1
EXHIBIT 10.24
WAIVER AND TERMINATION AGREEMENT
THIS WAIVER AND TERMINATION AGREEMENT (this "Waiver") is made as of August 14,
1998, by Citicorp Venture Capital, Ltd., a New York corporation ("CVC"), and
Gerber Childrenswear, Inc., a Delaware corporation (f/k/a GCIH, Inc. and
referred to herein as, tile "Company"). The Company and CVC are sometimes
referred to in this Waiver collectively as the "Parties" and individually as a
"Party." Capitalized terms used in this Waiver shall have thc meanings expressly
ascribed to them in this Waiver.
WHEREAS, the Company and various members of the Company's management (each a
"Manager") are party to the Manager Securities Purchase Agreements dated as of
February 28. 1997, July 25, 1997 or November 26, 1997 and described on Schedule
1 hereto (collectively. thc "Manager Agreements") pursuant to which the Company
sold, and the various employees purchased, shares of Stock; and
WHEREAS, the Company and Lawrence R. Glenn ("Glenn") are party to the Investor
Stock Purchase Agreement dated as of January 22, 1996 and described on Schedule
1 hereto (the "Investor Agreement") pursuant to which the Company sold, and
Glenn purchased, shares of Stock; and
WHEREAS, the Company and Joseph Medalie ("Medalie") are parties to the Director
Stock Purchase Agreement dated as of February 11, 1997 and described on Schedule
I hereto (thc "Director Agreement") pursuant to which the Company, sold and
Medalie purchased, shares of Stock; and
WHEREAS, pursuant to each of the Manager Agreements, the Stock is subject to
vesting over a live-year period beginning on the date of the relevant Manager
Agreement and ending on the fifth anniversary thereof (the "Five-Year Period");
WHEREAS pursuant to each of the Manager Agreements after the Five-Year Period
lapses, the Company (and CVC if the Company does not so elect) has a continuing
and perpetual right to repurchase the Vested Stock owned by a Manager, at a
price equal to the Vested Stock's Book Value, if such Manager's employment with
the Company is terminated for any reason at any time (the "Manager Repurchase
Options");
WHEREAS, pursuant to each of the Director Agreement and the Investor Agreement,
the Company is entitled to repurchase the Stock owned by Glenn and Medalie at
any time at a price al to the Stock's Book Value (the "Director Repurchase
Options");
WHEREAS, in connection with the initial public offering of the Company's common
stock (the "IPO"), the Company desires to waive and terminate its rights arising
under the each of thc Manager Repurchase Options and Director Repurchase
Options;
2
WHEREAS, in connection with the IPO, CVC desires to waive and terminate its
rights arising under each of the Manager Repurchase Options;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, CVC and the Company hereby intend to be legally
bound as follows:
SECTION 1. CERTAIN DEFINITIONS.
"Book Value" has the meaning ascribed to it in each of the Manager
Agreements, tile Director Agreement and the Investor Agreement.
"Stock" means shares of capital stock of the Company purchased under
each of the Manager Agreements, the Director Agreement and the Investor
Agreement.
"Vested Stock" has the meaning ascribed to it in each of the Manager
Agreements.
SECTION 2. WAIVER AND TERMINATION.
a) The Company agrees and acknowledges that its past, present and future
rights to (i) repurchase Vested Stock arising under the Manager
Repurchase Options and (ii) repurchase Stock under the Director
Repurchase Options are hereby waived and terminated and the provisions
giving rise to such rights shall have no further force and effect for
now and for all times hereafter.
b) CVC agrees and acknowledges that its past, present and future rights to
repurchase Vested Stock arising under the Manager Repurchase Options
arc hereby waived and terminated and the provisions giving rise to such
rights shall have no further force and effect for now and for all times
hereafter.
SECTION 3. LIMITATION OF WAIVER. The Company and CVC expressly limit the waiver
and termination set forth in Section 2 to those rights arising under the Manager
Repurchase Options and Director Repurchase Options as expressly defined herein.
Except as expressly set forth herein, all such agreements and all rights and
obligations of the Parties arising under the Manager Agreements, the Directors
Agreement and the Investor Agreement shall continue in full force.
Notwithstanding anything contained herein, the Parties expressly reaffirm the
existence and survival of their rights under each Manager Agreement to
repurchase Stock prior to the lapsing of the Five-Year Period subject to the
terms and conditions set forth in the Manager Agreements.
SECTION 4. FURTHER ASSURANCES. The Company and CVC agree to take any further
action and execute any further documents as may be necessary to effectuate the
foregoing; provided that the expenses related to such further action are paid
for or reimbursed by the Company.
SECTION 5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT PROVISIONS OR RULE (WHETHER OF THE STATE
OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY OTHER
JURISDICTION OTHER THAN THE STATE OF NEW YORK TO BE APPLIED.
3
IN WITNESS WHEREOF, the Parties hereto have executed this Waiver as of
the date first written above.
GERBER CHILDRENSWEAR, INC.
By: /s/ Richard L. Solar
---------------------------------
Name: Richard L. Solar
Title: Senior Vice President
CITICORP VENTURE CAPITAL, LTD.
By: /s/ John D. Weber
---------------------------------
Name: John D. Weber
Title: Vice President
4
A. Manager Agreements
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Gerardo M. Arce.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Larry L. Bateman.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Charles W. Berry.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Ronald C. Boone.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Harvey Burak.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and LeeAnn Carroll.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Jay R. Cope.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Robert L. Gall.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and George J. Boltz.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Bobbie C. Greene.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and David R. Hamilton.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Kenneth R. Heatter.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Earle R. Keaton, Jr.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Douglas E. Klein.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Christine R. Lanigan.
5
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Angela C. Lombardi.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Raymond R. McManus.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Jacqueline D. McNulty.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Jeffrey Mintz.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Deanna L. Parris.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and John Larry Pelt.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and David C. Pittman.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and James B. Robertson.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Marvin E. Roberts.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Jeanne E. Scanell.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Eugene L. Scarpa.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Lee M. Schaeffer.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Dwight Smith.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Dale F. Tarlow.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Philip V. Todaro.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Holly H. Waddell.
6
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Deidre A. Wahlberg.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Ralph L. Wheeler.
Manager Securities Purchase Agreement dated as of February 28, 1997 by
and between GCIH, Inc. and Philip R. Whitaker.
Manager Securities Purchase Agreement dated as of July 25, 1997 by and
between GCIH, Inc. and Robert L. Gall.
Manager Securities Purchase Agreement dated as of July 25, 1997 by and
between GCIH, Inc. and David G. Phillips.
Manager Securities Purchase Agreement dated as of July 25, 1997 by and
between GCIH, Inc. and Raymond McManus.
Manager Securities Purchase Agreement dated as of September 30, 1997 by
and between GCIH, Inc. and Susan M. Vander Molen.
Manager Securities Purchase Agreement dated as of November 26, 1997 by
and between GCIH, Inc. and David Hamilton.
Manager Securities Purchase Agreement dated as of November 26, 1997 by
and between GCIH, Inc. and Robert P. Robertson.
B. Investor Agreement
Investor Stock Purchase Agreement dated as of January 22, 1996 by and
between GCIH, Inc. and Lawrence R. Glenn.
C. Director Agreement
Director Stock Purchase Agreement dated as of February 11, 1997 by and
between GCIH, Inc. and Joseph Medalie.