Letterhead of
Xxxxx Xxxxxxxxxx
Chief Financial Officer
Xxxxxxx Sports Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx - Xxx Xxxx, XX 00000
(000) 000-0000 - FAX (000) 000-0000
May 2, 1997
Silver Oak Capital,, L.L.C.
c/o Xxxxxx, Xxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sir or Madam:
Reference is made to that Note Purchase Agreement dated October 30, 1996
(the "Agreement") between you and the undersigned (the "Company"). Terms not
defined herein shall have the meanings ascribed to them in the Agreement.
As we have discussed, the Company desires to grant Incentive Stock
Options to certain individuals (the "New Employees") to provide incentives for
them to enter into employment agreements with the Company and/or its
subsidiaries. As we also discussed, the Company desires additional
flexibility to grant Incentive Stock Options from time to time in the future
to existing officers, directors and key employees as well as to the New
Employees to provide incentives for them to continue to provide services to
the Company. As you know, Section 10.4 of the Agreement provides certain
limitations on the Company's ability to grant Incentive Stock Options to its
officers, directors and employees which may affect the Company's ability to
grant the options discussed above. Accordingly, the Company is seeking to
amend certain provisions of the Agreement to allow these grants, subject to
the conditions set forth below.
In this regard, this letter agreement will provide the following
amendments to
Silver Oak Capital, L.L.C.
Page Two
May 2, 1997
the Agreement:
1. The following sentences shall be added to the first paragraph of Section
10.4 of the Agreement:
"Notwithstanding the foregoing, in connection with the hiring of New
Employees by the Company or any of its Subsidiaries, the Company may
grant to the New Employees Incentive Stock Options to acquire up to
950,000 shares of Common Stock in the aggregate without regard to
the limitations on grants of options set forth in the immediately
preceding paragraph. Further, no adjustment to the Conversion Price
need be made pursuant to Section 14.4(e) as the result of granting
any such options to New Employees with a per share exercise price
less than the current market price on the date of grant unless the
cumulative effect of any such adjustments and any other actual or
hypothetical adjustments that would be made under Section 14.4(e)
resulting from the Company's issuance of any shares of its Common
Stock to any New Employee pursuant to the Merger Agreement at a per
share price less than the current market price on the date of actual
issuance (notwithstanding the terms of Section 14.4(e)) would
require a decrease of at least $.05 per share to the Conversion
Price."
2. Effective upon the reduction in the Conversion Price required to be
effected pursuant to paragraph 3 of this letter agreement upon granting
Incentive Stock Options to New Employees, the definition of "Cumulative Quota"
in Section 10.4 shall be amended to provide in full as follows:
"Cumulative Quota" shall mean with respect to each Contract Year,
the number of shares of Common Stock set forth below:
First Contract Year 250,000
Second Contract Year 750,000
Third Contract Year 1,250,000
Fourth Contract Year 1,750,000
Fifth Contract Year 2,250,000
Sixth Contract Year 2,750,000
Seventh Contract Year 3,500,000
Eighth Contract Year 4,250,000"
3. A new sentence shall be added as the final sentence of Section 14.4(e) as
follows:
Silver Oak Capital, L.L.C.
Page Three
May 2, 1997
"Notwithstanding the foregoing, no adjustment to the Conversion Price
need be made pursuant to this Section 14.4(e) as the result of (I) the
grant of up to 950,000 options in the aggregate to New Employees with a
per share exercise price less than the current market price on the date
of grant or (ii) the Company's issuance of any shares of its Common Stock
to any New Employee pursuant to the Merger Agreement at a per share price
less than the current market price on the date of actual issuance
(notwithstanding the terms of the last preceding sentence) unless the
cumulative effect of any actual or hypothetical adjustments (I) and (ii)
would require a decrease of at least $.05 per share to the Conversion
Price."
4. The definition of "Conversion Price" shall be amended in full to provide
as follows:
"'Conversion Price' initially means $6.00 per share, provided however,
that from and after the date that the Company grants any Incentive Stock
Options to any New Employee, the Conversion Price shall be $5.3763 per
share; provided further that in case an adjustment of the Conversion
Price has taken place pursuant to the provisions of Section 14.4 hereof,
then the Conversion Price shall be the price as last adjusted."
5. Two new definitions shall be added to Schedule A as follows:
"Merger Agreement" shall mean that Agreement and Plan of Merger by and
among the Company, Varsity Spirit Corporation, and certain other parties
named therein dated as of May __, 1997.
"New Employees" shall mean individuals employed by Varsity Spirit
Corporation on the date hereof.
The amendments set forth herein shall be conditioned upon and (except as
otherwise provided in paragraph 2 hereof) shall become effective upon the
effective time of the Merger pursuant to the Merger Agreement pursuant to
which it is intended that Varsity Spirit Corporation will become a Subsidiary
of the Company.
Silver Oak Capital, L.L.C.
Page Four
May 2, 1997
All other provisions of the Agreement shall remain unchanged and in full
force and effect. If the foregoing is acceptable to you, please evidence your
agreement to the aforestated amendments to the Agreement by signing below.
Very truly yours,
XXXXXXX SPORTS INC.
by: XXXXX XXXXXXXXXX
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AGREED TO AND ACCEPTED THIS its: Executive Vice President
2 DAY OF MAY 1997
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SILVER OAK CAPITAL, L.L.C.
by: XXXXXXX XXXXXX
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its:
