EXHIBIT 10.42
VOTING AGREEMENT
VOTING AGREEMENT, dated as of December 15, 2006, among SMITH & WESSON
HOLDING CORPORATION, a Nevada corporation ("Smith & Wesson"), and the other
Persons listed on the signatures page hereto (each a "Stockholder" and
collectively "Stockholders").
WITNESSETH
WHEREAS, as of the date hereof, each Stockholder beneficially owns the
number of shares of common stock and preferred stock of Bear Lake Acquisition
Corporation, a Delaware corporation ("Bear Lake") set forth opposite such
Stockholder's name on Schedule I hereto (all shares so owned and that may
hereafter be acquired by any Stockholder prior to the termination of this
Agreement, whether upon the exercise of options, conversion of convertible
securities, exercise of warrants, purchase, dividend, distribution, or
otherwise, being referred to herein with respect to each Stockholder as
"Shares"); and
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Bear Lake and Stockholders are entering into an Agreement and Plan of
Merger, dated as of the date hereof (as such agreement may hereafter be amended
from time to time, the "Merger Agreement"), with Smith & Wesson and SWAC-TC,
Inc., a Delaware corporation that is a wholly owned subsidiary of Smith & Wesson
("SWAC"), which provides for, upon the terms and subject to the conditions set
forth therein, the merger of SWAC with and into Bear Lake (the "Merger"); and
WHEREAS, pursuant to the Merger Agreement, Bear Lake has agreed to call a
special meeting of its stockholders or obtain an Action by Unanimous Consent of
Stockholders for the purpose of approving the Merger Agreement and the Merger
(the "Proposal"); and
WHEREAS, in consideration of Smith & Wesson entering into the Merger
Agreement and incurring fees and expenses relating to the Merger, Stockholders
have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, Smith
& Wesson and Stockholders hereby agree as follows:
SECTION 1
VOTING OF SHARES; AND OTHER COVENANTS OF THE STOCKHOLDERS
1.1 VOTING OF SHARES. From the date hereof until termination of this
Agreement pursuant to Section 3.2 (the "Term"), at any meeting of the
stockholders of Bear Lake called to vote on the Proposal or at any adjournment
or postponement thereof, and in any action by consent of the stockholders of
Bear Lake with respect to which approval of the Proposal is sought, each
Stockholder shall (a) appear at such meeting or otherwise cause such
Stockholder's Shares to be counted as present thereat for purposes of
establishing a quorum and vote (or cause to be voted) such Stockholder's Shares
in favor of the Proposal and such other
2
matters as may be necessary or advisable to consummate the transactions
contemplated by the Merger Agreement or (b) execute a Unanimous Consent in
Writing to the same effect.
1.2 NO INCONSISTENT ARRANGEMENTS. Except as contemplated by this
Agreement, no Stockholder shall during the Term (a) grant any proxy,
power-of-attorney, or other authorization in or with respect to such
Stockholder's Shares that is inconsistent with the terms hereof, (b) deposit
such Stockholder's Shares into a voting trust or enter into a voting agreement
or arrangement with respect to such Stockholder's Shares, (c) sell, transfer,
pledge, encumber, assign, or otherwise dispose of or enforce or permit the
execution of the provisions of any redemption, share purchase or sale,
recapitalization, or other agreement with Bear Lake or enter into any contract,
option, or other arrangement or understanding with respect to the offer for
sale, sale, transfer, pledge, encumbrance, assignment, or other disposition of
any of such Stockholder's Shares, except to a person who agrees in writing to be
bound by the terms and conditions of this Agreement as a Stockholder, or (d)
take any other action that would in any way restrict, limit, or interfere with
the performance of such Shareholder's obligations hereunder or the transactions
contemplated hereby or by the Merger Agreement.
1.3 DISCLOSURE. Stockholder hereby authorizes Smith & Wesson and Bear Lake
to publish and disclose in any filing with the SEC such Stockholder's identity
and ownership of Shares and the nature of such Stockholder's commitments,
arrangements, and understandings under this Agreement and the Merger Agreement.
SECTION 2
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder severally hereby represents and warrants as follows:
2.1 AUTHORITY. Such Stockholder has all requisite power and authority to
enter into this Agreement and to fulfill such Stockholder's obligations under
this Agreement. This Agreement has been duly executed and delivered by and
constitutes a legal, valid, and binding agreement of such Stockholder
enforceable against such Stockholder in accordance with its terms, except that
(a) such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium, or other similar laws nor or hereafter in effect relating to
creditors' rights, and (b) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defines and to the
discretion of the court before which nay proceeding therefor may be brought.
2.2 REQUIRED FILINGS AND CONSENTS. The execution, delivery, and
performance of this Agreement by such Stockholder will not violate or result in
a breach by such Stockholder of, or constitute a default under, or conflict
with, or cause any acceleration of any obligation with respect to (a) any
provision or restriction of any governing instrument or document, stockholders'
agreement, voting trust, proxy, or other similar agreement, (b) any loan
agreement, indenture, lease, or mortgage to which such Stockholder is a party or
by which such Stockholder is bound, or (c) any order, judgment, award, decree,
law, rule, ordinance, regulation, or other restriction of any kind or character
to which any assets or properties of such Stockholder is subject or by which
such Stockholder is bound.
2
2.3 OWNERSHIP OF SHARES. Such Stockholder is the record and beneficial
owner of the Shares set forth opposite such Stockholder's name on Schedule I
hereto. On the date hereof, such Shares constitute all of the Shares owned of
record or beneficially by such Stockholder.
2.4 RELIANCE. Such Stockholder understands and acknowledges that Smith &
Wesson is entering into the Merger Agreement in reliance upon such Stockholder's
execution, delivery, and performance of this Agreement.
SECTION 3
MISCELLANEOUS
3.1 DEFINITIONS. Terms used but not otherwise defined in this Agreement
shall have the meanings ascribed to such terms in the Merger Agreement.
3.2 TERMINATION. This Agreement shall terminate and be of no further force
and effect upon termination of the Merger Agreement in accordance with its
terms. No such termination of this Agreement shall relieve any party hereto from
any liability for any breach of this Agreement prior to termination.
3.3 FURTHER ASSURANCE. From time to time, at another party's request and
without consideration, each party hereto shall execute and deliver such
additional documents and take all such further action as may be necessary or
desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
3.4 NO WAIVER. The failure of any party hereto to exercise any right,
power, or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, or any custom or practice of the parties
at variance with the terms hereof shall not constitute a waiver by such party of
its right to exercise any such right, power or remedy or to demand such
compliance.
3.5 SPECIFIC PERFORMANCE. Each Stockholder acknowledges that if such
Stockholder fails to perform any of such Stockholder's obligations under this
Agreement, immediate and irreparable harm or injury would be caused to Smith &
Wesson for which money damages would not be an adequate remedy. In such event,
such Stockholder agrees that Smith & Wesson shall have the right, in addition to
any other rights it may have, to specific performance of this Agreement.
Accordingly, should Smith & Wesson institute an action or proceeding seeking
specific enforcement of the provisions hereof, each Stockholder hereby waives
the claim or defense that Smith & Wesson has an adequate remedy at law and
hereby agrees not to assert in any such action or proceeding the claim or
defense that such a remedy at law exists.
3.6 NOTICE. All notices, requests, consents, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given and received (a) if mailed by registered or certified mail,
three business days after deposit in the United States mail, postage prepaid,
return receipt requested; (b) upon confirmation of a receipt of a facsimile or
e-mail transmission; (c) if hand delivered, upon delivery against receipt
3
or upon refusal to accept the notice; or (d) if delivered by a standard
overnight courier, one business day after deposit with such courier, postage
prepaid, in each case, addressed to such party at the address set forth below:
If to Smith & Wesson:
Smith & Wesson Holding Corporation
2100 Roosevelt Avenue
Springfield, Massachusetts 01104-1606
Attention: Michael F. Golden
Phone: (413) 747-3349
Fax: (413) 739-8528
E-mail: mgolden@smith-wesson.com
with a copy given in the manner
prescribed above, to:
Greenberg Traurig, LLP
2375 E. Camelback Road, Suite 700
Phoenix, Arizona 85016
Attention: Robert S. Kant, Esq.
Phone: (602) 445-8000
Fax: (602) 445-8100
E-mail: kantr@gtlaw.com
If to Stockholders:
c/o TGV Capital Partners
24 Corporate Plaza, Suite 100
Newport Beach, California 92660
Attention: Geoffrey Moore and Mitchell Vince
Phone: _____________________
Fax: (949) 720-9481
E-mail: ____________________
with a copy given in the manner
prescribed above, to:
Stradling Yocca Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, California 92660
Attention: Michael E. Flynn, Esq.
Phone: (949) 725-4245
Fax: (949) 725-4100
E-mail: mflynn@sycr.com
3.7 HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
4
3.8 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal, or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal, or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the maximum extent possible.
3.9 ENTIRE AGREEMENT; THIRD-PARTY BENEFICIARIES. This Agreement contains
the entire understanding among the parties hereto with respect to the subject
matter hereof and supersedes all prior and contemporaneous agreements and
understandings, inducements, or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance or usage of the trade inconsistent with any of the terms
hereof.
3.10 ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise.
3.11 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the state of Delaware without regard to the choice of law principles
thereof. Each of the parties hereto irrevocably submits to the exclusive
jurisdiction of the courts of the state of Delaware located in New Castle County
and the United States District Court for the District of Delaware for the
purpose of any suit, action, proceeding, or judgment relating to or arising out
of this Agreement and the transactions contemplated hereby. Service of process
in connection with any such suit, action, or proceeding may be served on each
party hereto anywhere in the world by the same methods as are specified for the
giving of notices under this Agreement. Each of the parties hereto irrevocably
consents to the jurisdiction of any such court in any such suit, action, or
proceeding and to the laying of venue in such court. Each party hereto
irrevocably waives any objection to the laying of venue of any such suit,
action, or proceeding brought in such courts and irrevocably waives any claim
that any such suit, action, or proceeding brought in any such court has been
brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO
REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND
REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
3.12 AMENDMENT. This Agreement may not be amended except by an instrument
in writing signed on behalf of Smith & Wesson and each Stockholder.
3.13 WAIVER. Any agreement on the part of a party hereto to any extension
of time for the performance of any of the obligations or other acts of the other
parties hereto or waiver of any inaccuracies in the representations and
warranties of the other parties hereto contained herein or in any document
delivered pursuant hereto or compliance by the other parties hereto with any of
their agreements or conditions contained herein shall be valid only as against
5
such party and only if set forth in an instrument in writing signed by such
party. The failure of any party hereto to assert any of its rights under this
Agreement or otherwise shall not constitute a waiver of those rights.
3.14 DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
3.15 COUNTERPARTS. This Agreement may be executed (including by facsimile
transmission) in one or more counterparts, and by the different parties hereto
in separate counterparts, each of which when executed shall be deemed to be an
original but all of which shall constitute one and the same agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
SMITH & WESSON HOLDING CORPORATION
/s/ Michael F. Golden
------------------------------------------
By: Michael F. Golden
Its: President and Chief Executive Officer
STOCKHOLDERS:
TGV PARTNERS - TCA INVESTORS, LLC
/s/ Mitchell Vance
------------------------------------------
By: Mitchell Vance
Its: Managing Member
/s/ E.G. Kendrick, Jr.
------------------------------------------
E.G. Kendrick, Jr.
/s/ Gregory J. Ritz
------------------------------------------
Gregory J. Ritz
7