EXHIBIT 10.2
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT ("Agreement"), is made on this 5th day of
November, 1998, by and among BASS PRO OUTDOOR WORLD, L.P., a Missouri limited
partnership with principal offices located at 2500 East Kearney, Springfield,
Missouri 65898 ("Bass Pro"), BBBP MANAGEMENT COMPANY, a Michigan corporation
located in Gaylord, Michigan ("Corporation") and BIG BUCK BREWERY & STEAKHOUSE,
INC., a Michigan corporation located in Gaylord, Michigan ("Michigan").
RECITALS
A. The entire capital stock of Corporation consists of 60,000 shares of
common stock, having a par value of One Cent ($.01) per share (the "Common
Stock").
B. Bass Pro and Michigan (collectively, the "Shareholders") are the
Shareholders of Corporation owning 200 Shares and 800 Shares respectively of
Common Stock, (collectively, the "Shares"), having purchased each such Share
this date for the per share subscription price of Ten Dollars ($10.00) per
share.
C. The Shares constitute all of the presently issued and outstanding
shares of the Common Stock of Corporation.
D. Corporation was formed for the purpose of establishing Buck & Bass,
L.P., a Missouri limited partnership (the "Partnership"), serving as its sole
general partner and, in such capacity, conducting, managing and operating the
business of the Partnership.
E. Because of such relationship between Corporation and the Partnership
(which is engaged in a highly competitive business), and for other good reasons,
the Shareholders have determined that it is in their respective best interests
and in the best interest of the Partnership and Corporation that the Common
Stock of Corporation be closely held and not generally distributed, and that
their agreement as to the relation between the parties hereto as the
Shareholders of Corporation, including, without limitation, the governance of
Corporation, be reflected in writing.
F. In order to achieve the foregoing desires of the Shareholders and to
express the Shareholders' intentions regarding their relationship as
shareholders of Corporation, the parties have entered into this Agreement.
TERMS OF THE AGREEMENT
ARTICLE I
DEFINITIONS
In addition to the terms defined elsewhere in this Agreement, for purposes
of this Agreement, the following terms shall have the respective meanings
ascribed to them in this ARTICLE I. Terms not otherwise defined herein within
quotation marks and with the first letter of each word thereof (except for
prepositions and articles) capitalized shall have the same meaning as ascribed
to them in the Partnership Agreement.
1.1 "ARTICLES" - The Articles of Incorporation of Corporation, as from
time to time amended or restated.
1.2 "AFFILIATE" - Any entity directly or indirectly controlled by,
controlling or under direct or indirect common control with such entity or any
person related by blood or marriage to any owner of the Shares. Control, for
purposes of this Section 1.2, means the ability to direct the actions of such
entity or person through the exercise of majority voting power or operating
control over day-to-day decisions of such entity.
1.3 "BOARD" - The Board of Directors of Corporation.
1.4 "BOOK VALUE" - As to Corporation, and at any specific time, the
shareholders' equity in Corporation as shown on the balance sheet of Corporation
for its then most recently completed fiscal quarter, prepared in accordance with
"GAAP," consistently applied.
1.5 "DIRECTOR" - A person duly elected or appointed to the Board.
1.6 "PARTNERSHIP AGREEMENT" - The Limited Partnership Agreement of Buck
& Bass, L.P. of even date herewith by and among Corporation, as the General
Partner thereof, and Bass Pro and Michigan as limited partners.
1.7 "TRANSFER" - The voluntary or involuntary transfer to any entity or
person by any Shareholder of any Shares or interest therein in any manner
whatsoever (including, but not by way of limitation, any assignment, sale,
pledge, hypothecation, disposal, gift, transfer by any legal process, including
those resulting from a merger, consolidation or statutory share exchange or from
an Insolvency Event, or any other transfer).
ARTICLE II
ELECTION OF DIRECTORS AND BOARD MEETINGS
2.1 The Board shall initially consist of three (3) Directors, two (2)
of whom shall be designated by Michigan and one (1) of whom shall be designated
by Bass Pro. In the event of death, resignation or other occurrence prohibiting
the person from continuing to serve, if the member was initially designated by
Bass Pro, Bass Pro shall have the right to designate the replacement, otherwise,
Michigan shall have such right to designate the replacement.
2.2 The Board shall hold regular meetings on a semi-annual basis, and
the dates upon which such regular Board meetings are to be held during each
calendar year shall be established in advance to permit such regular meetings to
be held within thirty (30) days following the distribution by the Partnership of
the semi-annual financial statements of the Partnership.
2.3 To the extent requested by a Director, the Corporation shall provide
each Director with copies of such periodic financial and operating information
and reports of or concerning the Corporation and the Partnership prepared for
the Chief Executive Officer of the Corporation and the Partnership. Such
information and reports shall be provided to the Directors promptly upon the
completion thereof.
ARTICLE III
UNANIMITY REQUIREMENTS
3.1 The Shareholders hereby acknowledge their understanding and
agreement that in addition to their agreement with respect to the election of
the members of the Board, the Articles provide that any and all other actions of
the Corporation which require the approval of or authorization by the
shareholders of the Corporation shall require the unanimous vote or consent of
all of the Shareholders of the Corporation. Without limiting the generality of
the foregoing, the Articles provide that any amendment to the Articles, the
causing of insolvency to
occur by, or the liquidation or dissolution of, Corporation shall require the
unanimous vote or consent of all of the Shareholders of Corporation.
3.2 The Shareholders also acknowledge their understanding and agreement
to the provisions of the Articles requiring that certain acts by the
Corporation, as the General Partner of the Partnership, require the unanimous
vote or consent of all of the Directors. Without limiting the generality of the
foregoing, the Articles prohibit the Corporation, as the General Partner of the
Partnership, to authorize or permit the Partnership to engage in any of the
following activities without the unanimous affirmative vote or written consent
of all of the Shareholders:
(a) to incur debt on behalf of the Corporation or the Partnership
except (i) ordinary trade accounts of the Partnership payable within thirty (30)
days and (ii) up to One Million Five Hundred Thousand Dollars ($1,500,000.00)
for furniture, fixtures and equipment for the business of the Partnership as
provided in the limited partnership agreement concerning the Partnership.
(b) to mortgage, pledge, hypothecate or grant any security
interest or create any lien in any property of the Partnership.
(c) to sell a material portion of the Partnership's property.
(d) to dissolve or liquidate the Partnership.
3.3 In addition to the unanimity requirements set forth in Section 3.1
and Section 3.2, so long as such unanimity requirements are in effect, the
Shareholders hereby agree that the Corporation shall not be permitted to issue
additional shares of Common Stock, or other shares of capital stock or
securities convertible into or exercisable for shares of capital stock, unless
specifically authorized by the unanimous consent of all the Shareholders.
ARTICLE IV
TERM AND TERMINATION
4.1 This Agreement shall commence as of the date first above written and
shall continue in full force and effect until the occurrence of any one of the
following:
(a) the unanimous consent of the Shareholders to terminate; or
(b) the dissolution and completion of the winding up of the
affairs of the Partnership.
4.2 Upon the termination of this Agreement, the Shareholders shall call
a special meeting of the shareholders of Corporation for the purpose of amending
the Articles to eliminate any and all Shareholder and Director unanimity
requirements and in lieu thereof, to provide for Shareholder and Director action
to be taken by a majority vote unless otherwise required by law (the
"Amendment"). The Shareholders shall vote in favor of the Amendment and shall
take (or cause to be taken) all steps necessary to implement and effect the
Amendment. The adoption and approval of the Amendment may be effected by means
of the unanimous written consent of the Shareholders of Corporation in lieu of
such special Shareholder's meeting. The provisions of this Section 4.2 shall
survive the termination of this Agreement to the maximum extent permitted by
law.
4.3 Upon the dissolution of the Partnership and the distribution of its
assets pursuant to winding up of the Partnership's affairs, the Shareholders
shall take all action necessary to dissolve Corporation in accordance with the
General and Business Corporation Law of Missouri.
ARTICLE V
TRANSFERABILITY OF SHARES
5.1 Except as provided in this Article V, no Shareholder, including any
transferee of Shares, shall voluntarily or involuntarily Transfer or attempt to
Transfer any Shares or any interest therein which are now or hereafter owned by
such Shareholder, without the prior written consent of all of the remaining
Shareholders. Unless otherwise prohibited by law, any Transfer of Shares (other
than a "Permitted Transfer" as defined below) shall be deemed null and void and
of no force and effect.
5.2 Notwithstanding anything to the contrary herein contained, Bass Pro
or Michigan may Transfer all or any portion of its Shares to any other Affiliate
of the transferor (a "Permitted Transfer"). No Transfer shall relieve the
transferor of its obligations under this Agreement.
5.3 If Bass Pro exercises its option to purchase the interests of
Michigan pursuant to Section 8.1 of the Partnership Agreement, then Bass Pro
shall have the absolute, unconditional right to purchase all of the shares owned
by Michigan (and all Affiliates of Michigan) for a fair and reasonable value
which the parties have agreed to under Article VIII of the Partnership Agreement
(e.g. 40% of the "Book Value" of the Corporation represented by such Shares),
which value was determined in consideration of "Special Circumstances"
identified in Section 8.1 of the Partnership Agreement. Bass Pro's exercise of
its option under this Section 5.3 shall be in writing and given to Corporation
within ten (10) days following Bass Pro's exercise of its option under Section
8.1 of the Partnership Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 Nothing contained herein shall be deemed to imply or require that
any person serving as a Director, whether designated by Michigan or by Bass Pro,
discharge his or her duties as a Director in any manner other than in accordance
with his or her considered judgment at such time with respect to the best
interest of the Company and all of its Shareholders.
6.2 The provisions of this Agreement are severable, so that the
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or unenforceability of any other term or provision of this
Agreement, which shall remain in full force and effect.
6.3 In addition to any and all other remedies that may be available at
law or in the event of any breach of this Agreement, each party shall be
entitled to specific performance of the agreements and obligations of the other
parties hereunder and to such other injunctive or other equitable relief as may
be granted by a court of competent jurisdiction, it being acknowledged by the
parties hereto that irreparable injury will result to the non-breaching party in
the event of a breach of this Agreement by a Shareholder, and that the remedies
at law arising from such a breach are inadequate.
6.4 This Agreement shall be governed by, and construed and enforced in
accordance with, the internal laws of the State of Missouri.
6.5 Any and all notices permitted or required to be made under this
Agreement shall be in writing, signed by the party giving such notice and shall
be deemed given if delivered personally or sent by telecopy transmission,
recognized courier service, or sent by registered or certified mail, to the
Shareholders at their respective addresses shown in the Partnership Agreement.
Any party to this Agreement may change its address
for delivery of any notices permitted or required to be made under this
Agreement by giving notice to that effect in accordance with the provisions
of this Section 6.5.
6.6 The Shareholders acknowledge their understanding and agreement that
each certificate evidencing Shares shall contain appropriate legends, including
the following:
"THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY ARE SUBJECT TO THE
TERMS OF THAT CERTAIN SHAREHOLDERS' AGREEMENT DATED NOVEMBER 5, 1998 (A
COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE CORPORATION) WHICH
CONTAINS CERTAIN LIMITATIONS, RESTRICTIONS AND OBLIGATIONS WITH RESPECT TO
SUCH SHARES AND THE HOLDER THEREOF, INCLUDING, WITHOUT LIMITATION,
RESTRICTIONS UPON THE SALE OR TRANSFER OF THE SHARES REPRESENTED HEREBY."
6.7 All suits, actions or proceedings arising out of or relating to this
Agreement shall be brought in either (i) a State Court in Greene County,
Missouri, or in the United States District Court for the Western District of
Missouri, or (ii) a state court in Otsego County, Michigan or in the United
States District Court for the Eastern District of Michigan, which courts shall
be the exclusive forums for all such suits, actions or proceedings. Each party
hereto hereby waives, and each subsequent Shareholder shall thereby waive, any
objections which any of them may now or hereafter have to the laying of venue in
any such court of any such suit, action or proceeding. Each party hereto hereby
irrevocably submits, and each subsequent Shareholder thereby irrevocably
submits, to the jurisdiction of the courts set forth above in any such suit,
action or proceeding.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the day and year first above written.
BASS PRO OUTDOOR WORLD, L.P.,
a Missouri Limited Partnership
By: BASSGEC MANAGEMENT COMPANY,
Its General Partner
By: /s/ Susie Henry
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Title: Executive Vice President
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BBBP MANAGEMENT COMPANY
By: /s/ William F. Rolinski
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Title: Sole Incorporator
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BIG BUCK BREWERY & STEAKHOUSE, INC.
By: /s/ William F. Rolinski
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Title: President and CEO
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