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EXHIBIT 10.2
MINORITY SHAREHOLDER PURCHASE AGREEMENT
BY AND AMONG
QUIKSILVER, INC.
QUIKSILVER AUSTRALIA PTY LTD
AND
SHAREHOLDERS OF QUIKSILVER INTERNATIONAL PTY LTD.
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MINORITY SHAREHOLDER PURCHASE AGREEMENT
This MINORITY SHAREHOLDER PURCHASE AGREEMENT ("Agreement") is made and
entered into on the ______ day of July, 2000 by and among Quiksilver, Inc., a
Delaware corporation ("Parent"), Quiksilver Australia Pty Ltd, ACN 091 136 195,
a Victoria corporation ("Buyer"), Quiksilver International Pty Ltd, ACN 005 575
548, a Victoria corporation (the "Company"), the shareholders of the Company
listed on Exhibit A attached hereto (the "Shareholders"), and Alan Green and
John Law. For purposes of this Agreement, the terms set forth in Exhibit 1 shall
have the meanings specified or referred to therein.
R E C I T A L S
A. The Shareholders own in the aggregate 13.33% of the issued ordinary
shares of the Company (the "Shares").
B. Buyer desires to purchase all of the Shares owned by the
Shareholders, and the Shareholders desire to sell such Shares, on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual representations,
warranties and agreements contained herein, the parties hereto agree as follows.
ARTICLE I
PURCHASE AND SALE OF SHARES
Section 1.1 Purchase and Sale. Each of the Shareholders hereby sells to
Buyer, and Buyer hereby purchases from such Shareholder, that number of Shares
which is identified on Exhibit A attached hereto across from such Shareholder's
name on Exhibit A, in exchange for the purchase price provided in Section 1.2.
Section 1.2 Purchase Price. At Closing, Buyer shall pay to each Shareholder
the amount equal to the product of (i) AUD21.0538, times (ii) the number of
Shares held by such Shareholder.
Section 1.3 Election of Minority Shareholders. Each Minority Shareholder
acknowledges and agrees that it was provided the option to be a party to the
Share Purchase Agreement and elected not to so participate in consideration of
the payment to be made hereunder. By electing not to be a party to the Share
Purchase Agreement, each Minority Shareholder hereby waives any rights to
receive any amounts that he could have received under the Share Purchase
Agreement.
Section 1.4 Closing. The closing of the transactions contemplated by this
Agreement ("Closing") shall take place at such location, time and date as the
parties may fix ("Closing Date").
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Section 1.5 Deliveries at Closing. At the Closing:
(a) The Company and the Shareholders' Representative hereby deliver to
Buyer:
(i) certificates representing the Shares being sold by the
Shareholders under this Agreement; and
(ii) instruments of transfer of the Shares in favor of the Buyer
or its nominee which have been duly executed by the Shareholders and are in
registrable form.
(b) Buyer hereby delivers by wire transfer to the Shareholder's
Representative for each Shareholder an amount equal to the consideration to be
paid to such Shareholder under Section 1.2.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PARENT AND BUYER
Except as set forth in the attached Schedule (which lists exceptions
to the following representations and warranties and also contains matters
required to be disclosed pursuant to this Article II, each of which corresponds
to the numbered sections contained in this Article II), Parent and Buyer jointly
and severally represent and warrant to the Shareholders as follows:
Section 2.1 Organization; Qualification. Each of Parent and Buyer (a) is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation; (b) has the corporate power and authority
to carry on its business as now conducted; (c) has delivered to the Company
complete and correct copies of its charter documents as currently in effect; and
(d) is qualified to do business and is in good standing in each jurisdiction in
which the property owned, leased or operated by it or the business conducted by
it makes such qualification necessary.
Section 2.2 Authority. Each of Parent and Buyer has full corporate power
and authority to execute and deliver this Agreement, and to perform its
obligations under, and to consummate the transactions contemplated by, this
Agreement, and all corporate action of it necessary for such execution, delivery
and performance has been duly and validly taken as required by law or under its
charter documents. This Agreement constitutes the legal, valid and binding
obligation of Parent and Buyer enforceable in accordance with its terms against
them. The execution and delivery of this Agreement by Parent and Buyer do not,
and the performance and consummation by them of the transactions contemplated by
this Agreement, will not (a) conflict with, constitute or result in a breach or
violation of, or default under, any of the terms, conditions or provisions of
any material note, bond, mortgage, indenture, lease, license, agreement,
contract or other instrument or obligation to which they are a party or by which
any of their respective assets or properties are bound; (b) violate any
judgment, order, injunction, decree, statute, rule, or regulation applicable to
them or any of their respective assets or properties; (c) contravene, violate or
be impermissible under their charter documents; or (d) permit any party to
terminate any lease, contract, agreement or other instrument to which they are a
party or to accelerate the maturity of any of their indebtedness.
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Section 2.3 No Consents. Except as contemplated by this Agreement, neither
the execution of this Agreement by Parent and Buyer, nor the consummation of the
transactions contemplated hereby, require the consent or approval of, or
declaration, filing or registration with, any governmental authority.
Section 2.4 No Broker or Finder. Neither Parent nor Buyer has had
discussions with, negotiated with, been represented by or employed any broker or
finder or incurred any liability for any brokerage fees, commissions or finder's
fees to any individual or entity in connection with this Agreement or any of the
transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each Shareholder represents and warrants to Buyer and Parent as follows:
Section 3.1 Title to Shares. Such Shareholder is the owner of the number of
Shares indicated on Exhibit A attached hereto across from such Shareholder's
name. No other person or entity has any right, title, or interest, beneficially
or of record, in or to such Shares owned by such Shareholder, other than
beneficiaries of a trust of which such Shareholder is a trustee, and such Shares
are free and clear of any claims, liens, encumbrances, security agreements,
equities, options, charges, or restrictions, and can be delivered and
surrendered to Buyer pursuant hereto without obtaining the consent or approval
of any other person or governmental authority. Upon the transfer and delivery of
such Shares to Buyer in accordance with this Agreement and payment therefor,
Buyer will become the owner and holder of all of such Shares free and clear of
all liens, encumbrances, pledges, claims, charges and restrictions on transfer.
Section 3.2 Authority. This Agreement constitutes the legal, valid, and
binding obligation of such Shareholder enforceable in accordance with its terms.
The consummation of the transactions contemplated by this Agreement and
fulfillment of the terms hereof will not breach any of the terms and provisions
of, or constitute a default by such Shareholder under, any agreement or
instrument to which such Shareholder is a party or by which such Shareholder is
bound, or any statute, ruling, decree, judgment, order or regulation of any
governmental authority having jurisdiction over such Shareholder or such
Shareholder's property; and no consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation by such
Shareholder of the transactions on such Shareholder's part contemplated hereby.
Section 3.3 No Challenges. There has not been commenced or, to such
Stockholder's knowledge, threatened any legal proceeding or other action (i)
involving any challenge to, or seeking damages or other relief in connection
with, any of the transactions contemplated by this Agreement, or (ii) that may
have the effect of preventing, delaying, making illegal, or otherwise
interfering with any of the transactions contemplated by this Agreement.
Section 3.4 No Indebtedness. Neither such Shareholder nor any of its
Affiliates owes any indebtedness to the Company.
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ARTICLE IV
ADDITIONAL COVENANTS AND AGREEMENTS
Section 4.1 Shareholders' Representative.
(a) In order to administer efficiently the rights and obligations of
the Shareholders under this Agreement, the Shareholders hereby designate and
appoint Alan Green and John Law jointly as the Shareholders' Representative, to
serve as the Shareholders' agent and attorney-in-fact for the limited purposes
set forth in Section 4.1(b) of this Agreement.
(b) Each of the Shareholders hereby appoints the Shareholders'
Representative as such Shareholder's agent, proxy and attorney-in-fact, with
full power of substitution, for all purposes set forth in this Agreement,
including, without limitation, the full power and authority on such
Shareholder's behalf (i) to consummate the transactions contemplated by this
Agreement, (ii) to disburse any funds received hereunder to the Shareholders,
(iii) to execute and deliver any certificates representing the Shares and
execution of such further instruments of assignment as Buyer shall reasonably
request, (iv) to execute and deliver on behalf of each Shareholder any amendment
or waiver under this Agreement, (v) to retain legal counsel and other
professional services in connection with the performance by the Shareholders'
Representative of this Agreement, and (vi) to do each and every act and exercise
any and all rights which such Shareholder or Shareholders are permitted or
required to do or exercise under this Agreement and the other agreements,
documents and certificates executed in connection herewith. Each of the
Shareholders agrees that such agency and proxy are coupled with an interest, are
therefore irrevocable without the consent of the Shareholders' Representative
and shall survive the death, bankruptcy or other incapacity of any Shareholder;
provided that such agency and proxy shall terminate if this Agreement is
terminated pursuant to its terms.
(c) Alan Green and John Law jointly shall serve as the Shareholders'
Representative until one of them resigns or is otherwise unable or unwilling to
serve. In the event that Alan Green or John Law resigns or is otherwise unable
or willing to serve, the other shall serve alone as the Shareholders'
Representative. In the event that both Alan Green and John Law resign or are
otherwise unable to unwilling to serve, the remaining Shareholders shall select,
by the vote of a majority of the holders of the Shares, a successor
representative to fill such vacancy, shall provide prompt written notice to
Parent and Buyer of such change and such substituted representative shall then
be deemed to be the Shareholders' Representative for all purposes of this
Agreement.
Section 4.2 Announcements. The notices to the general public and the press
relating to the transactions contemplated by this Agreement shall be made only
at such time and in such manner as may be mutually agreed upon by Buyer and the
Company; provided, however, that any party shall be entitled to make a public
announcement about such transactions if, in the opinion of its counsel, such
announcement is required to comply with any applicable law, rule or regulation.
Information provided by either party to third parties whose assistance and
cooperation may, in the judgment of such informing party, be required to the
successful consummation of the transactions contemplated by this Agreement, and
information provided by
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either party to its employees with respect to such transactions, shall not be
construed as a general notice, release, statement or communication within the
meaning or intent of this section.
Section 4.3 Guaranty of Buyer's Obligations. Parent hereby guarantees all
of the obligations of Buyer under this Agreement and any agreement attached
hereto as an exhibit.
Section 4.4 Stamp Duty. The Shareholders, jointly and severally, shall be
responsible for and pay fifty percent (50%) of, and the Buyer shall be
responsible for and pay fifty percent (50%) of, the stamp duty resulting from
this Agreement and the transactions contemplated hereunder.
ARTICLE V
GENERAL PROVISIONS
Section 5.1 Notices. All notices, demands, requests, consents, approvals or
other communications (collectively "Notices") required or permitted to be given
hereunder or which are given with respect to this Agreement shall be in writing
and will be deemed to have been duly given when (a) delivered by hand (with
written confirmation of receipt), (b) sent by telecopier (with written
confirmation of receipt), provided that a copy is mailed by registered or
certified mail, return receipt requested, or (c) when received by the addressee,
if sent by mail, registered or certified (return receipt requested), in each
case to the appropriate addresses and facsimile numbers set forth below (or to
such other addresses and facsimile numbers as a party may designate by notice to
the other parties):
If to Parent or Buyer: Quiksilver, Inc.
15202 Graham Street
Huntington Beach, CA 92649
Attention: Robert B. McKnight, Jr.
Telephone: (714) 889-4279
Facsimile: (714) 889-2323
With Copies to: Hewitt & McGuire, LLP
19900 MacArthur Boulevard
Suite 1050
Irvine, CA 92612
Attention: Charles S. Exon
Telephone: (949) 798-0500
Facsimile: (949) 798-0511
Blake Dawson Waldman
101 Collins Street
Melbourne, Victoria
Australia 3000
Attention: Mary Padbury
Telephone: 61 (3) 9679-3000
Facsimile: 61 (3) 9679-3111
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If to Shareholders: At the address and facsimile number for each
such Shareholders shown on their signature
page.
With Copy to: Corrs Chambers Westgarth
Bourke Place
600 Bourke Street
GPO Box 9925
Melbourne, Victoria
Australia 3001
Attention: Dennis Nettlefold
Telephone: 61 (3) 672-3000
Facsimile: 61 (3) 602-5544
Section 5.2 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute but one and the same instrument.
Section 5.3 Governing Law. This Agreement shall be governed by, interpreted
under, and construed and enforced in accordance with the laws of the State of
New York.
Section 5.4 Entire Agreement. The terms of this Agreement are intended by
the parties as a final expression of their agreement with respect to such terms
as are included in this Agreement and may not be contradicted by evidence of any
prior or contemporaneous agreement. The parties further intend that this
Agreement constitutes the complete and exclusive statement of its terms and that
no extrinsic evidence whatsoever may be introduced in any judicial proceeding,
if any, involving this Agreement.
Section 5.5 Dispute Resolution. The parties agree that all disputes arising
under this Agreement will be settled by binding arbitration in the following
manner:
(a) If the party bringing a dispute to arbitration under this
Agreement (the "Complainant") is one or more of the Shareholders, the services
and rules of the American Arbitration Association will be used and the
arbitration will be held in the United States. Three arbitrators will be used
with one arbitrator being selected by the Complainant, one being selected by the
party responding to the Complainant (the "Respondent"), and the third being
selected by agreement of the two.
(b) If the Complainant is Parent or Buyer, the arbitration shall be
held in the state of Victoria, Australia, in accordance with the Commercial
Arbitration Act of 1984 (Victoria). Three arbitrators will be used with one
arbitrator being selected by the Complainant, one being selected by the
Respondent, and the third selected by the Chairperson for the time being of the
Chapter of the Institute of Arbitrators Australia in Victoria. The parties agree
that they may be represented in arbitration proceedings by a legal practitioner.
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Section 5.6 Exhibits and Schedules. Each of the Exhibits and Schedules
referred to herein and attached hereto is an integral part of this Agreement and
is incorporated herein by this reference.
Section 5.7 Further Assurances. The parties agree to do such further acts
and things and to execute and deliver such additional agreements and instruments
as the other party may reasonably require to consummate, evidence, or confirm
the agreements contained herein in the manner contemplated hereby.
Section 5.8 Successors and Assigns. This Agreement and the provisions
hereof shall be binding upon and inure to the benefit of each of the parties and
their respective successors and assigns.
Section 5.9 Attorneys' Fees. In the event any action in law or equity,
arbitration or other proceeding is brought for the enforcement of this Agreement
or in connection with any of the provisions of this Agreement, the prevailing
party or parties shall be entitled to its attorneys' fees and other costs
reasonably incurred in such action or proceeding.
Section 5.10 Equitable Remedies. In addition to legal remedies, to the
extent allowed pursuant to this Agreement or by law, in recognition of the fact
that remedies at law may not be sufficient, the parties hereto (and their
successors) shall be entitled to equitable remedies including, without
limitation, specific performance and injunction.
Section 5.11 Expenses. Each party hereto shall pay its own expenses
incident to the negotiation and preparation of this Agreement and all other
documents necessary or appropriate to consummate the transactions contemplated
hereby, and shall bear its own costs and expenses incurred in closing and
carrying out the transactions contemplated by this Agreement, including any
broker's or finder's fees and the expenses of its representatives.
Section 5.12 Amendment. This Agreement may be amended or modified in whole
or in part at any time prior to the Closing Date by an agreement in writing
among Buyer and the Shareholders' Representative.
Section 5.13 Effect of Amendment or Waiver. Each Shareholder acknowledges
that by operation of Sections 4.2 and 5.12, the Shareholders' Representative
will have the right and power to diminish or eliminate rights of such
Shareholders under this Agreement.
Section 5.14 Opportunity to Consult Counsel. Each Shareholder acknowledges
that such Shareholder has had full and adequate opportunity to have this
Agreement reviewed by such Shareholder's independent counsel and to discuss this
Agreement with such counsel.
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The parties to this Agreement have executed this Agreement upon the
day and year first set forth above.
"PARENT"
QUIKSILVER, INC., a Delaware corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
"BUYER"
QUIKSILVER AUSTRALIA PTY LTD, a Victoria corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
"SHAREHOLDERS' REPRESENTATIVE"
-----------------------------------------
Alan Green
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John Law
[Signatures continued on next page]
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"SHAREHOLDERS"
-----------------------------------------
Print Name of Shareholder
If Shareholder is an entity:
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Address:
---------------------------------
---------------------------------
---------------------------------
Fax No:
---------------------------------
If Shareholder is an individual:
-----------------------------------------
Signature of Shareholder
Address:
---------------------------------
---------------------------------
---------------------------------
Fax No:
---------------------------------
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SCHEDULE 1
DEFINITIONS
For purposes of the foregoing Agreement, the following definitions
shall apply:
"Affiliate" means, with respect to any Person, a Person that directly,
or indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, such Person.
"Buyer" shall have the meaning set forth in the Preamble.
"Closing" means the consummation of the transaction contemplated by
this Agreement. The time "Closing Date" and place of the Closing are set forth
in Section 1.4.
"Company" shall have the meaning set forth in the Preamble.
"Participating Shareholders" shall mean Dovali Pty Ltd, Alimoc Pty
Ltd, and John A. Law and Geraldine Mary Law.
"Person" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization.
"Share Purchase Agreement" shall mean that certain Share Purchase
Agreement of even date herewith among the Company, Buyer, Parent, the
Participating Shareholders and Alan Green.
"Shareholders" shall have the meaning set forth in the Preamble.
"Shareholders' Representative" shall be Alan Green and John Law acting
jointly or their successor as appointed pursuant to Section 4.2.
"Shares" means the issued ordinary shares of the Company being sold by
the Shareholders under this Agreement.
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LIST OF EXHIBITS
Exhibit A - Shareholders and Number of Shares
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EXHIBIT A
SHAREHOLDERS AND NUMBER OF SHARES
Shareholders No. of Shares
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Propaton Pty Ltd 164,317
Echo Beach Pty Ltd 133,333
Sea Note Pty Ltd 57,733
Henry Robert Hodge 35,528
John Hugh Winship 35,528
Murray Boyd 35,528
Brothers Neilsen Pty Ltd 33,307
Gregory John Brown 27,764
Alligator Pty Ltd 22,205
Mella Jarlie Pty Ltd 22,205
Paul Gerard Hart 13,323
Ocalim Pty Ltd 11,103
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Total 591,874
A-1
