SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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COLUMBIA SPORTSWEAR COMPANY
(Exact name of registrant as specified in its charter)
Oregon 93-0498284
(State of incorporation (I.R.S. Employer
or organization) Identification Number)
6600 North Baltimore, Portland, Oregon 97203
(Address of principal executive offices) (Zip Code)
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A.(c)(1), please check the
following box. [ ]
If this Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [ ]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [X]
Securities Act registration statement file number to which this form relates:
333-43199 (if applicable).
Securities to be registered pursuant to Section 12(b) of the Act: None
Securities to be registered pursuant to Section 12(g) of the Act: Common Stock
<PAGE>
Item 1. Description of Registrant's Securities to Be Registered
The information set forth in the Registrant's Registration Statement on
Form S-1 (Registration No. 333-43199) as filed with the Securities and Exchange
Commission (the "Commission") on December 24, 1997, as amended (the
"Registration Statement") under the caption "Description of Capital Stock" is
incorporated herein by reference and made a part hereof. A description of the
securities being registered will be included in the final Prospectus to be filed
with the Commission under Rule 424(b) under the caption "Description of Capital
Stock," and such description shall be deemed incorporated by reference into this
Registration Statement.
Item 2. Exhibits
Exhibit
Number Description
3.1 Second Amended and Restated Articles of Incorporation
3.2 1998 Restated Bylaws
3.3 Specimen Stock Certificate
10.1 1997 Stock Incentive Plan (incorporated by reference to Exhibit 10.1
of the Registration Statement)
10.2 Form of Incentive Stock Option Agreement (incorporated by reference to
Exhibit 10.2 of the Registration Statement)
10.3 Form of Nonstatutory Stock Option Agreement (incorporated by reference
to Exhibit 10.3 of the Registration Statement)
10.14 Deferred Compensation Conversion Agreement between the Registrant
and Don Santorufo, dated December 31, 1996 (incorporated by
reference to Exhibit 10.14 of the Registration Statement)
10.18 Form of Agreement Regarding Plan of Recapitalization among the
Registrant and Shareholders
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<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
Dated: March 23, 1998
COLUMBIA SPORTSWEAR COMPANY
By PATRICK D. ANDERSON
---------------------------
Patrick D. Anderson,
Chief Financial Officer
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SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
COLUMBIA SPORTSWEAR COMPANY
ARTICLE I
The name of the Corporation is Columbia Sportswear Company.
ARTICLE II
A. The Corporation is authorized to issue shares of two classes of stock:
50,000,000 shares of Common Stock and 10,000,000 shares of Preferred Stock.
B. Holders of Common Stock are entitled to one vote per share on any matter
submitted to the shareholders. On dissolution of the Corporation, after any
preferential amount with respect to the Preferred Stock has been paid or set
aside, the holders of Common Stock and the holders of any series of Preferred
Stock entitled to participate in the distribution of assets are entitled to
receive the net assets of the Corporation.
C. The Board of Directors is authorized, subject to limitations prescribed
by the Oregon Business Corporation Act, as amended from time to time (the
"Act"), and by the provisions of this Article, to provide for the issuance of
shares of Preferred Stock in series, to establish from time to time the number
of shares to be included in each series and to determine the designations,
relative rights, preferences and limitations of the shares of each series. The
authority of the Board of Directors with respect to each series includes
determination of the following:
(1) The number of shares in and the distinguishing designation of that
series;
(2) Whether shares of that series shall have full, special,
conditional, limited or no voting rights, except to the extent otherwise
provided by the Act;
(3) Whether shares of that series shall be convertible and the terms
and conditions of the conversion, including provision for adjustment of the
conversion rate in circumstances determined by the Board of Directors;
(4) Whether shares of that series shall be redeemable and the terms
and conditions of redemption, including the date or dates upon or after which
they shall be redeemable and the amount per share payable in case of redemption,
which amount may vary under different conditions or at different redemption
dates;
<PAGE>
(5) The dividend rate, if any, on shares of that series, the manner of
calculating any dividends and the preferences of any dividends;
(6) The rights of shares of that series in the event of voluntary or
involuntary dissolution of the Corporation and the rights of priority of that
series relative to the Common Stock and any other series of Preferred Stock on
the distribution of assets on dissolution; and
(7) Any other rights, preferences and limitations of that series that
are permitted by law to vary.
ARTICLE III
No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for conduct as a director,
provided that this Article shall not eliminate the liability of a director for
any act or omission for which such elimination of liability is not permitted
under the Oregon Business Corporation Act. No amendment to the Oregon Business
Corporation Act that further limits the acts or omissions for which elimination
of liability is permitted shall affect the liability of a director for any act
or omission which occurs prior to the effective date of the amendment.
ARTICLE IV
The Corporation shall indemnify to the fullest extent not prohibited by law
any current or former director of the Corporation who is made, or threatened to
be made, a party to an action, suit or proceeding, whether civil, criminal,
administrative, investigative or other (including an action, suit or proceeding
by or in the right of the Corporation), by reason of the fact that such person
is or was a director, officer, employee or agent of the Corporation or a
fiduciary within the meaning of the Employee Retirement Income Security Act of
1974 with respect to any employee benefit plan of the Corporation, or serves or
served at the request of the Corporation as a director, officer, employee or
agent, or as a fiduciary of an employee benefit plan, of another corporation,
partnership, joint venture, trust or other enterprise. The Corporation shall pay
for or reimburse the reasonable expenses incurred by any such current or former
director in any such proceeding in advance of the final disposition of the
proceeding if the person sets forth in writing (i) the person's good faith
belief that the person is entitled to indemnification under this Article and
(ii) the person's agreement to repay all advances if it is ultimately determined
that the person is not entitled to indemnification under this Article. No
amendment to this Article that limits the Corporation's obligation to indemnify
any person shall have any effect on such obligation for any act or omission that
occurs prior to the later of the effective date of the amendment or the date
notice of the amendment is given to the person. This Article shall not be deemed
exclusive of any
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<PAGE>
other provisions for indemnification or advancement of expenses of directors,
officers, employees, agents and fiduciaries that may be included in any statute,
bylaw, agreement, general or specific action of the Board of Directors, vote of
shareholders or other document or arrangement.
ARTICLE V
These Second Amended and Restated Articles of Incorporation ("Restated
Articles") shall become effective immediately upon filing. When these Restated
Articles become effective the following events shall occur in the order
presented: (i) the Agreement regarding Plan of Recapitalization among the
Corporation and the shareholders of the Corporation, dated March ___, 1998,
shall become effective, (ii) each outstanding share of nonvoting Common Stock
shall be converted into 1.0 fully paid and non-assessable share of voting Common
Stock and (iii) each outstanding share of Common Stock, including those shares
of Common Stock resulting from the operation of clauses (i) and (ii) of this
sentence, shall be converted into 0.59 fully paid and non-assessable shares of
Common Stock. No fractional shares shall be issued on conversion of the Common
Stock and nonvoting Common Stock, and the number of shares of Common Stock into
which shares held by each holder of record are converted shall be rounded up to
the nearest whole share.
ARTICLE VI
If the Corporation does not close a sale of shares of its Common Stock,
registered for sale to the public pursuant to the Securities Act of 1933, (the
"Public Offering") within 15 days of the registration statement (the
"Registration Statement") under which the Public Offering is being made being
declared effective by the Securities and Exchange Commission or, if the
Registration Statement is not declared effective by the Securities and Exchange
Commission on or before April 30, 1998, then Sections II.A and II.B of these
Restated Articles shall become inoperative and of no further force or effect
without any further action on the Corporation's behalf and shall be superseded
by the following:
A. The Corporation is authorized to issue 50,000,000 shares of voting
Common Stock, 40,000,000 shares of nonvoting Common Stock and 10,000,000 shares
of Preferred Stock.
B. Holders of voting Common Stock are entitled to one vote per share on any
matter submitted to the shareholders. Holders of nonvoting Common Stock have no
voting rights with respect to shares of nonvoting Common Stock except as
otherwise provided by law. On dissolution of the Corporation, after any
preferential amount with respect to the Preferred Stock has been paid or set
aside, the holders of voting Common Stock, the holders of nonvoting Common
Stock, and the holders of any series of Preferred Stock entitled to participate
in the distribution of the assets are entitled to receive the net assets of the
Corporation.
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<PAGE>
ARTICLE VII
If Sections II.A and II.B as set forth in Article VI become effective
pursuant to the terms of Article VI, the officers of the Corporation are
authorized to cause these Restated Articles to be further restated, in
accordance with the terms of Article V and Article VI of these Restated
Articles, to delete Articles V, VI and VII and to revise Article II if required
by operation of Article VI.
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1998 RESTATED BYLAWS
OF
COLUMBIA SPORTSWEAR COMPANY
ARTICLE I
SHAREHOLDERS MEETINGS
1.1 Annual Meeting. The annual meeting of the shareholders shall be held on
the second Tuesday in May of each year at 2 p.m., unless a different date or
time is fixed by the Board of Directors and stated in the notice of the meeting.
1.2 Special Meetings. Special meetings of the shareholders, for any
purposes, unless otherwise prescribed by statute, may be called by the President
or the Board of Directors.
1.3 Place of Meetings. Meetings of the shareholders shall be held at any
place in or out of Oregon designated by the Board of Directors.
1.4 Meeting by Telephone Conference. Shareholders may participate in an
annual or special meeting by, or conduct the meeting through, use of any means
of communications by which all shareholders participating may simultaneously
hear each other during the meeting, except that no meeting for which a written
notice is sent to shareholders may be conducted by this means unless the notice
states that participation in this manner is permitted and describes how any
shareholder desiring to participate in this manner may notify the Corporation.
1.5 Notice of Shareholder Business and Nominations.
(1) Annual Meetings of Shareholders.
(a) Nominations of persons for election to the Board of Directors
of the Corporation and the proposal of business to be considered by the
shareholders may be made at an annual meeting of shareholders (i) pursuant to
the Corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (ii) by any shareholder of the Corporation who was a shareholder of
record both when notice is given as provided for in this Section 1.5 and on the
date of the annual meeting, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section 1.5.
(b) For nominations or other business to be properly brought
before an annual meeting by a shareholder pursuant to this Section 1.5, the
shareholder
<PAGE>
must have given timely notice thereof in writing to the Secretary of the
Corporation and such other business must be a proper matter for shareholder
action. To be timely, a shareholder's notice must be delivered to the Secretary
at the principal executive offices of the Corporation not later than the close
of business on the 60th day nor earlier than the close of business on the 90th
day prior to the first anniversary of the preceding year's annual meeting;
provided, however, that if the date of the annual meeting is more than 30 days
before or more than 60 days after the anniversary date, notice by the
shareholder to be timely must be so delivered not earlier than the close of
business on the 90th day prior to the annual meeting and not later than the
close of business on the later of the 60th day prior to such annual meeting or
the 10th day following the day on which public announcement of the date of such
meeting is first made by the Corporation. The public announcement of an
adjournment of an annual meeting will not commence a new time period for the
giving of a shareholder's notice as described above. The shareholder's notice
shall set forth (i) as to each person whom the shareholder proposes to nominate
for election or reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors in an election contest or is otherwise required, in each case pursuant
to Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected); (ii) as
to any other business that the shareholder proposes to bring before the meeting,
a brief description of the business desired to be brought before the meeting,
the reasons for conducting the business at the meeting and any material interest
in the business of such shareholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (iii) as to the shareholder giving the notice
and the beneficial owner, if any, on whose behalf the nomination or proposal is
made, (a) the name and address of such shareholder and of such beneficial owner,
as they appear on the Corporation's books, and (b) the class and number of
shares of the Corporation owned beneficially and of record by such shareholder
and such beneficial owner.
(c) Notwithstanding anything in this Section 1.5 to the contrary,
if the number of directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement by the Corporation
naming all of the nominees for director or specifying the size of the increased
Board of Directors at least 70 days prior to the first anniversary of the
preceding year's annual meeting, a shareholder's notice required by this Section
1.5 shall also be considered timely (but only with respect to nominees for any
new positions created by such increase) if it is delivered to the Secretary at
the principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which the public announcement is
first made by the Corporation.
(2) Special Meetings of Shareholders. Only business that has been
brought before a special meeting of shareholders pursuant to the Corporation's
notice of meeting shall be conducted at a special meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of shareholders at which
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<PAGE>
directors are to be elected pursuant to the Corporation's notice of meeting (a)
by or at the direction of the Board of Directors or (b) if the Board of
Directors has determined that directors shall be elected at the meeting, by any
shareholder of the Corporation who is a shareholder of record at the time of
giving of notice provided for in this Section 1.5, who is entitled to vote at
the meeting and who complies with the notice procedures set forth in this
Section 1.5. If the Corporation calls a special meeting of shareholders for the
purpose of electing one or more directors to the Board of Directors, any such
shareholder may nominate a person or persons (as the case may be), for election
to the position(s) specified in the Corporation's notice of meeting, if the
shareholder's notice required by this Section 1.5 is delivered to the Secretary
at the principal executive offices of the Corporation not earlier than the close
of business on the 90th day prior to the special meeting and not later than the
close of business on the later of the 60th day prior to the special meeting or
the 10th day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at the meeting. The public announcement of an
adjournment of a special meeting shall not commence a new time period for the
giving of a shareholder's notice as described above.
(3) General.
(a) Only the persons nominated in accordance with this Section
1.5 shall be eligible to serve as directors, and only the business that has been
brought before a meeting of shareholders in accordance with the procedures set
forth in this Section 1.5 shall be conducted at the meeting. Except as otherwise
provided by law, the articles of incorporation of the Corporation or these
bylaws, the Chairman of the meeting shall have the power and duty to determine
whether a nomination or any business proposed to be brought before the meeting
was made or proposed in accordance with the procedures set forth in this Section
1.5 and, if any proposed nomination or business is not in compliance with this
Section 1.5, to declare that such defective proposal or nomination be
disregarded.
(b) For the purposes of these bylaws, "public announcement" means
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission.
(c) Notwithstanding the foregoing provisions of Section 1.5, a
shareholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in Section 1.5. Nothing in Section 1.5 shall affect any rights of
shareholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to rules under the Exchange Act.
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<PAGE>
ARTICLE II
BOARD OF DIRECTORS
2.1 Number and Term. The number of directors of the Corporation shall be at
least three and no more than nine. Within this range, the number of directors at
the time of the adoption of these Restated Bylaws shall be six, and the number
of directors shall otherwise be determined from time to time by the Board of
Directors.
2.2 Regular Meetings. A regular meeting of the Board of Directors shall be
held without notice other than this Bylaw immediately after, and at the same
place as, the annual meeting of shareholders.
2.3 Special Meetings. Special meetings of the Board of Directors may be
called by the President or any two directors. The person or persons authorized
to call special meetings of the Board of Directors may fix any place in or out
of Oregon as the place for holding any special meeting of the Board of Directors
called by them.
2.4 Notice. Notice of the date, time and place of any special meeting of
the Board of Directors shall be given at least 24 hours prior to the meeting by
notice communicated in person, by telephone, telegraph, teletype, other form of
wire or wireless communication, mail or private carrier. If written, notice
shall be effective at the earliest of (a) when received, (b) three days after
its deposit in the United States mail, as evidenced by the postmark, if mailed
postpaid and correctly addressed, or (c) on the date shown on the return
receipt, if sent by registered or certified mail, return receipt requested and
the receipt is signed by or on behalf of the addressee. Notice by all other
means shall be deemed effective when received by or on behalf of the director.
ARTICLE III
OFFICERS
3.1 Appointment. The Board of Directors at its first meeting following its
election each year shall appoint a President and a Secretary. The Board of
Directors may appoint any other officers, assistant officers and agents. Any two
or more offices may be held by the same person.
3.2 Compensation. The Corporation may pay its officers reasonable
compensation for their services as fixed from time to time by the Board of
Directors.
3.3 Term. The term of office of all officers commences upon their
appointment and continues until their successors are appointed or until their
resignation or removal.
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<PAGE>
3.4 Removal. Any officer or agent appointed by the Board of Directors may
be removed by the Board of Directors at any time with or without cause.
3.5 President. Unless otherwise determined by the Board of Directors, the
President shall be the chief executive officer of the Corporation and, subject
to the control of the Board of Directors, shall be responsible for the general
operation of the Corporation. The President shall have any other duties and
responsibilities prescribed by the Board of Directors. Unless otherwise
determined by the Board of Directors, the President shall have authority to vote
any shares of stock owned by the Corporation and to delegate this authority to
any other officer.
3.6 Vice Presidents. Each Vice President shall perform duties and
responsibilities prescribed by the Board of Directors or the President. The
Board of Directors or the President may confer a special title upon a Vice
President.
3.7 Secretary. The Secretary shall record and keep the minutes of all
meetings of the directors and shareholders in one or more books provided for
that purpose and perform any duties prescribed by the Board of Directors or the
President.
ARTICLE IV
ISSUANCE OF SHARES
4.1 Adequacy of Consideration. The authorization by the Board of Directors
of the issuance of shares for stated consideration shall evidence a
determination by the Board that such consideration is adequate.
4.2 Certificates for Shares. Certificates representing shares of the
Corporation shall be signed, either manually or in facsimile, by two officers of
the Corporation, at least one of whom shall be the President or a Vice
President.
ARTICLE V
AMENDMENTS
These Bylaws may be amended or repealed and new Bylaws may be adopted by
the Board of Directors or the shareholders of the Corporation.
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<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Number [Logo] Shares
CSC
Common Stock INCORPORATED UNDER THE LAWS OF THE STATE OF OREGON SEE REVERSE FOR
CERTAIN RESTRICTIONS
AND DEFINITIONS
CUSIP 198516 10 6
This Certifies that
SPECIMEN
is the owner of
FULLY PAID AND NONASSESSABLE SHARES OF COMMON STOCK OF
COLUMBIA SPORTSWEAR COMPANY
transferable on the books of the Corporation by the holder hereof in person or by
duly authorized attorney upon surrender of this certificate properly endorsed.
This certificate is not valid until countersigned by the Transfer Agent and
registered by the Registrar.
WITNESS the facsimile seal of the Corporation and the
facsimile signatures of its duly authorized officers.
Dated:
COLUMBIA SPORTSWEAR COMPANY
CORPOATE SEAL
OREGON
TIMOTHY P. BOYLE GERTRUDE BOYLE
PRESIDENT CHAIRMAN OF THE BOARD
COUNTERSIGNED AND REGISTERED:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
TRANSFER AGENT AND REGISTER
BY
AUTHORIZED SIGNATURE
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
The Corporation is authorized to issue different classes of shares or different series within a class. The Corporation will
furnish to any shareholder upon request and without charge a full statement of the designations, preferences, limitations and
relative rights applicable to each class authorized to be issued and the variations in the rights, preferences and limitations
between the shares of each series so far as the same has been determined. The board of directors is authorized to determine the
relative rights and preferences of a series before the issuance of any shares of that series.
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they
were written out in full according to applicable laws or regulations:
<S> <C>
TEN COM -- as tenants in common (Oregon Custodians use the following)
TEN ENT -- as tenants by the entireties (Name) CUST UL OREG (Name) MIN -- ............................. as Custodian under
JT TEN -- as joint tenants with rights
of survivorship and not as the laws of Oregon, for ........................
tenants in common a minor
(Name) CUST (Name) (State) UNIF GIFT MIN ACT -- .............Custodian............
(Cust) (Minor)
Under .............. Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received, __________________________________________________________________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
- -----------------------------
- -----------------------------
____________________________________________________________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
____________________________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________________ Shares
of the common stock represented by the within Certificate, and do hereby irrevocably constitute and appoint
___________________________________________________________________________________________________________________________ Attorney
to transfer the said stock on the books of the within named Corporation with full power of substitution in the premises.
Dated __________________________________________
____________________________________________________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN
UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
Signature(s) Guaranteed:
By _____________________________________________________________
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
</TABLE>
AGREEMENT REGARDING PLAN OF RECAPITALIZATION
This Agreement Regarding Plan of Recapitalization (this "Agreement") is
made this ____ day of __________, 1998, by and among Columbia Sportswear
Company, an Oregon corporation (the "Company"), and the shareholders of the
Company (collectively the "Shareholders" and each individually a "Shareholder")
listed on Schedule A attached hereto.
RECITALS
A. The Shareholders constitute the holders of all of the issued and
outstanding capital stock of the Company. The Shareholders own the shares of
Company voting common stock ("Voting Stock") and Company nonvoting common stock
("Nonvoting Stock") listed on Schedule A.
B. The Company has filed a registration statement on Form S-1 with the
Securities and Exchange Commission (the "SEC") and contemplates completion of
its initial public offering (the "IPO"). The managing underwriter of the IPO has
recommended, for marketing and pricing reasons, that the Company enter the
public market with a single class voting structure.
C. The Company has received an opinion from Corporate Valuations, Inc.
concluding that an equal dollar value of stock holdings of each Shareholder will
be maintained, both before and after an exchange of existing Nonvoting Stock for
newly issued Voting Stock, if (1) Gertrude Boyle receives in the exchange 1.0
share of Voting Stock for each 0.58643200 shares of Voting Stock held by her
immediately before the exchange, (2) each other holder of Voting Stock receives
in the exchange 1.0 share of Voting Stock for each 0.93500000 shares of Voting
Stock held by the shareholder immediately before the exchange, and (3) each
holder of the Company's Nonvoting Stock receives in the exchange 1.0 share of
Voting Stock for each 1.0 share of Nonvoting Stock held by the shareholder
immediately before the exchange.
D. Gertrude Boyle, who currently owns 1,528,000 shares of Voting Stock,
would receive 2,605,588 shares of Voting Stock upon an exchange in which she
receives 1.0 share of Voting Stock for each 0.58643200 shares of Voting Stock
held by her immediately before the exchange, which represents 1,077,588 shares
of Voting Stock more than she currently owns.
E. Timothy P. Boyle, who currently owns 830,800 shares of Voting Stock,
would receive 888,556 shares of Voting Stock upon an exchange in which he
receives 1.0 share of Voting Stock for each 0.93500000 shares of Voting Stock
held by him immediately before the exchange, which represents 57,756 shares of
Voting Stock more than he currently owns.
<PAGE>
F. Sarah Bany, who currently owns 130,000 shares of Voting Stock, would
receive 139,037 shares of Voting Stock upon an exchange in which she receives
1.0 share of Voting Stock for each 0.93500000 shares of Voting Stock held by her
immediately before the exchange, which represents 9,037 shares of Voting Stock
more than she currently owns.
G. Don Richard Santorufo, who currently owns 275,948 shares of Voting
Stock, would receive 295,132 shares of Voting Stock upon an exchange in which he
receives 1.0 share of Voting Stock for each 0.93500000 shares of Voting Stock
held by him immediately before the exchange, which represents 19,184 shares of
Voting Stock more than he currently owns.
H. The board of directors of the Company (the "Board") has determined that
the plan of recapitalization provided for herein (the "Plan") is fair to, and in
the best interests of, the holders of the Company's capital stock. Resolutions
of the Board are attached hereto as Exhibit A.
I. The Board and the Shareholders intend that the holdings of each
Shareholder will revert to their respective holdings of Voting Stock and
Nonvoting Stock that existed prior to the Effective Time (as defined below) if
the registration statement for the IPO is not declared effective by the SEC on
or before April 30, 1998, or if the IPO does not close within 15 days of the
date the registration statement for the IPO is declared effective by the SEC.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties agree as follows:
1. Recapitalization. Subject to the terms and conditions of this Agreement,
and in accordance with the provisions of the Oregon Business Corporation Act
(the "OBCA"), at the Effective Time (as defined below) the capital stock of the
Company shall be recapitalized (the "Recapitalization") as follows:
(a) The Company shall issue to Gertrude Boyle, without any action on
her part, 1,077,588 shares of fully paid and nonassessable Voting Stock.
(b) The Company shall issue to Timothy P. Boyle, without any action on
his part, 57,756 shares of fully paid and nonassessable Voting Stock.
(c) The Company shall issue to Sarah Bany, without any action on her
part, 9,037 shares of fully paid and nonassessable Voting Stock.
(d) The Company shall issue to Don Richard Santorufo, without any
action on his part, 19,184 shares of fully paid and nonassessable Voting Stock.
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(e) Pursuant to an amendment to the Company's Restated Articles of
Incorporation, each 1.0 share then outstanding of Nonvoting Stock shall, without
any action on the part of the holder thereof, be recapitalized as, and converted
into, 1.0 fully paid and nonassessable share of Voting Stock of the Company.
(f) All shares of Voting Stock issued and outstanding immediately
before the Effective Time shall be unaffected and shall remain issued and
outstanding at and after the Effective Time.
2. Effective Time. The Recapitalization shall become effective in
accordance with the Company's Second Amended and Restated Articles of
Incorporation substantially in the form of Exhibit B attached hereto with the
Secretary of State of the State of Oregon (the "Restated Articles"). The
Restated Articles shall be filed prior to the time the registration statement
registering the IPO (File No. 333-43199) (the "Registration Statement") is
declared effective by the SEC. The date and time when the Recapitalization shall
become effective is referred to herein as the Effective Time.
3. Exchange. Upon surrender of a certificate or certificates formerly
representing shares of Nonvoting Stock, the holder thereof shall be entitled to
receive in exchange a new certificate evidencing the shares of Voting Stock into
which such shares were recapitalized and converted.
4. Restricted Stock and Options.
(a) The Company shall take such actions as are necessary with respect
to any restricted stock agreement between the Company and any employee of the
Company to provide that the shares issued to any holder of restricted stock in
the Recapitalization shall be issued with regard to, and shall remain subject
to, the restrictions set forth in such restricted stock agreement.
(b) The Company shall take such actions as are necessary to cause each
option to purchase Nonvoting Stock to be adjusted so that, subject to the terms
and conditions of the Company's Stock Incentive Plan and the terms and
conditions of such options, upon exercise the holder will be entitled to acquire
1.0 share of Voting Stock for each former right to purchase 1.0 share of
Nonvoting Stock; provided, however, that options to acquire Nonvoting Stock
shall not be adjusted to entitle holders to acquire Voting Stock if the
Registration Statement is not declared effective by the SEC on or before April
30, 1998 or if the IPO does not close within 15 days of the date the
Registration Statement is declared effective by the SEC.
5. Conditions Precedent to Consummation of the Recapitalization. The
consummation of the Recapitalization is subject to the satisfaction or waiver at
or prior to the Effective Time of each of the following conditions:
3
<PAGE>
(a) Litigation. No action, proceeding, or investigation shall have
been instituted or threatened prior to the Effective Time before any court or
administrative body to restrain, enjoin, or otherwise prevent the consummation
of the Plan or this Agreement or the transactions contemplated hereby or to
recover any damages or obtain other relief as a result of the Plan or this
Agreement or the transactions contemplated hereby, and no restraining order or
injunction issued by any court of competent jurisdiction shall be in effect
prohibiting the consummation of the Plan or this Agreement or any of the
transactions contemplated hereby.
(b) Actions and Proceedings. All actions, proceedings, instruments,
and documents required to carry out the transactions contemplated by, or
incidental to, the Plan or this Agreement and all other related legal matters,
including the Consent of Shareholders attached hereto as Exhibit C, shall have
been completed to the reasonable satisfaction of the Company, and such counsel
shall have been furnished with certified copies of such corporate actions and
proceedings and such other instruments and documents as such counsel shall have
reasonably requested.
6. Condition Subsequent to Consummation of the Recapitalization. If the
Registration Statement is not declared effective by the SEC on or before April
30, 1998, or if the closing of the IPO does not occur within 15 days of the
Registration Statement being declared effective by the SEC, then (1) Gertrude
Boyle will surrender for cancellation 1,077,588 shares of Voting Stock issued to
her pursuant to this Agreement and will exchange shares of Voting Stock received
by her pursuant to the Conversion set forth in the Restated Articles for an
equal number of shares of Nonvoting Stock, (2) Timothy Boyle will surrender for
cancellation 57,756 shares of Voting Stock issued to him pursuant to this
Agreement and will exchange shares of Voting Stock received by him pursuant to
the Conversion set forth in the Restated Articles for an equal number of shares
of Nonvoting Stock, (3) Sarah Bany will surrender for cancellation 9,037 shares
of Voting Stock issued to her pursuant to this Agreement and will exchange
shares of Voting Stock received by her pursuant to the Conversion set forth in
the Restated Articles for an equal number of shares of Nonvoting Stock, (4) Don
Richard Santorufo will surrender for cancellation 19,184 shares of Voting Stock
issued to him pursuant to this Agreement and will exchange shares of Voting
Stock received by him pursuant to the Conversion set forth in the Restated
Articles for an equal number of shares of Nonvoting Stock and (5) all other
parties to this Agreement will exchange shares of Voting Stock received by them
pursuant to the Conversion set forth in the Restated Articles for an equal
number of shares of Nonvoting Stock (the "Reversion"). All share numbers set
forth in the foregoing sentence shall be appropriately adjusted to reflect the
reverse stock split set forth in the Restated Articles. The parties to this
Agreement agree to take any and all actions necessary or appropriate to cause
the Reversion if the IPO does not close or become effective by the time
specified above.
7. Termination and Abandonment. This Plan and Agreement may be terminated
and the transactions contemplated hereby may be abandoned by the Board at
4
<PAGE>
any time prior to the effectiveness of the Restated Articles in accordance with
Section 2 hereof.
8. Successors and Assigns. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties.
9. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Company: COLUMBIA SPORTSWEAR COMPANY
By:
-------------------------------------
Timothy P. Boyle, President
5
<PAGE>
SHAREHOLDERS:
-----------------------------------------
Gertrude Boyle
-----------------------------------------
Gertrude Boyle, Trustee, Gertrude Boyle
Trust #1 u/a dtd 12/15/97
-----------------------------------------
Gertrude Boyle, Trustee, Gertrude Boyle
Trust #2 u/a dtd 12/15/97
-----------------------------------------
Timothy P. Boyle
-----------------------------------------
Mary R. Boyle, Trustee u/a/d September
18, 1997 f/b/o Molly E. Boyle
-----------------------------------------
Mary R. Boyle, Trustee u/a/d September
18, 1997 f/b/o Joseph P. Boyle
-----------------------------------------
Sarah A. Bany
-----------------------------------------
David C. Bany, Trustee of the Bany Family
Trust u/a/d July 31, 1997
-----------------------------------------
Sarah A. Bany, Trustee, Sarah A. Bany
Trust #1 u/a dtd 12/15/97
6
<PAGE>
-----------------------------------------
Sarah A. Bany, Trustee, Sarah A. Bany
Trust #2 u/a dtd 12/15/97
-----------------------------------------
Don Richard Santorufo
7
<PAGE>
<TABLE>
<CAPTION>
Schedule A
----------
Company Shareholders
Voting Non-Voting Total
--------- ---------- ----------
<S> <C> <C> <C>
Gertrude Boyle 1,528,000 2,749,104 4,277,104
Tim Boyle 830,800 5,487,050 16,317,850
Sarah Bany 130,000 3,923,911 4,053,911
Don Santorufo 275,948 2,756,452 3,032,400
David C. Bany, -- 200,000 200,000
Trustee Bany
Family Trust
Mary R. Boyle, -- 105,000 105,000
Trustee fbo
Joseph Boyle
Mary R. Boyle, -- 105,000 105,000
Trustee fbo
Molly Boyle
Sarah A. Bany, -- 557,414 557,414
Trustee Sarah A.
Bany Trust #1 u/a
dtd 12/15/97
Sarah A. Bany, -- 557,414 557,414
Trustee Sarah A.
Bany Trust #2 u/a
dtd 12/15/97
Gertrude Boyle, -- 740,740 740,740
Trustee Gertrude Boyle
Trust #1 u/a dtd
12/15/97
Gertrude Boyle, -- 740,740 740,740
Trustee Gertrude Boyle
Trust #2 u/a dtd
12/15/97
</TABLE>
8
