUIKSILVER" or the "ACQUIRER")
(each of the Sellers and the Acquirer hereinafter being individually referred to
as a "PARTY" and collectively the "PARTIES").
WHEREAS:
A. The Unlimited Partners (associes commandites) each hold ten (10) interests
of the Company, representative of their business contribution to the
Company, which do not enter into the composition of the Company's capital.
B. In connection with the transfer by the Withdrawing Partners to Quiksilver
of their direct and indirect interests in Skis Rossignol, a societe anonyme
with capital of EUR 49,792,256, with its registered office at Voiron, "Le
Menon", registered with the Grenoble Registry of Commerce and Companies
under number 056 502 958 and whose shares are listed on the Eurolist of
Euronext Paris, Quiksilver showed its interest in acquiring control of the
Company.
C. The Parties have agreed that this acquisition would be carried out by means
of (i) the withdrawal of the Withdrawing Partners from the Company, in
their capacity as business contributors, and the consecutive cancellation
of their unlimited partner interests in the Company, pursuant to this
Withdrawal Agreement, followed by (ii) the transfer to Quiksilver by the
Withdrawing Partners of all of the interests (parts sociales) of Pilot
Expansion (the "PILOT EXPANSION INTERESTS").
D. This Unlimited Partners Withdrawal Agreement (the "WITHDRAWAL AGREEMENT")
sets forth the terms and conditions of the withdrawal of the Withdrawing
Partners and of the cancellation of their unlimited partner interests in
accordance with (i) above.
CONSEQUENTLY, IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE 1 - WITHDRAWAL OF THE WITHDRAWING PARTNERS
1.1 The Withdrawing Partners shall hereby cease, as from the date hereof, to
contribute their business to the Company. Consequently, their unlimited partner
interests, which represent their business contribution, are cancelled.
1.2 Pilot Expansion shall remain the sole unlimited partner of the Company.
1.3 This Withdrawal Agreement shall not entail the Company's dissolution.
ARTICLE 2 - COMPENSATION
2.1 In compensation for their withdrawal and for the cancellation of their
unlimited partner interests, the Withdrawing Partners shall receive from the
Company
2
an indemnity, for all of their unlimited partner interests, equal to forty
thousand (40,000) euros (the "INDEMNITY").
2.2 It is agreed among the Parties that the Indemnity shall be paid to the
Withdrawing Partners by the Acquirer, in the name of and on behalf of the
Company, concurrently with the payment to the Withdrawing Partners concerned of
the transfer price of the Pilot Expansion Interests. On the payment date, the
Acquirer shall acknowledge a claim of an equal amount on the Company. The
payment of the Indemnity shall be made on the account indicated to the Acquirer
for the payment of the transfer price of the Pilot Expansion Interests. The
Withdrawing Partners shall allocate the Indemnity among themselves and the
Acquirer and the Company shall be entirely freed from their obligation to pay
the Indemnity once such Indemnity has been paid pursuant to this Article 2.2.
2.3 In the event of the cancellation of the transfer to the Acquirer of the
Pilot Expansion Interests, the Withdrawing Partners shall ensure that the
Company's debt towards the Acquirer, resulting from the payment by the Acquirer
of the Indemnity due by the Company, be paid concurrently with the reimbursement
to the Acquirer of the transfer price of the Pilot Expansion Interest, and
according to the same terms.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
The Withdrawing Partners represent and warrant the following, to the benefit of
Pilot Expansion, the Company and the Acquirer:
3.1 The ten (10) unlimited partner interests held by each of the Unlimited
Partners on the date herein are the only unlimited partner interests of the
Company. The Withdrawing Partners have full property over such interests, which
are free from any lien, security, encumbrance or other restriction, limitation,
pledge, collateral or third-party right whatsoever, and they have all powers for
the purposes of bringing about their cancellation pursuant to this Withdrawal
Agreement. This Withdrawal Agreement has been duly executed by each of them and
constitutes against each of them valid and enforceable obligations pursuant to
its terms.
3.2 The execution of this Withdrawal Agreement by the Parties carries with it
the final cancellation, on the date hereof, of all of the unlimited partner
interests in the Company held by the Withdrawing Partners, and such cancellation
shall be enforceable against third parties, without need to obtain any consent,
approval, authorization or waiver whatsoever, nor to undertake any step that was
not obtained or undertaken, other than the filing of the amended Company bylaws
with the competent Commercial Court's registrar.
3.3 No judicial, arbitral, or administrative proceeding, nor any request, trial
or investigation which could prevent the Withdrawing Partners, Pilot Expansion
or the Company from executing this Withdrawal Agreement or performing their
obligations pursuant thereto, is pending or foreseeable by reason of any fact or
event.
3.4 The execution of this Withdrawal Agreement, the consummation of the
transactions contemplated herein and the performance by the Withdrawing
Partners, Pilot Expansion and the Company of all of their obligations herein (i)
do not and shall not conflict with or violate any provision of the bylaws of the
Company or of Pilot
3
Expansion and do not and shall not require the consent of a corporate body of
any of these companies, (ii) do not and shall not conflict with or violate any
statutory or regulatory provision or any administrative, judicial or arbitral
decision, and (iii) do not and shall not conflict with or violate any commitment
or any obligation of Pilot Expansion or the Company whatsoever.
ARTICLE 4 - MISCELLANEOUS PROVISIONS
4.1 The Withdrawing Partners shall ensure, as of the date hereof, that they
submit to the general meeting of the limited partners (associes commanditaires)
of the Company a resolution approving the withdrawal of the Withdrawing Partners
and the cancellation of their unlimited partner interests, and that they obtain
the unanimous agreement from the meeting on this resolution; furthermore, they
shall ensure that the general meeting of the limited partners and such meeting
shall decide on an amendment to the Company bylaws, in particular in order to
amend Article 3 thereof and any other concerned provision of such bylaws to the
new capacity of Pilot Expansion as sole unlimited partner, and to suppress the
provision stipulating the loss of Pilot Expansion's capacity as unlimited
partner in the event of the amendment of certain provisions of Pilot Expansion's
bylaws; pursuant to this agreement, the Unlimited Partners shall already grant
their consent to the resolutions taken to such end in their capacity as
unlimited partner, and they furthermore approve the amendment to the Pilot
Expansion bylaws directed at rendering possible the transfer to the Acquirer of
all of the Pilot Expansion Interests.
4.2 With the exception of their claim to the Indemnity payment, the Withdrawing
Partners have no right over the Company or over Pilot Expansion, nor any claim
against any of these companies in relation to their past capacity as unlimited
partner, and they waive in advance any right or claim that they could derive
from such capacity. However, the Withdrawing Partners shall remain liable for
the Company's liabilities in accordance with applicable laws and regulations; in
the event that their liability is incurred in this regard, they shall retain any
claim that they may have against Pilot Expansion.
4.3 In the event that an administrative, judicial or arbitral decision would
consider that the unlimited partner interests held by the Withdrawing Partners,
or any right attached to such interests, survived the execution of this
Withdrawal Agreement, the Parties agree, as may be needed, that this Withdrawal
Agreement carries with it the transfer by the Withdrawing Partners to Pilot
Expansion, on the date hereof, of their unlimited partner interests and of all
the rights that may attach to them, the participation of all of the Unlimited
Partners to this Withdrawal Agreement being valid as unanimous approval by the
unlimited partners of such transfer, pursuant to Article 3.2 of the Company
bylaws.
4.4 The Acquirer or the Company shall bear the cost of all of the registration
fees and stamp duties that may be payable in connection with this Withdrawal
Agreement and the transactions contemplated herein, which would not have already
been taken into account in the calculation of the Indemnity.
4.5 The rights and obligations of the Acquirer and of the Withdrawing Partners
under this Withdrawal Agreement may only be assigned or transferred, in any
manner whatsoever (including by means of merger, spin-off or transfer at no
charge) jointly
4
with the rights and obligations of the Acquirer or of the concerned Withdrawing
Partners pursuant to the agreement relating to the transfer of the Pilot
Expansion Interests, as referred to herein.
4.6 If any of the provisions of this Withdrawal Agreement were to be void,
illegal or not enforceable in any manner whatsoever (the "CONTESTED
PROVISIONS"), the validity and the enforceability of the other provisions shall
not in any way be affected or compromised, and the Parties shall negotiate in
good faith in order to replace the Contested Provisions by provisions that are
valid and enforceable and as close as possible to the common intent of the
Parties or, if such common intent cannot be determined, to the intent of those
of the Parties that the Contested Provisions were designed to protect.
4.7 This Agreement and its interpretation are exclusively governed by French
law. Any dispute arising in connection with this Agreement, including the
validity, the interpretation and the performance thereof, and which cannot be
resolved amicably, shall fall under the exclusive jurisdiction of the courts
within the jurisdiction of the Paris Court of Appeals.
Executed in Paris, on April 12, 2005,
in six (6) originals.
- --------------------------------------
FOR QUIKSILVER, INC.:
by Mr. Bernard Mariette
- --------------------------------------
FOR PILOT EXPANSION SARL:
by Mr. Laurent Boix-Vives
- --------------------------------------
FOR SKI EXPANSION SCA:
by Mr. Laurent Boix-Vives
- --------------------------------------
MR. LAURENT BOIX-VIVES
- --------------------------------------
MS. JEANNINE BOIX-VIVES
5
- --------------------------------------
MS. CHRISTINE SIMON
- --------------------------------------
MS. SYLVIE BERNARD
6
EXHIBIT 8.8
PILOT EXPANSION
PURCHASE AGREEMENT
BETWEEN THE UNDERSIGNED:
MR. LAURENT BOIX-VIVES, born on August 30, 1926 in Brides les Bains (73570),
residing at 1, Boulevard du Marechal Joffre, 38000 Grenoble,
MS. JEANNINE BOIX-VIVES, born on December 25, 1927 in Montbonnot (38330),
residing at 1, Boulevard du Marechal Joffre, 38000 Grenoble,
MS. CHRISTINE SIMON, born on January 23, 1964 in Grenoble, residing at 1,
Boulevard du Marechal Joffre, 38000 Grenoble,
MS. SYLVIE BERNARD, born on January 23, 1964 in Grenoble, residing at 1,
Boulevard du Marechal Joffre, 38000 Grenoble,
acting jointly for the purposes of this Agreement,
(hereinafter
together referred to as "SELLERS" and each a "SELLER")
ON THE ONE HAND,
AND
QUIKSILVER, INC., a Delaware corporation, with registered offices located at
1052 Graham Street, Huntington Beach, California, U.S.A., represented by Mr.
Bernard Mariette, acting as President,
(hereinafter referred to as "QUIKSILVER" or the "ACQUIRER")
ON THE OTHER HAND,
IN THE PRESENCE OF:
PILOT EXPANSION, a societe a responsabilite limitee with capital of EUR 16,000
euros, with registered offices at Voiron (38500), "Le Menon," registered with
the Grenoble Registry of Commerce and Companies under number 431 779 156,
represented by Mr. Laurent Boix-Vives as Manager,
(hereinafter referred to as "PILOT EXPANSION" or the "COMPANY")
(each of the Sellers and the Acquirer being hereinafter referred to as a "PARTY"
and together as the "PARTIES").
MWHEREAS:
A. The Sellers together hold 1,600 (one thousand six hundred) interests of
Pilot Expansion (hereinafter the "PILOT EXPANSION INTERESTS") of a nominal
value of ten (10) euros each, fully paid up, representing the entirety of
Pilot Expansion interests, divided among them in the manner described in
Exhibit C hereto.
B. Pursuant to an acquisition agreement dated the date hereof (the
"ACQUISITION AGREEMENT"), the Sellers, together with SDI Societe de Service
et Developpement, a Swiss societe anonyme with share capital of CHF
500,000, with registered offices at 120 chemin de la Rueyre, 1020, in
Renens, Switzerland ("SDI"), agreed to the sale to Quiksilver of their
direct and indirect interests in Skis Rossignol, a societe anonyme with
share capital of 49,792,256 euros, with registered offices at Voiron
(38500), "Le Menon", registered with the Grenoble Registry of Commerce and
Companies under number 056 502 958 and whose shares are listed on the
Eurolist of Euronext Paris ("SKIS ROSSIGNOL").
C. Pursuant to the Acquisition Agreement, the Sellers and SDI agreed to sell
to Quiksilver, and Quiksilver agreed to acquire, as of the date hereof, the
control of Ski Expansion, a societe en commandite par actions with capital
of EUR 8,096,624, with registered offices at Voiron (38500), "Le Menon",
registered with the Grenoble Registry of Commerce and Companies under
number 070 501 374 ("SKI EXPANSION"), which holds approximately 38.43% of
the shares and 49.90% of the voting rights of Skis Rossignol, by means of
(i) the sale by the Sellers and SDI of limited interests representing
approximately 71.53% of the capital of Ski Expansion, (ii) of the
withdrawal by the Sellers of Ski Expansion, and the respective cancellation
of their unlimited interests, and (iii) the sale by the Sellers to
Quiksilver of the whole of Pilot Expansion's interests, which became the
sole unlimited partner of Ski Expansion.
D. This Agreement (the " AGREEMENT"), sets forth the terms and conditions of
the sale of Pilot Expansion Interests.
CONSEQUENTLY, IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE 1 - SALE OF PILOT EXPANSION INTERESTS
1.1 The Sellers sell to the Acquirer that acquires, as of the date hereof, 1,600
(one thousand six hundred) interests representing the entirety of interests of
Pilot Expansion, free from any liens, securities, encumbrances or other
restrictions, limits or third party rights whatsoever.
1.2 The Acquirer shall be the owner of the Pilot Expansion Interests as of the
date hereof. The Acquirer shall, as of the date hereof, be assigned all rights
and obligations in connection with the Pilot Expansion Interests.
1.3 The sale of the Pilot Expansion Interests is subject to the condition
subsequent of the non-obtaining of the authorizations necessary for the
consummation of the
1
acquisition of Skis Rossignol by Quiksilver in accordance with laws and
regulations applicable in France and abroad, regulating mergers of corporations
or in more general terms free competition, including Articles L. 430-1 and
following of the Commercial Code and decree number 2002-689 of April 30, 2002,
Council Regulation number 4064/89 of December 21, 1989 concerning the
supervision of mergers between corporations, as modified, as well as the United
States Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
ARTICLE 2 - PRICE
(a) The sale of the Pilot Expansion Interests is effected and accepted for a
total price of ten thousand (10,000) euros (the "PURCHASE PRICE").
(b) The payment of the Purchase Price occurs immediately upon the execution of
this Agreement.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
The Sellers represent and guarantee the following, for the benefit of the
Acquirer, Pilot Expansion and Ski Expansion:
3.1 The Pilot Expansion Interests held by each of the Sellers as of the date
hereof are the only interests of the Company. The Sellers have full property
over such interests, which are free of all liens, securities, encumbrances or
other restrictions, limits, pledges or any third party rights whatsoever, and
they have all powers for the purposes of selling them, in accordance with this
Agreement. This Agreement has been duly executed by each of them, and
constitutes against each of them valid and enforceable obligations pursuant to
its terms.
3.2 The execution of this Agreement by the Parties carries with it the final
sale, as of the date hereof, of the entirety of Pilot Expansion Interests to the
Acquirer, and this sale shall be enforceable against third parties, without the
need to obtain any consent, approval, authorization or waiver whatsoever, nor to
undertake any step that was not obtained or undertaken, other than the filing of
two originals of this Agreement with the competent Commercial Court's registrar.
3.3 No judicial, arbitral, or administrative proceeding, nor any request, trial
or investigation which could prevent the Sellers or Pilot Expansion from
executing this Agreement or performing their obligations pursuant thereto, is
pending or foreseeable by reason of any fact or event.
3.4 The execution of this Agreement, the consummation of the transactions
contemplated therein and the performance by the Sellers of all their obligations
herein (i) do not and shall not conflict with or violate any provision of the
bylaws of the Company or Pilot Expansion, and do not or shall not require the
consent of a corporate body of any of these companies (other than the consent of
the Company that was already obtained as of the date hereof), (ii) do not and
shall not conflict with or violate any statutory or regulatory provision or
administrative, judiciary or arbitration decision, and (iii) do not and shall
not conflict with or violate any commitment by Pilot Expansion or the Company
whatsoever.
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3.5 As of the date of this Agreement, Pilot Expansion is the owner of ten (10)
unlimited interests of Ski Expansion, free from any liens or other restrictions.
With the exception of such unlimited interests, Pilot Expansion does not own any
assets; furthermore, it is not a holder of any liability or debt, nor any
obligation of any nature whatsoever (other than the obligations provided in the
Acquisition Agreement and its exhibits).
3.6 With the exception of the Pilot Expansion Interests validly sold to the
Acquirer in connection with this Agreement, there are no interests or rights
granting access, immediately or in the future, to the capital or voting rights
of Pilot Expansion.
ARTICLE 4 - APPROVAL OF THE SALE AND AMENDMENT TO THE COMPANY BYLAWS
In accordance with Articles L. 223-27 of the Commercial Code and 10-1 of the
bylaws of Pilot Expansion, the Sellers as sole holders of interests of the
Company, unanimously agreed at the meeting of Pilot Expansion held on March 30,
2005 (i) to authorize the sale contemplated hereof and approve the Acquirer as a
new holder of interests and (ii) to amend the bylaws accordingly. A copy of the
minutes of such decision certified by the manager of Pilot Expansion is attached
as exhibit to this Agreement.
ARTICLE 5 - STATEMENT FOR REGISTRATION
For the purposes of the payment of registration fees, the Sellers attest that
Pilot Expansion is subject to the corporation tax and that the Pilot Expansion
Interests represent cash contributions.
ARTICLE 6 - FILING
In accordance with Article L. 221-14 of the Commercial Code, for the purposes of
the enforceability of this Agreement, an original of this Agreement shall be
filed at the registered office in exchange for a filing certificate by the
manager substantially in the form attached hereto as Exhibit 6.
ARTICLE 7 - MISCELLANEOUS PROVISIONS
7.1 The Sellers shall ensure, at the latest as of the date hereof, that the
general meeting of the limited partners of Ski Expansion decides to amend its
bylaws, in particular in order to amend Article 3 thereof and any other
concerned provision of such bylaws to the new capacity of Pilot Expansion as
sole unlimited partner, and to suppress the provision stipulating the loss of
Pilot Expansion's capacity as unlimited partner in the event of the amendment of
certain provisions of Pilot Expansion's bylaws; by means of this agreement, the
Sellers agree to the resolutions made for this purpose as limited partners of
Ski Expansion.
7.2 With the exception of their right to receive the Purchase Price, the Sellers
do not have any rights on Pilot Expansion, nor any claim against Pilot Expansion
in connection with their former position as holders of Pilot Expansion
Interests, and they waive in advance any rights or claims that they could derive
from this position. However, the Sellers remain liable for the liabilities of
Pilot Expansion in accordance
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with applicable laws and regulations; in the event that their liability is
incurred in this regard, they shall retain any claim that they may have against
Pilot Expansion.
7.3 If any of the provisions of this Agreement were to be null, illegal or not
enforceable in any manner whatsoever, (the "CONTESTED PROVISIONS"), the validity
and the enforceability of the other provisions shall not be affected or
compromised, and the Parties shall negotiate in good faith in order to replace
the Contested Provisions by provisions that are valid and enforceable and as
close as possible to the common intent of the Parties or, if such common intent
cannot be determined, to the intent of those of the Parties that the Contested
Provisions were designed to protect.
7.4 This Agreement and its interpretation are exclusively governed by French
law. Any dispute arising in connection with this Agreement, including the
validity, the interpretation and the performance thereof, and which cannot be
resolved amicably, shall fall under the exclusive jurisdiction of the courts
within the jurisdiction of the Paris Court of Appeals.
Executed in Lyon, on April 12, 2005, in nine (9) originals.
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FOR QUIKSILVER, INC.:
by Mr. Bernard Mariette
- --------------------------------------
FOR SKI EXPANSION SCA:
by Mr. Laurent Boix-Vives
- --------------------------------------
FOR SDI SOCIETE DE SERVICES ET
DEVELOPPEMENT:
by Mr. Laurent Boix-Vives
- --------------------------------------
MR. LAURENT BOIX-VIVES
- --------------------------------------
MS. JEANNINE BOIX-VIVES
- --------------------------------------
MS. CHRISTINE SIMON
- --------------------------------------
MS. SYLVIE BERNARD
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