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Exhibit 10.22
SALE PARTICIPATION AGREEMENT
March 8, 2000
Xxxxx X. Xxxxx, Trustee of the
Xxxxx X. Xxxxx Revocable Trust Under
Agreement Dated 6/16/82, As Amended
000 Xxxxx Xxxxxxxx
Xxxxxxxxx 00000
Xxxxxxxxxx, Xxxx 00000
Dear Xx. Xxxxx:
You have entered into a Stockholder's Agreement, dated as of March
8, 2000 (the "Stockholder's Agreement"), between Spalding Holdings Corporation,
a Delaware corporation (the "Company"), and you relating to the purchase from
the Company of shares of the common stock, par value $.01 per share, of the
Company ("Common Stock"). The undersigned "Investors," which include KKR
Partners II, L.P., a Delaware limited partnership ("KKR Partners"), and Strata
Associates, L.P., a Delaware limited partnership ("Strata Associates"), also
have purchased shares of Common Stock and hereby agree with you as follows,
effective upon such purchase of Common Stock by you:
1. In the event that at any time KKR Partners or Strata Associates,
as the case may be (each a "Selling Partnership" and collectively, the "Selling
Partnerships"), proposes to sell for cash or any other consideration any shares
of Common Stock owned by it, in any transaction other than a Public Offering (as
defined in the Stockholder's Agreement) or a sale to an affiliate of KKR
Partners or Strata Associates, as the case may be, the Selling Partnership will
notify you or your Purchaser's Estate or Purchaser's Trust (as such terms are
defined in Section 2 of the Stockholder's Agreement), as the case may be, in
writing (a "Notice") of such proposed sale (a "Proposed Sale") and the material
terms of the Proposed Sale as of the date of the Notice (the "Material Terms")
promptly, and in any event not less than 15 days prior to the consummation of
the Proposed Sale and not more than 5 days after the execution of the definitive
agreement relating to the Proposed Sale, if any (the "Sale Agreement"). If
within 10 days of your or your Purchaser's Estate's or Purchaser's Trust's, as
the case may be, receipt of such Notice the Selling Partnership receives from
you or your Purchaser's Estate or Purchaser's Trust, as the case may be, a
written request (a "Request") to include Common Stock held by you or your
Purchaser's Estate or Purchaser's Trust, as the case may be, in the Proposed
Sale (which Request shall be irrevocable unless (a) there shall be a material
adverse change in the Material Terms or (b) if otherwise mutually agreed to in
writing by you or your Purchaser's Estate or Purchaser's Trust, as the case may
be, and the Selling Partnership), the Common Stock held by you will be so
included as provided herein; provided that only one Request, which shall be
executed by you or your Purchaser's Estate or Purchaser's Trust, as the case may
be, may be delivered with respect to
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any Proposed Sale for all Common Stock held by you or your Purchaser's Estate or
Purchaser's Trust. Promptly after the consummation of the transactions
contemplated thereby, the Selling Partnership will furnish you, your Purchaser's
Trust or your Purchaser's Estate with a copy of the Sale Agreement, if any. In
the event that both KKR Partners and Strata Associates propose to sell shares of
Common Stock in the Proposed Sale, the term "Selling Partnership" shall refer
only to Strata Associates and not to KKR Partners.
2. The number of shares of Common Stock which you or your
Purchaser's Estate or Purchaser's Trust, as the case may be, will be permitted
to include in a Proposed Sale pursuant to a Request will be the lesser of (a)
the sum of the number of shares of Common Stock then owned by you or your
Purchaser's Estate or Purchaser's Trust, as the case may be, plus all shares of
Common Stock which you are then entitled to acquire under an unexercised option
to purchase shares of Common Stock, to the extent such option is then vested or
would become vested as a result of the consummation of the Proposed Sale and (b)
the sum of the shares of Common Stock then owned by you or your Purchaser's
Estate or Purchaser's Trust, as the case may be, plus all shares of Common Stock
which you are entitled to acquire under an unexercised option to purchase shares
of Common Stock, whether or not fully vested, multiplied by a percentage
calculated by dividing the aggregate number of shares of Common Stock which KKR
Partners and Strata Associates propose to sell in the Proposed Sale by the total
number of shares of Common Stock owned by the Selling Partnership or, in the
case both KKR Partners and Strata Associates propose to sell in the Proposed
Sale, KKR Partners and Strata Associates. If one or more holders of shares of
Common Stock who have been granted the same rights granted to you or your
Purchaser's Estate or Purchaser's Trust, as the case may be, hereunder elect not
to include the maximum number of shares of Common Stock which such holders would
have been permitted to include in a Proposed Sale (the "Eligible Shares"), KKR
Partners or Strata Associates, or such remaining holders of shares of Common
Stock, or any of them, may sell in the Proposed Sale a number of additional
shares of Common Stock owned by any of them equal to their pro rata portion of
the number of Eligible Shares not included in the Proposed Sale, based on the
relative number of shares of Common Stock then held by each such holder, and
such additional shares of Common Stock which any such holder or holders propose
to sell shall not be included in any calculation made pursuant to the first
sentence of this Paragraph 2 for the purpose of determining the number of shares
of Common Stock which you or your Purchaser's Estate or Purchaser's Trust, as
the case may be, will be permitted to include in a Proposed Sale. KKR Partners
and Strata Associates, or any of them, may sell in the Proposed Sale additional
shares of Common Stock owned by any of them equal to any remaining Eligible
Shares which will not be included in the Proposed Sale pursuant to the
foregoing.
3. If the Investors receive an offer from a person to purchase in a
Proposed Sale (a) at least a majority of the shares of Common Stock then
outstanding or (b) all or substantially all of the shares of Common Stock owned
by the Investors, and such offer is accepted by the Investors, then each of you,
your Purchaser's Estate and your Purchaser's Trust hereby agrees that, if
requested by the Investors (a "KKR Request"), you, your Purchaser's Estate and
your Purchaser's Trust will sell in such Proposed Sale on the same terms and
conditions (including, without limitation, time of payment and form of
consideration) as to be paid and given to the Investors, the number of shares of
Common Stock equal to the number of shares of Common Stock owned by you, your
Purchaser's Estate and your Purchaser's Trust multiplied by (x) in the case of a
Proposed Sale described in clause (a) above, the percentage of the then
outstanding
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shares of Common Stock to which the Proposed Sale is applicable or (y) in the
case of a Proposed Sale described in clause (b) above, the percentage of the
shares of Common Stock owned by the Investors to which the Proposed Sale is
applicable.
4. (a) Except as may otherwise be provided herein, shares of Common
Stock subject to a Request will be included in a Proposed Sale pursuant hereto
and in any agreements with purchasers relating thereto on the same terms and
subject to the same conditions applicable to the shares of Common Stock which
the Selling Partnership proposes to sell in the Proposed Sale. Such terms and
conditions shall include, without limitation: the sales price; the payment of
fees, commissions and expenses; the provision of, and representation and
warranty as to, information requested by Strata Associates; and the provision of
requisite indemnifications; provided that any indemnification provided by you,
your Purchaser's Estate or your Purchaser's Trust shall be pro rata in
proportion with the number of shares of Common Stock to be sold.
(b) In the event of a transaction (such as a merger or
consolidation) involving the Company which results in a change of control
transaction but is not a Proposed Sale (a "Proposed Transaction"), you agree on
behalf of yourself, your Purchaser's Estate and your Purchaser's Trust to bear
your pro rata share of any fees, commissions, adjustments to purchase price,
expenses or indemnities borne by the Investors.
(c) Your pro rata share of any amount pursuant to Paragraphs 4(a)
and (b) shall be based upon the number of shares of Common Stock owned by you,
your Purchaser's Estate and your Purchaser's Trust plus the number of shares of
Common Stock you would have the right to acquire under unexercised options which
are then vested or would become vested as a result of the Proposed Sale or
Proposed Transaction.
(d) The Investors shall be entitled to estimate the amount of fees,
commissions, adjustments to purchase price, expenses or indemnities in
connection with any Proposed Sale or Proposed Transaction and to withhold such
amounts from payments to be made to you, your Purchaser's Estate and your
Purchaser's Trust at the time of closing of such Proposed Sale or Proposed
Transaction; provided that, (i) such estimate shall not preclude the Investors
from recovering additional amounts from you, your Purchaser's Estate and your
Purchaser's Trust in respect of such fees, commissions, adjustments to purchase
price, expenses or indemnities and (ii) the Investors shall reimburse you, your
Purchaser's Estate and your Purchaser's Trust to the extent actual amounts are
ultimately less than the estimated amounts.
5. Upon delivering a Request, you or your Purchaser's Estate or
Purchaser's Trust, as the case may be, will, if requested by the Selling
Partnership, execute and deliver a custody agreement and power of attorney in
form and substance satisfactory to the Selling Partnership with respect to the
shares of Common Stock which are to be sold by you or your Purchaser's Estate or
Purchaser's Trust, as the case may be, pursuant hereto (a "Custody Agreement and
Power of Attorney"). The Custody Agreement and Power of Attorney will provide,
among other things, that you or your Purchaser's Estate or Purchaser's Trust, as
the case may be, will deliver to and deposit in custody with the custodian and
attorney-in-fact named therein a certificate or certificates representing such
shares of Common Stock (duly endorsed in blank by the registered owner or owners
thereof) and irrevocably appoint said custodian and attorney-in-fact as your or
your Purchaser's Estate's or Purchaser's Trust's, as the case may be, agent and
attorney-in-fact with full power and authority to act under the Custody
Agreement and Power of Attorney on your
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or your Purchaser's Estate's or Purchaser's Trust's, as the case may be, behalf
with respect to the matters specified therein.
6. Your or your Purchaser's Estate's or Purchaser's Trust's, as the
case may be, right pursuant hereto to participate in a Proposed Sale shall be
contingent on your or your Purchaser's Estate's or Purchaser's Trust's, as the
case may be, strict compliance with each of the provisions hereof and your or
your Purchaser's Estate's or Purchaser's Trust's, as the case may be,
willingness to execute such documents in connection therewith as may be
reasonably requested by the Selling Partnership.
7. The obligations of KKR Partners and Strata Associates hereunder
shall extend only to you or your Purchaser's Estate or Purchaser's Trust, as the
case may be, and no other of your or your Purchaser's Estate's or Purchaser's
Trust's, as the case may be, successors or assigns shall have any rights
pursuant hereto.
8. This Agreement shall terminate and be of no further force and
effect on the fifth anniversary of the first occurrence of a Public Offering (as
defined in the Purchase Agreement).
9. All notices and other communications provided for herein shall be
in writing and shall be deemed to have been duly given when delivered to the
party to whom it is directed:
(a) If to KKR Partners or Strata Associates, to it at the
following address:
x/x Xxxxxxxx Xxxxxx Xxxxxxx & Co.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
(b) If to you, to you at the address first set forth above herein;
(c) If to your Purchaser's Estate or Purchaser's Trust, at the
address provided to such partnerships by such entity;
or at such other address as any of the above shall have specified by notice in
writing delivered to the others by certified mail.
10. The laws of the State of Delaware (or if the Company
reincorporates in another state, of that state) shall govern the interpretation,
validity and performance of the terms of this Agreement. No suit, action or
proceeding with respect to this Agreement may be brought in any court or before
any similar authority other than in a court of competent jurisdiction in the
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State of Delaware (or if the Company reincorporates in another state, of that
state) or New York, as the Selling Partnerships may elect in their sole
discretion, and you hereby submit to the non-exclusive jurisdiction of such
courts for the purpose of such suit, proceeding or judgment. You hereby
irrevocably waive any right which you may have had to bring such an action in
any other court, domestic or foreign, or before any similar domestic or foreign
authority.
11. If KKR Partners or Strata Associates transfers its interest in
the Company to an affiliate of KKR Partners or Strata Associates, as the case
may be, such affiliate shall assume the obligations hereunder of KKR Partners or
Strata Associates, as the case may be.
This Agreement constitutes the full and entire understanding and
agreement between the undersigned and you with regards to the subjects hereof
and to the extent that you have previously executed an agreement with regard to
the subjects hereof, this Agreement shall supersede any such previous agreement.
It is the understanding of the undersigned that you are aware that
no Proposed Sale presently is contemplated and that such a sale may never occur.
This Agreement may be signed in counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
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If the foregoing accurately sets forth our agreement, please
acknowledge your acceptance thereof in the space provided below for that
purpose.
Very truly yours,
STRATA ASSOCIATES, L.P.
By: KKR ASSOCIATES (STRATA), L.P.
By: STRATA L.L.C.,
as General Partner
By: /s/ Xxxxxxx X. Xxxxxx
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KKR PARTNERS II, L.P.
By: KKR ASSOCIATES (STRATA), L.P.
By: STRATA L.L.C.,
as General Partner
By: /s/ Xxxxxxx X. Xxxxxx
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Accepted and agreed to:
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Trustee of the
Xxxxx X. Xxxxx Revocable Trust Under
Agreement Dated 6/16/82, As Amended
