1
Exhibit 10.7
SHAREHOLDERS AGREEMENT
This SHAREHOLDERS AGREEMENT (the "Agreement") is dated as of September
30, 1998, by and among True Temper Corporation, a Delaware corporation (the
"Company"), True Temper Sports LLC, a Delaware limited liability company
("TTSLLC"), Emhart Industries, Inc., a Connecticut corporation ("EII"), and the
other investors listed in Schedule I hereto.
As of the date hereof, TTSLLC, EII and the Other Investors each own the
number of shares of the Company's Common Stock and Senior Preferred Stock set
forth opposite their names on Schedule I hereto.
The Company and the Stockholders (as defined below) desire to enter
into this Agreement for the purposes, among others, of (i) establishing the
composition of the Board (as defined below), (ii) assuring continuity in the
management and ownership of the Company and (iii) limiting the manner and terms
by which the Stockholder Shares (as defined below) may be Transferred (as
defined below).
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings:
"Affiliate" means, when used with reference to a specified Person, any
Person that, directly or indirectly, controls or is controlled by or is under
common control with the specified Person. As used in this definition, "control"
(including, with its correlative meanings, "controlled by" and "under common
control with") shall mean possession, directly or indirectly, of power to direct
or cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise). With respect to any Person who is an individual, "Affiliates" shall
also include, without limitation, any member of such individual's Family Group.
"Board" means the Company's board of directors.
"Business Day" means any day other than a Saturday or Sunday and any
day on which banks in the city of New York, New York are authorized or required
by law or other governmental action to close.
"Common Stock" means the Company's Common Stock, par value $0.01 per
share, and any other common stock authorized by the Company.
"EII Holder" means any of EII and its Permitted Transferees.
"EII Shares" means all Stockholder Shares issued or issuable to any EII
Holder.
"Family Group" means, with respect to any Person who is an individual,
(i) such Person's spouse, former spouse, ancestors and descendants (whether
natural or adopted), parents and
2
their descendants and any spouse of the foregoing persons (collectively,
"relatives") or (ii) the trustee, fiduciary or personal representative of such
Person or any trust solely for the benefit of such Person and/or such Person's
relatives.
"Investor" means any of the Investors.
"Investors" means collectively the TTSLLC Investors and the Other
Investors.
"Investor Shares" means all Stockholder Shares issued or issuable to
any Investor.
"Other Investors" means collectively any of the other investors listed
in Schedule I hereto or any of their Permitted Transferees.
"Other Investor Shares" means all Stockholder Shares issued or issuable
to any Other Investor.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, a governmental entity or any
department, agency or political subdivision thereof or any other entity or
organization.
"Preferred Stock" means the Company's Senior Preferred Stock, par value
$0.01 per share.
"Public Offering" means an underwritten public offering and sale of the
Common Stock pursuant to an effective registration statement under the
Securities Act; provided that a Public Offering shall not include an offering
made in connection with a business acquisition or combination pursuant to a
registration statement on Form S-4 or any similar form, or an employee benefit
plan pursuant to a registration statement on Form S-8 or any similar form.
"Public Sale" means any sale of Stockholder Shares to the public
pursuant to an offering registered under the Securities Act or to the public
pursuant to the provisions of Rule 144 (or any similar rule or rules then in
effect) under the Securities Act.
"Qualified Public Offering" means any offering by the Corporation of
its Common Stock to the public pursuant to an effective registration statement
under the Securities Act or any comparable statement under any similar federal
statute then in force pursuant to which the public offering price results in
aggregate gross cash proceeds to the Corporation and the selling stockholders,
if any, of at least $50,000,000 (before deduction of underwriting discounts and
expenses) and represents an implied aggregate equity value for the fully diluted
Common Stock of at least $100,000,000.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Stockholder Shares" means (i) all shares of Common Stock held,
directly or indirectly, by the Stockholders, (ii) all shares of Preferred Stock
held, directly or indirectly, by the
-2-
3
Stockholders, and (iii) all equity securities issued or issuable directly or
indirectly with respect to any Common Stock referred to in clause (i) above or
with respect to any Preferred Stock referred to in clause (ii) above, in each
case, by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation, share exchange
or other reorganization. As to any particular shares constituting Stockholder
Shares, such shares will cease to be Stockholder Shares when they have been
Transferred in a Public Sale.
"Stockholders" means collectively the Investors and the EII Holders.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors thereof is at the time owned or controlled, directly
or indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a partnership, limited liability
company, association or other business entity, a majority of the partnership or
other similar ownership interests thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more Subsidiaries of that
Person or a combination thereof. For purposes hereof, a Person or Persons shall
be deemed to have a majority ownership interest in a partnership, limited
liability company, association or other business entity if such Person or
Persons shall be allocated a majority of partnership, limited liability company,
association or other business entity gains or losses or shall be or control the
managing director, managing member, manager or a general partner of such
partnership, limited liability company, association or other business entity.
"TTSLLC Investor" means any of TTSLLC or any of its Permitted
Transferees.
"TTSLLC Shares" means all Stockholder Shares issued or issuable to any
TTSLLC Investor.
"Transfer" means any voluntary or involuntary, direct or indirect sale,
transfer, conveyance, assignment, pledge, hypothecation, gift, delivery or other
disposition, and "Transferred" means any change in ownership by means of a
Transfer.
"Unaffiliated Third Party" means any Person who, immediately prior to
the contemplated transaction, (i) is not a Person who directly or indirectly
owns in excess of 5% of the outstanding shares of Common Stock on a
fully-diluted basis (a "5% Owner"), (ii) is not controlling, controlled by or
under common control with any such 5% Owner and (iii) is not the spouse or
descendent (by birth or adoption) of any such 5% Owner or a trust for the
benefit of such 5% Owner and/or such other Persons. As used in this definition,
"control" (including, with its correlative meanings, "controlled by" and "under
common control with") shall mean possession, directly or indirectly, of power to
significantly direct management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise).
2. Board of Directors.
(a) To the extent permitted by law, each Stockholder shall vote all
voting securities of the Company over which such Stockholder has voting control,
and shall take all other reasonably necessary or desirable actions within such
Stockholder's control (whether in such
-3-
4
Stockholder's capacity as a stockholder, director, member of a board committee
or officer of the Company or otherwise, and including, without limitation,
attendance at meetings in person or by proxy for purposes of obtaining a quorum
and execution of written consents in lieu of meetings), and the Company shall
take all necessary and desirable actions within its control (including, without
limitation, calling special board and shareholder meetings):
(i) so that the authorized number of directors of the Board shall be
five or such other number as determined by TTSLLC;
(ii) (A) for the election to the Board of three directors designated
by the holders of record of a majority of the TTSLLC Shares entitled to
vote for directors of the Board (each a "TTSLLC Director") (the three
TTSLLC Directors shall initially be Xxxxxx Xxxx, Xxxx Xxxxx and Xxxxx
Xxxxxxx);
(B) for the election of the Chief Executive Officer of the
Company to the Board for so long as he or she may serve in such capacity;
and
(C) for the election of one director designated by the holders of
a majority of the outstanding Common Stock who will initially be Xxxxxxx
XxXxxx;
(iii) any director designated pursuant to clause (ii) (A) above shall
be removed from the Board or any committee thereof (with or without cause)
at the written request of the holders of a majority of the TTSLLC Shares
entitled to vote for the election of directors, but only upon such written
request and under no other circumstances and, in the case of the Chief
Executive Officer, such person shall be removed from the Board at such
times as any such person ceases to hold such office, or if earlier, at the
request of the holders of a majority of Stockholder Shares entitled to vote
for the election of directors;
(iv) in the event that any director designated hereunder for any
reason ceases to serve as a member of the Board or any committee thereof
during such director's term of office, the resulting vacancy on the Board
or committee shall be filled by a director designated in a manner
consistent with clause (ii) above; and
(v) at the Board's election, the composition of the board of directors
(or any similar governing body) of any of the Company's Subsidiaries shall
be the same as that of the Board.
(b) In addition, the holders of a majority of the TTSLLC Shares shall have
the right to designate one individual to attend each meeting of the Board and
each meeting of any committee thereof as an observer who shall not be a member
of the Board and who shall have no voting rights. Such person shall be entitled
to receive all notices and all information delivered to directors in connection
with meetings of the Board and shall have the same right to reimbursement of
expenses pursuant to clause (c) below as directors of the Board.
(c) To the extent permitted by law, the Company shall reimburse the
directors of the Board for all reasonable out-of-pocket expenses borne by such
directors in connection with the performance of their duties as directors of the
Company and as members of any committee of the Board.
-4-
5
(d) If any party fails to designate in writing a representative to fill a
director position pursuant to the terms of this Section 2, the election of an
individual to such director position shall be accomplished in accordance with
the Company's Certificate of Incorporation and Bylaws and applicable law. In the
event that, at any time, any provision of the Company's Certificate of
Incorporation or Bylaws is inconsistent with the requirements of any provision
of this Section 2, the Stockholders shall take such action as may be necessary
to amend any such provision in the Company's Certificate of Incorporation or
Bylaws, as the case may be, to conform with such requirements.
(e) The committees of the Board shall include an Audit Committee and a
Compensation Committee. The Audit Committee shall consist of three members, all
of which shall be directors who are not members of the management of the
Company, who shall initially be Xxxx Xxxxx, Xxxxx Xxxxxxx and Xxxxxxx XxXxxx.
The Compensation Committee shall consist of four members, three of which shall
be directors who are not members of the management of the Company, who shall
initially be Xxxxx Xxxxxxxx, Xxxxxx Xxxx, Xxxxx Xxxxxxx and Xxxxxxx XxXxxx.
(f) The provisions of this Section 2 shall terminate on the date that
TTSLLC and/or its members fail to collectively own at least 50% of the shares of
the Common Stock held by TTSLLC as of the date hereof.
3. Conflicting Agreements. Each Stockholder represents that such
Stockholder has not granted and is not a party to any proxy, voting trust or
other agreement which is inconsistent with or conflicts with the provisions of
this Agreement, and no holder of Stockholder Shares shall grant any proxy or
become party to any voting trust or other agreement which is inconsistent with
or conflicts with the provisions of this Agreement.
4. Restrictions on Transfer of Stockholder Shares.
(a) General Restrictions.
(i) Prior to the earlier of (x) the first day after the period
commencing on the date hereof and ending on the day the Company's financial
statements are filed with the SEC for the first full fiscal quarter after
the Company consummates a registered offering of its equity or debt
securities, and (y) the date that is two years after the date hereof, and
subject to Section 7 hereof, an EII Holder may Transfer shares of Preferred
Stock only (A) if such EII Holder is exercising a tag-along right granted
to such EII Holder pursuant to Section 4(c), subject to the requirements of
Section 4(d)(ii), or (B) pursuant to the terms of Section 5.
(ii) The EII Holders may not Transfer any shares of Common Stock until
the earlier of (x) the date on which the Company consummates its initial
Public Offering, (y) the date that is two years following the date hereof
and (z) the date on which any TTSLLC Holder sells any of its shares of
Common Stock to any Person who is not an Affiliate of any TTSLLC Holder
following the date that is six months following the date hereof, provided
that EII may only effectuate any such sales (A) in Public Sales, (B) if
such EII Holder has complied with the terms and requirements of Section
4(b) or if such EII Holder is exercising a tag-along right granted to such
EII Holder pursuant to Section 4(c), subject to the requirements of Section
4(d)(ii), or (C) pursuant to the terms of Section 5. Notwithstanding
-5-
6
the foregoing, at such time as the provisions of Section 4(b) have
terminated in respect of the EII holders, any EII holder may Transfer any
share of Common Stock following the earlier of the dates specified in
clauses (x), (y) and (z) of the preceding sentence subject only to
compliance with the provisions of Section 7(b).
(iii) Subject to Section 7 hereof, an Investor may Transfer
Stockholder Shares only (A) in Public Sales, (B) if such Investor has
complied with the terms and requirements of Sections 4(b) and 4(c), to the
extent applicable, or if such Investor is exercising a tag-along right
granted to such Investor pursuant to Section 4(c), subject to the
requirements of Section 4(d)(ii), or (C) pursuant to the terms of Section
5.
(b) Right of First Offer Granted to the Company and the TTSLLC
Investors. Subject to Section 4(d)(i) (all terms defined in this Section 4(b)
shall be for purposes of this Section 4(b) only):
(i) If at any time any Stockholder other than a TTSLLC Investor (a
"Selling Holder") proposes to Transfer any Stockholder Shares (other than
pursuant to a Public Sale, pursuant to the terms of Section 5, or if such
Selling Holder is exercising a tag-along right granted to such Selling
Holder pursuant to Section 4(c)), then such Selling Holder will, not fewer
than twenty-five (25) business days prior to making such Transfer, give
notice (the "Transfer Notice") to the TTSLLC Investors and to the Company
specifying (x) the Stockholder Shares proposed to be Transferred (the
"Offered Shares"), and (y) the price (the "Offered Price") and the other
terms and conditions upon which such Selling Holder proposes to Transfer
such Offered Shares, and (z) if known at the time the Transfer Notice is
given, the proposed Transferee(s).
(ii) Subject to the provisions of Section 4(b)(v), the Transfer Notice
will constitute an irrevocable offer (for the time periods set forth in
items (iii) and (iv) below) to Transfer any of the Offered Shares to the
Company and the TTSLLC Investors at the Offered Price and on the terms
specified in the Transfer Notice (the "Offer to Sell"), except that if the
proposed Transfer is to be wholly or partly for consideration other than
cash, then the Offer to Sell will constitute an offer to Transfer the
Offered Shares to the Company and the TTSLLC Investors for a cash purchase
price equal to the amount of cash (if any) specified in the Transfer
Notice, plus the fair market value determined in the good faith judgement
of the Board, at the date of the Transfer Notice, of such non-cash
consideration.
(iii) The Company will have ten (10) business days after its receipt
of the Transfer Notice (the "Company Exercise Period") during which to
notify the Selling Holder and the TTSLLC Investors in writing of its
election to purchase all or any portion of the Offered Shares (an
"Acceptance Notice").
(iv) If the Company has not elected to purchase all of the Offered
Shares, the TTSLLC Investors will have ten (10) business days after its
receipt of the Transfer Notice (the "TTSLLC Exercise Period") during which
to notify the Selling Holder and the Company in writing of its election to
purchase all or a portion of the Offered Shares which the Company has not
elected to purchase (such shares, the "TTSLLC Offered Shares") (such
written notice, also an "Acceptance Notice"). Any TTSLLC Investor who
delivers an Acceptance Notice shall be referred to herein as a "Purchasing
TTSLLC Investor". If the
-6-
7
Purchasing TTSLLC Investors elect to purchase in the aggregate more than
the TTSLLC Offered Shares, then the TTSLLC Offered Shares shall be sold
among the Purchasing TTSLLC Investors pro rata based upon the number of
Stockholder Shares then owned by such Purchasing TTSLLC Investors or in
such other manner as the Purchasing TTSLLC Investors may agree.
(v) In the event that following the expiration of the Company Exercise
Period and the TTSLLC Exercise Period the Company and the TTSLLC Investors
have elected to purchase some but not all of the Offered Shares, the
Selling Holder, within ten (10) business days after the expiration of the
TTSLLC Exercise Period may elect to cancel the Transfer Notice in which
case the offer to Transfer Offered Shares to the Company and the TTSLLC
Investors at the Offered Price shall be void and of no force and effect.
Assuming that the Selling Holder does not cancel the Transfer Notice in
accordance with the preceding sentence, upon the delivery of the Acceptance
Notice(s), the Company and/or the Purchasing TTSLLC Investor(s), as the
case may be, and the Selling Holder shall be firmly bound to consummate the
purchase and sale of the applicable Offered Shares in accordance with the
Transfer Notice, the Acceptance Notice(s) and the terms hereof. Subject to
the provisions hereof, within thirty (30) days after the Selling Holder's
receipt of the last Acceptance Notice, the Company and/or the Purchasing
TTSLLC Investor(s), as the case may be, shall purchase and the Selling
Holder shall sell the applicable Offered Shares at a mutually agreeable
time and place (the "Offered Shares Closing").
(vi) At the Offered Shares Closing, the Selling Holder shall deliver
to the Company and/or the Purchasing TTSLLC Investor(s), as the case may
be, certificates representing the Offered Shares (which Offered Shares
shall be free and clear of any liens or encumbrances) to be purchased by
the Company and/or the Purchasing TTSLLC Investor(s), as the case may be,
and the Company and/or the Purchasing TTSLLC Investor(s), as the case may
be, shall deliver to the Selling Holder the applicable purchase price for
such Offered Shares by wire transfer of immediately available funds to an
account(s) designated by such Selling Holder.
(vii) If the Company and the TTSLLC Investors collectively do not
elect to purchase any or all of the Offered Shares in accordance with
Section 4(b)(iii) and 4(b)(iv), then, provided the Selling Holder also has
complied with the provisions of Section 4(c), if applicable, and no
Transferee is an Affiliate of the Selling Holder, the Selling Holder may
Transfer any or all of such Offered Shares (unless reduced pursuant to the
exercise of rights granted to other Stockholders in Section 4(c)), at a
price which is not less than the price specified in the Transfer Notice and
on other terms and conditions which are not materially more favorable in
the aggregate to any Transferee thereof than those specified in the
Transfer Notice, to any Person(s) (whether or not identified as a potential
Transferee in the Transfer Notice), but only to the extent that a binding
purchase and sale agreement has been executed between such Selling Holder
and such Transferee within one hundred twenty (120) days after expiration
of the TTSLLC Exercise Period. Any Stockholder Shares not Transferred
pursuant to such an agreement within such 120-day period will be subject to
the provisions of this Section 4(b) upon subsequent Transfer.
-7-
8
(viii) The provisions of this Section 4(b) shall terminate upon the
consummation of a Qualified Public Offering; provided, that with respect to
any EII Holder, the provisions of this Section 4(b) shall terminate upon
the consummation of an initial Public Offering.
(c) Tag Along Rights.
(i) Tag Along Rights in the event of certain Transfers by the TTSLLC
Investors. Subject to Section 4(d)(i), at least ten (10) business days prior to
the Transfer by any of the TTSLLC Investors (collectively, the "TTSLLC
Transferring Stockholder") of any TTSLLC Shares to a Person that is not an
Affiliate of any TTSLLC Investor (other than pursuant to a Public Sale, pursuant
to the terms of Section 5 or any Transfer consummated prior to the date that is
six months following the date hereof), the TTSLLC Transferring Stockholder shall
deliver a written notice (the "TTSLLC Sale Notice") to EII and the Other
Investors (collectively, the "Tagging Investors") and to the Company, specifying
in reasonable detail the identity of the prospective transferee(s), the class
and the number of the Stockholder Shares to be Transferred, and the other
material terms and conditions of such contemplated Transfer. Any of the Tagging
Investors may elect to participate in such contemplated Transfer by delivering
written notice to the TTSLLC Transferring Stockholder within ten (10) business
days after its receipt of the TTSLLC Sale Notice. If any of the Tagging
Investors elects to participate in such Transfer, each of the Tagging Investors
shall be entitled to sell in such contemplated Transfer, at the same price and
on the same terms, up to a number of each class of Stockholder Shares to be
Transferred equal to the product of (I) a fraction, the numerator of which is
the number of Stockholder Shares held by such Tagging Investor and the
denominator of which is the aggregate number of Stockholder Shares owned by the
TTSLLC Transferring Stockholder and all Tagging Investors immediately prior to
such Transfer, multiplied by (II) the total number of Stockholder Shares to be
sold in connection with such Transfer. Each Stockholder who is Transferring any
Stockholder Shares pursuant to this Section 4(c)(i) shall pay its pro rata share
(based on the number of Stockholder Shares to be sold) of the expenses incurred
by the Stockholders in connection with such Transfer and shall take all
necessary and desirable actions as reasonably directed by the TTSLLC
Transferring Stockholder in connection with the consummation of such Transfer,
including without limitation executing the applicable purchase agreement. The
TTSLLC Transferring Stockholder shall cause all applicable transferee(s) to
execute a joinder to this Agreement with respect to all Stockholder Shares
Transferred pursuant to this Section 4(c)(i). Any Transfer made by a TTSLLC
Transferring Stockholder pursuant to this Section 4(c)(i) or pursuant to Section
4(c)(ii) shall satisfy the following conditions, (i) upon the consummation of
such Transfer, each Stockholder participating in such Transfer will be entitled
to receive (x) the same form and amount (on a share-for-share basis) of
consideration, with respect to each share of Common Stock sold in such Transfer
and (y) the same form and amount (on a share-for-share basis) of consideration,
with respect to each shares of Preferred Stock in such Transfer and (ii) if any
holder of a Common Stock or Preferred Stock is given the option as to the form
and amount of consideration to be received in connection with such Transfer,
then each holder of Common Stock or Preferred Stock, as the case may be, shall
be given the same option. In connection with any Transfer made pursuant to this
Section 4(c) EII and each Other Investor shall be entitled to receive, and the
Company and/or the TTSLLC Transferring Stockholder shall deliver all information
relating to the Company and its Subsidiaries as EII or such Other Investor shall
reasonably request. The TTSLLC Transferring Stockholder shall deliver to EII and
each Other Investor a copy of the acquisition agreement (and related documents)
relating to any Transfer subject to this Section 4(c) in a reasonably timely
manner to allow for adequate review by EII and each of the Other Investors and
shall include in the disclosure schedules attached thereto any information
reasonably requested
-8-
9
to be included therein by EII and such Other Investor. The right of the EII
Investors to participate in a Transfer pursuant to this Section 4(c) shall not
be contingent upon such Investor providing any indemnity in connection with any
such Transfer, unless the TTSLLC Transferring Stockholder and all other sellers
provide such an indemnity, and in the event that all sellers are required to
provide an indemnity in connection with such Transfer, all parties hereto agree
to enter into a contribution agreement among themselves which provides that no
Investor shall be liable for more than the lesser of (A) its pro rata shares of
any such indemnification payments (based upon the total consideration received
by such Investor divided by the total consideration received by all sellers in
such Transfer) and (B) the net proceeds actually received by such Investor as
consideration for its shares of Common Stock in such Transfer.
(ii) The provisions of Sections 4(c)(i) shall terminate upon the
consummation of a Qualified Public Offering.
(d) Permitted Transfers.
(i) The restrictions contained in Sections 4(a), 4(b) and 4(c) shall
not apply with respect to any Transfer of Stockholder Shares by any
Stockholder (A) in the case of an individual Stockholder, pursuant to
applicable laws of descent and distribution or to any member of such
Stockholder's Family Group, (B) in the case of a non-individual
Stockholder, to its employees or Affiliates, (C) in the case of TTSLLC, to
its members or any subsequent transfer by such member to its
securityholders in connection with a distribution by TTSLLC of Stockholder
Shares held by it; provided, in each case, that any such transferee shall
have complied with the requirements of Section 4(d)(ii).
(ii) Prior to any proposed transferee's acquisition of Stockholder
Shares pursuant to a Transfer permitted by Section 4(a)(i)(A), 4(a)(ii)(B)
or 4(a)(iii)(B) or Section 4(d)(i), such proposed transferee must agree to
take such Stockholder Shares subject to and to be fully bound by the terms
of this Agreement applicable to such Stockholder Shares by executing a
joinder to this Agreement substantially in the form attached hereto as
Exhibit A and delivering such executed joinder to the Secretary of the
Company prior to the effectiveness of such Transfer (unless such Transfer
is pursuant to applicable laws of descent and distribution, in which case,
such executed joinder shall be delivered to the Secretary of the Company as
soon as reasonably possible after such Transfer). All transferees acquiring
Stockholder Shares and executing a joinder in compliance with this Section
4(d)(ii) are collectively referred to herein as "Permitted Transferees".
(e) If (i) any event occurs pursuant to which The Black & Xxxxxx
Corporation ceases to beneficially own, directly or indirectly, the EII Shares,
(ii) any Transfer of a majority interest in the residual equity securities of a
Stockholder owning Stockholder Shares occurs other than a Transfer to an
Affiliate of the transferring Stockholder, or (iii) any Stockholder Transfers
Stockholder Shares to an Affiliate and an event occurs which causes such
Affiliate to cease to be an Affiliate of such Stockholder, such event or
Transfer shall be deemed a Transfer of Stockholder Shares subject to all of the
restrictions on Transfers of Stockholder Shares set forth in this Agreement,
including without limitation, this Section 4.
5 Approved Sale.
-9-
10
(a) If the holders of a majority of the shares of voting Stockholder
Shares then outstanding, voting together as if a single class, (the "Approving
Stockholders") approve a sale of all or substantially all of the Company's
assets determined on a consolidated basis or a sale of all (or, for accounting,
tax or other reasons, substantially all) of the Company's outstanding capital
stock (other than capital stock which is not Common Stock or convertible into
Common Stock) (whether by merger, recapitalization, consolidation, share
exchange, reorganization, combination or otherwise) to an Unaffiliated Third
Party or group of Unaffiliated Third Parties (each such sale, an "Approved
Sale"), then each holder of Stockholder Shares will vote for, consent to and
raise no objections against such Approved Sale subject to the terms set forth
below. In connection with any Stockholders exercising their rights under this
Section 5(a), such Stockholders shall send a written notice at least ten (10)
business days prior to any Approved Sale to all other Stockholders setting forth
the principal terms of the proposed Approved Sale. If the Approved Sale is
structured as (i) a merger, share exchange or consolidation, each holder of
Stockholder Shares will waive any dissenters' rights, appraisal rights or
similar rights in connection with such merger, share exchange or consolidation
or (ii) a sale of stock, each holder of Stockholder Shares will agree to sell
all of its Stockholder Shares and rights to acquire Stockholder Shares on the
same terms and conditions as applicable to all of the Stockholder Shares held by
the Approving Stockholders. Each holder of Stockholder Shares will take all
reasonably necessary or desirable actions in connection with the consummation of
the Approved Sale as reasonably requested by the Stockholders approving such
Approved Sale including without limitation (but subject to Section 5(c))
executing any applicable purchase agreement.
(b) Each Stockholder will bear their pro-rata share (based upon the
number of Stockholder Shares sold) of the costs of any sale of Stockholder
Shares pursuant to an Approved Sale to the extent such costs are incurred for
the benefit of all holders of Stockholder Shares and are not otherwise paid by
the Company or the acquiring party. Costs incurred by any Stockholder on their
own behalf will not be considered costs of the transaction hereunder.
(c) The obligations of the Stockholders with respect to any Approved
Sale are subject to the satisfaction of the following conditions: (i) in
connection with the consummation of such Approved Sale, each Stockholder will be
entitled to receive (x) the same form and amount (on a share-for-share basis) of
consideration, with respect to each share of Common Stock sold in such Approved
Sale and (y) the same form and amount (on a share-for-share basis) of
consideration, with respect to each share of Preferred Stock sold in such
Approved Sale, (ii) if any holder of Common Stock or Preferred Stock is given
the option as to the form and amount of consideration to be received in
connection with such Approved Sale, then each holder of Common Stock or
Preferred Stock, as the case may be, shall be given the same option, (iii) if
TTSLLC or any Affiliate of TTSLLC owns directly or indirectly more than 5% of
any class of capital stock of any of the Third Parties involved in such Approved
Sale, then such Approved Sale shall have been approved by the holders of a
majority of the shares of Common Stock of the Company held, directly or
indirectly, by persons who do not own more than 5% of any class of capital stock
of any such Third Party and the Board shall have received a fairness opinion
from a nationally recognized investment banking firm with respect to the terms
of such Approved Sale, and (iv) no Stockholder shall be required to provide an
indemnity in connection with any Approved Sale, unless all sellers in such
Approved Sale provide such an indemnity, and in the event that all sellers are
required to provide an indemnity in connection with the Approved Sale, all
parties hereto agree to enter into a contribution agreement among themselves
which provides that no Stockholder shall be liable for more than the lesser of
(A) its pro rata share of such indemnification payments (based upon the total
consideration received by
-10-
11
such holder divided by the total consideration received by all Sellers in such
Approved Sale) and (B) the net proceeds actually received by such holder as
consideration for its shares of proceeds actually received by such holder as a
consideration for its shares of capital stock of the Company in such Approved
Sale. In connection with any Approved Sale, each Stockholder shall be entitled
to receive, and the Company shall deliver all information relating to the
Company and its Subsidiaries as such Stockholder shall reasonably request. The
Company shall deliver to each Stockholder a copy of the acquisition agreement
(and related documents) relating to any Approved Sale in a reasonably timely
manner to allow for adequate review by the Stockholders and shall include in the
disclosure schedules attached thereto any information reasonably requested to be
included therein by such Stockholder. Notwithstanding anything contained herein
to the contrary, the term "consideration" as used in this subsection (c) shall
not include any management, advisory, closing, legal or similar fees received by
any Stockholder or any Affiliate of any Stockholder in connection with an
Approved Sale.
(d) The provisions of this Section 5 will terminate upon the occurrence of
the consummation of a Qualified Public Offering.
6 Financial Statements and Access to Information.
(a) Financial Statements(a) Financial Statements. The Company shall
deliver to each Stockholder who holds more than 5% of the then outstanding
shares of Common Stock and to EII so long as EII and its Affiliates continue to
own all of the shares of Common Stock and Preferred Stock listed on Schedule I
as owned by EII:
(i) within 60 days after the end of each quarterly accounting
period in each fiscal year of the Company, unaudited consolidated statements of
income and cash flows of the Company and its Subsidiaries for such quarterly
period and unaudited consolidated balance sheets of the Company and its
Subsidiaries as of the end of such quarterly period. Such financial statements
shall be prepared in accordance with generally accepted accounting principles,
consistently applied, subject to the absence of footnote disclosures and to
normal year-end adjustments; and
(ii) within 120 days after the end of each fiscal year of the
Company, audited consolidated statements of income and cash flows of the Company
and its Subsidiaries for such fiscal year, and audited consolidated balance
sheets of the Company and its Subsidiaries as of the end of such fiscal year.
Such financial statement shall be prepared in accordance with generally accepted
accounting principles, consistently applied.
(b) Access to Information(b) Access to Information. The Company shall
permit any Stockholder who holds more than 10% of the then outstanding shares of
Common Stock and its representatives (including, without limitation, its legal
counsel, accountants and governmental authorities to which it is subject) and
EII so long as EII and its Affiliates continue to own all of the shares of
Common Stock and Preferred Stock listed on Schedule I as owned by EII, during
normal business hours and such other times as any such holder may reasonably
request, to (i) visit and inspect any of the properties of the Company and its
Subsidiaries, (ii) examine the corporate and financial records of the Company
and its Subsidiaries and make copies thereof or extracts therefrom and (iii)
discuss the affairs, finances and accounts of any such entities with any of the
executive officers of the Company.
-11-
12
7 Legend; Additional Restriction on Transfer.
(a) Each certificate or instrument evidencing Stockholder Shares and
each certificate or instrument issued in exchange for or upon the Transfer of
any Stockholder Shares (if such securities remain Stockholder Shares (as defined
herein) after such Transfer) shall be stamped or otherwise imprinted with a
legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION
THEREUNDER. THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO A SHAREHOLDERS AGREEMENT DATED AS OF
SEPTEMBER 30, 1998, AS MAY BE AMENDED FROM TIME TO TIME, BY AND AMONG
THE ISSUER AND CERTAIN OF THE ISSUER'S STOCKHOLDERS. A COPY OF SUCH
SHAREHOLDERS AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER
TO THE HOLDER HEREOF UPON WRITTEN REQUEST."
The legend set forth above regarding the Shareholders Agreement shall be removed
from the certificates evidencing any securities which cease to be Stockholder
Shares. Upon the request of any holder of Stockholder Shares, the Company shall
remove the Securities Act legend set forth above from the certificate or
certificates for such Stockholder Shares; provided, that such Stockholder Shares
are eligible for sale pursuant to Rule 144(k) (or any similar rule or rules then
in effect) under the Securities Act.
(b) Unless waived by the Company, no Stockholder may Transfer any
Stockholder Shares (except pursuant to an effective registration statement under
the Securities Act) without first delivering to the Company an opinion of
counsel reasonably acceptable in form and substance to the Company (which
counsel will be reasonably acceptable to the Company) that registration under
the Securities Act is not required in connection with such Transfer.
8 Transfers in Violation of Agreement. Any Transfer or attempted Transfer
of any Stockholder Shares in violation of any provision of this Agreement shall
be null and void, and the Company shall not record such Transfer on its books or
treat any purported transferee of such Stockholder Shares as the owner of such
securities for any purpose.
9 Preemptive Rights.
(a) If at any time prior to the consummation of a Qualified Public
Offering the Company wishes to issue any Common Stock or any options, warrants
or other rights to acquire Common Stock or any notes or other securities
convertible or exchangeable into Common Stock (all such Common Stock and other
rights and securities, collectively, the "Equity Equivalents") to any Person or
Persons, the Company shall promptly deliver a notice of intention to sell (the
"Company's Notice of Intention to Sell") to each Stockholder setting forth a
description
-12-
13
and the number of the Equity Equivalents proposed to be issued and the proposed
purchase price and terms of sale. Upon receipt of the Company's Notice of
Intention to Sell, each Stockholder shall have the right to elect to purchase,
at the price and on the terms stated in the Company's Notice of Intention to
Sell, a number of the Equity Equivalents equal to the product of (i) such
Stockholder's proportionate ownership of the outstanding shares of Common Stock
(calculated on a fully-diluted basis assuming all holders of then outstanding
warrants, options and convertible securities of the Company which are in the
money had converted such convertible securities or exercised such warrants or
options immediately prior to the taking of the record of the holders of Common
Stock for the purpose of determining whether they are entitled to receive such
offer) held by all Persons multiplied by (ii) the number of Equity Equivalents
proposed to be issued (as described in the applicable Company's Notice of
Intention to Sell). Such election shall be made by the electing Stockholder by
written notice to the Company within fifteen (15) business days after receipt by
such Stockholder of the Company's Notice of Intention to Sell (the "Acceptance
Period"). In the event that any Equity Equivalents proposed to be issued at any
time as contemplated by this Section 9 are either voting securities or
securities which are convertible, exercisable or exchangeable for voting
securities and for any reason one or more of the Stockholders determines in its
sole discretion that it would be detrimental to such Stockholder or its
Affiliates to purchase such Equity Equivalents as provided hereby, then the
Company shall make available to any such Stockholder an amount of alternative
securities equal to the amount of such Equity Equivalents as such Stockholder
has elected to purchase pursuant to the terms hereof which are identical to such
Equity Equivalents in all respects except for the fact that such alternate
securities shall be non-voting securities or convertible, exercisable or
otherwise exchangeable for non-voting securities (the "Alternative Securities")
upon such terms and conditions as such Stockholder may request.
(b) To the extent an effective election to purchase has not been
received from a Stockholder pursuant to subsection (a) above in respect of the
Equity Equivalents proposed to be issued pursuant to the applicable Company's
Notice of Intention to Sell, the Company may, at its election, during a period
of one hundred and twenty (120) days following the expiration of the applicable
Acceptance Period, issue and sell the remaining Equity Equivalents to be issued
and sold to any Person at a price and upon terms not more favorable to such
Person than those stated in the applicable Company's Notice of Intention to
Sell; provided, however, that failure by a Stockholder to exercise its option to
purchase with respect to one issuance and sale of Equity Equivalents shall not
affect its option to purchase Equity Equivalents in any subsequent offering,
sale and purchase. In the event the Company has not sold any Equity Equivalents
covered by a Company's Notice of Intention to Sell, or entered into a binding
agreement to sell such Equity Equivalents, within such one hundred and twenty
(120) day period, the Company shall not thereafter issue or sell such Equity
Equivalents, without first offering such Equity Equivalents to each Stockholder
in the manner provided in this Section 9.
(c) If a Stockholder gives the Company notice, pursuant to the
provisions of this Section 9, that such Stockholder desires to purchase any
Equity Equivalents or Alternative Securities, payment therefor shall be by check
or wire transfer of immediately available funds, against delivery of the
securities (which securities shall be issued free and clear of any liens or
encumbrances) at the executive offices of the Company at the closing date fixed
by the Company for the sale of all such Equity Equivalents. In the event that
any proposed sale is for a consideration other than cash, such Stockholders may
pay cash in lieu of all (but not part) of such other consideration, in the
amount determined reasonably and in good faith by the Board to represent the
fair value of such consideration other than cash.
-13-
14
(d) The preemptive rights contained in this Section 9 shall not apply
to (i) the issuance of shares or units of Equity Equivalents as a stock dividend
or upon any subdivision, split or combination of the outstanding shares of
Common Stock; (ii) the issuance of Equity Equivalents upon conversion, exchange
or redemption of any outstanding convertible or exchangeable securities; (iii)
the issuance of Equity Equivalents upon exercise of any then outstanding options
or warrants; (iv) the issuance of Equity Equivalents to any employee or director
of the Company or any of its subsidiaries in his or her capacity as such; or (v)
the issuance of warrants and the issuance of Common Stock issued pursuant to
such warrants issued in connection with the Securities Purchase Agreement
between the Company and Emhart Inc. dated as of the date hereof and the
Securities Purchase Agreement between True Temper Sports, Inc. and DLJ Bridge
Financing, Inc. dated as of the date hereof.
(e) The provisions of this Section 9 shall terminate upon the
consummation of a Qualified Public Offering.
10 Amendment and Waiver. No modification, amendment or waiver of any
provision of this Agreement shall be effective against the Company or the
Stockholders unless such modification, amendment or waiver is approved in
writing by, respectively, the Company or the holders of at least a majority of
the Stockholder Shares; provided, that no amendment shall be effective without
the consent of a Stockholder to the extent that such amendment would adversely
affect the rights or obligations of such Stockholder hereunder. The failure of
any party to enforce any of the provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect the right of such
party thereafter to enforce each and every provision of this Agreement in
accordance with its terms. Each Stockholder shall remain a party to this
Agreement only so long as such person is the holder of record of Stockholder
Shares.
11 Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
12 Entire Agreement. Except as otherwise expressly set forth herein, this
document embodies the complete agreement and understanding among the parties
hereto with respect to the subject matter hereof and supersedes and preempts any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
13 Termination. This Agreement will automatically terminate and be of no
further force or effect immediately after the consummation of an Approved Sale.
14 Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Stockholders and any subsequent
holders of Stockholder Shares and
-14-
15
the respective successors, heirs and permitted assigns of each of them, so long
as they hold Stockholder Shares.
15 Counterparts. This Agreement may be executed in separate counterparts
each of which shall be an original and all of which taken together shall
constitute one and the same agreement.
16 Remedies. The parties hereto shall be entitled to enforce their rights
under this Agreement specifically to recover damages by reason of any breach of
any provision of this Agreement and to exercise all other rights existing in
their favor. The parties hereto agree and acknowledge that money damages may not
be an adequate remedy for any breach of the provisions of this Agreement and
that the Company and any Stockholder may in his, hers, or its sole discretion
apply to any court of law or equity of competent jurisdiction for specific
performance and/or injunctive relief (without posting a bond or other security)
in order to enforce or prevent any violation of the provisions of this
Agreement.
17 Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered if delivered
personally, sent via a nationally recognized overnight courier, or sent via
facsimile to the recipient, or if sent by certified or registered mail, return
receipt requested, will be deemed to have been given two business days
thereafter. Such notices, demands and other communications will be sent to the
address indicated below:
To the Company:
True Temper Corporation
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: President
Telecopy No.: (000) 000-0000
With a copy, which shall not constitute notice, to:
True Temper Sports LLC
c/o Cornerstone Equity Investors, LLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Xxxxx Xxxxxxx
Telecopy No.: (000) 000-0000
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
-15-
16
To EII:
Emhart Industries, Inc.
c/o The Black & Xxxxxx Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: Senior Vice President and
Chief Financial Officer
Telecopy No.: (000) 000-0000
With a copy, which shall not constitute notice, to:
Miles & Stockbridge P.C.
00 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
To TTSLLC:
True Temper Sports LLC
c/o Cornerstone Equity Investors, LLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Xxxxx Xxxxxxx
Telecopy No.: (000) 000-0000
With a copy, which shall not constitute notice, to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
If to any Other Stockholder to the address set forth opposite such Person's name
on Schedule I attached hereto or, in any such case, such other address or to the
attention of such other person as the recipient party shall have specified by
prior written notice to the sending party.
18 GOVERNING LAW. THE CORPORATE LAW OF THE STATE OF DELAWARE WILL GOVERN
ALL QUESTIONS CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS
STOCKHOLDERS. ALL OTHER QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
-16-
17
19 Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
* * * * *
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
TRUE TEMPER CORPORATION
By:
Name:
Title:
TRUE TEMPER SPORTS LLC
By: Cornerstone Equity Investors IV, L.P.
Its: Authorized Member
By: Cornerstone IV, LLC
Its: General Partner
By:
Name:
Title:
EMHART INDUSTRIES, INC.
By:
Name:
Title:
----------------------------------------
Xxxxx Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
19
----------------------------------------
Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxxxxx, III
----------------------------------------
Xxxxx X. Xxxxxxxx
----------------------------------------
Xxxx Xxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. XxXxxx
20
SCHEDULE I
NAME ADDRESS COMMON STOCK PREFERRED STOCK
Xxxxx Xxxxxxxx 0000 Xxx Xxxx Xxxxxx 000,000 0
Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx 0000 Xxxxxxx Xxxxxx 00,000 0
Xxxxxxxxxxxx, XX 00000
Xxxxxx X. XxXxxx 0000 Xxxxxxx Xxxxxx 00,000 0
Xxxxxxxxxx, XX 00000
Xxxx Xxxxx 000 Xxxxxxxxx Xxxx 15,482 0
Xxxxxxxxxxxx, XX 00000
Xxxxx Xxxxxxxx 9189 Bluff Top Cove 12,902 0
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxxx, III 000 00xx Xxxxxx Xxxxx 0,000 0
Xxxxx, XX 00000
Xxxxxxx X. Xxxxxx 1876 Xxxxxx, Nook 6,193 0
Xxxxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxx 6981 Hearth Side Cove 5,677 0
Xxxxxxx, XX 00000
21
EXHIBIT A
FORM OF JOINDER TO
SHAREHOLDERS AGREEMENT
This JOINDER TO SHAREHOLDERS AGREEMENT (the "Joinder") dated as of ,
by and among True Temper Corporation, a Delaware corporation (the "Company"),
and certain stockholders of the Company (the "Agreement"), is made and entered
into as of _________ by and between the Company and _________________
("Holder"). Capitalized terms used herein but not otherwise defined shall have
the meanings set forth in the Agreement.
WHEREAS, Holder has acquired certain Stockholder Shares and the Agreement
and the Company require Holder, as a holder of such Stockholder Shares, to
become a party to the Agreement, and Holder agrees to do so in accordance with
the terms hereof.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Joinder hereby agree as follows:
1 Agreement to be Bound. Holder hereby agrees that upon execution of this
Joinder, it shall become a party to the Agreement and shall be fully bound by,
and subject to, all of the covenants, terms and conditions of the Agreement as
though an original party thereto and shall be deemed a [TTSLLC INVESTOR/EII
INVESTOR/OTHER INVESTOR] and a Stockholder for all purposes thereof. In
addition, Holder hereby agrees that all Common Stock and Preferred Stock held by
Holder shall be deemed [TTSLLC/EII/OTHER INVESTORS] Shares and Stockholder
Shares for all purposes of the Agreement.
2 Successors and Assigns. Except as otherwise provided herein, this Joinder
shall bind and inure to the benefit of and be enforceable by the Company and its
successors, heirs and assigns and Holder and any subsequent holders of
Stockholder Shares and the respective successors, heirs and permitted assigns of
each of them, so long as they hold any Stockholder Shares.
3 Counterparts. This Joinder may be executed in separate counterparts each
of which shall be an original and all of which taken together shall constitute
one and the same agreement.
4 Notices. For purposes of Section 17 of the Agreement, all notices,
demands or other communications to the Holder shall be directed to:
[NAME]
[ADDRESS]
[FACSIMILE NUMBER]
5 GOVERNING LAW. THE CORPORATE LAW OF THE STATE OF DELAWARE SHALL GOVERN
ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS STOCKHOLDERS.
ALL OTHER
22
QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND INTERPRETATION OF THIS
JOINDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS
OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT
OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF NEW YORK.
6 DESCRIPTIVE HEADINGS. The descriptive headings of this Joinder are
inserted for convenience only and do not constitute a part of this Joinder.
* * * * *
23
IN WITNESS WHEREOF, the parties hereto have executed this Joinder as of the
date first above written.
TRUE TEMPER CORPORATION
By:
Name:
Title:
[HOLDER]
By:
Name:
Title:
