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PUT AND CALL AGREEMENT
This PUT AND CALL AGREEMENT (this "AGREEMENT") is made as of
February
24, 2004, by and among the shareholders of
Bicycle Holding, Inc., a Delaware
corporation (the "COMPANY") set forth on
the signature pages hereto (each a "PUT
HOLDER" and collectively, the "PUT
HOLDERS") and Jarden Corporation, a Delaware
corporation (the "BUYER");
RECITALS
A. On the date hereof, the Buyer, the Company, certain Put Holders,
and
each of the other shareholders of the
Company have entered into a Securities
Purchase Agreement, substantially in the
form attached hereto as Exhibit A (the
"PURCHASE AGREEMENT"), pursuant to which
the Buyer will purchase all of the
outstanding capital stock of the Company,
other than the shares of the Company's
common stock, par value $0.01 per share
(the "COMMON STOCK") held by the Put
Holders and set forth on Schedule 1 to this
Agreement (such shares are
collectively referred to herein as the
"PUT/CALL SHARES").
B. The Purchase Agreement contemplates that the parties hereto
shall
enter into this Agreement, pursuant to
which (i) Buyer may exercise a call right
to purchase all of the Put/Call Shares from
the Put Holders on the terms and
conditions set forth herein; and (ii) each
Put Holder may exercise a put right
to sell all of its portion of the Put/Call
Shares to Buyer on the terms and
conditions set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the above premises and in
consideration of the mutual covenants and
undertakings of the parties as set
forth below and for other good and valuable
consideration, the receipt of which
is hereby acknowledged, the parties hereto
agree as follows:
1. Definitions.
(a) Capitalized terms used but not otherwise defined in this
Agreement shall have the same respective
meanings assigned to them in the
Purchase Agreement.
(b) In addition to terms defined elsewhere in this Agreement,
the
following terms and phrases shall have the
following respective meanings for
purposes of this Agreement:
(i) "CALL PRICE BASELINE" means the product of (A) the
"Adjusted Equity Value" (as determined
pursuant to Section 2.1(a)(i)(A) of the
Purchase Agreement and as adjusted (if at
all) pursuant to Exhibit A to the
Purchase Agreement prior to any exercise of
the Call Right or a Put Right
hereunder); multiplied by (B) 100.5%.
(ii) A "PUT HOLDER PERCENTAGE" means with respect to any Put
Holder, the percentage figure which
expresses the ratio, on a fully diluted
basis, between (A) the aggregate amount of
Put/Call Shares held by such Put
Holder, and (B) the aggregate amount of
Purchased Securities and Put/Call
Shares.
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(iii) The "MAXIMUM PUT RIGHT CONSIDERATION" means with
respect to any Put Holder the product of
(A) the Call Price Baseline; multiplied
by (B) such Put Holder's Put Holder
Percentage.
(iv) The "MINIMUM PUT RIGHT CONSIDERATION" means with respect
to any Put Holder the product of (A) 95%
multiplied by (B) the Adjusted Equity
Value multiplied by (C) such Put Holder's
Put Holder Percentage.
(v) "PER SHARE HOLDBACK AMOUNT" means the quotient of (A)
$20,000,000 divided by (B) the Total
Company Share Number.
(vi) "PUT/CALL SHARE PERCENTAGE" means the percentage figure
which expresses the ratio, on a fully
diluted basis, between (A) the aggregate
amount of Put/Call Shares, and (B) the
aggregate amount of Purchased Securities
and Put/Call Shares.
(vii) "PUT/CALL TRANSFER MATERIALS" means with respect to
each Put Holder, all certificates and other
instruments evidencing or otherwise
representing all Put/Call Shares owned by
such Put Holder, free and clear of all
Encumbrances, and a power or powers duly
executed in blank and sufficient to
convey to the Buyer good and valid title in
and to all such Put/Call Shares,
together with all accrued benefits and
rights attaching thereto.
(viii) The "PUT PRICE BASELINE" means with respect to each
Put Holder, the product of (A) seven and
seventy three hundredths (7.73);
multiplied by (B) the Company EBITDA for
the latest trailing twelve months
reasonably calculable by the Company upon
any such Put Holder's exercise of its
Put Right.
(ix) "TOTAL COMPANY SHARE NUMBER" means the sum of (i) the
aggregate number of Purchased Shares plus
(ii) the aggregate number of Put/Call
Shares.
2. Grant of Call Right.
(a) Subject to the terms and conditions set forth herein, each
Put
Holder hereby grants to Buyer the right to
purchase all of the Put/Call Shares
owned by such Put Holder (the "CALL
RIGHT"). Buyer may exercise the Call Right
at any time during the period commencing on
October 1, 2004 and ending on
November 1, 2004 (the "CALL EXERCISE
PERIOD"); provided, however, that the Call
Right may not be exercised unless the
Closing of the transactions contemplated
by the Purchase Agreement has occurred.
(b) The cash purchase price to be paid by Buyer upon exercise
of
the Call Right shall be equal to product of
(i) the Call Price Baseline,
multiplied by (ii) the Put/Call Share
Percentage (the "CALL RIGHT CASH
CONSIDERATION"). The Call Right Cash
Consideration will be paid to the Put
Holders, less the Aggregate Call Holdback
Amount, as set forth in Section 4(a).
(c) Buyer may not exercise the Call Right with respect to less
than all of the Put/Call Shares owned by
all of the Put Holders. To exercise the
Call Right, Buyer shall deliver a written
notice of such exercise (a "CALL
ELECTION NOTICE") to the Seller
Representative at any time during the Call
Exercise Period.
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3. Grant of Put Right.
(a) Subject to the terms and conditions set forth herein, Buyer
hereby grants to each Put Holder the right
to sell to Buyer all of the Put/Call
Shares owned by such Put Holder (such right
with respect to each such Put
Holder, a "PUT RIGHT"). Each Put Holder may
exercise its Put Right at any time
during the period commencing on January 1,
2005 and ending on March 1, 2005 (the
"PUT EXERCISE PERIOD"); provided, however,
that no Put Right may be exercised
unless (i) the Closing of the transactions
contemplated by the Purchase
Agreement has occurred; and (ii) the Buyer
has not exercised the Call Right and
consummated the Purchase of the Put/Call
Shares within 10 Business Days
following the end of the Call Exercise
Period.
(b) Subject to the limits set forth in this Section 3(b), the
cash
purchase price to be paid by Buyer to a Put
Holder upon exercise of such Put
Holder's Put Right shall equal the product
of (i) the Put Price Baseline;
multiplied by (ii) such Put Holder's Put
Holder Percentage (such product being
such Put Holder's "PUT RIGHT CASH
CONSIDERATION"). Notwithstanding the
immediately preceding sentence, if a Put
Holder's Put Right Cash Consideration
is greater than the Maximum Put Right
Consideration, such Put Holder's Put Right
Cash Consideration shall be deemed to be
the Maximum Put Right Consideration;
and if such Put Holder's Put Right Cash
Consideration is less than the Minimum
Put Right Consideration, such Put Holder's
Put Right Cash Consideration shall be
deemed to be the Minimum Put Right
Consideration. A Put Holder's Put Right Cash
Consideration shall be paid to such Put
Holder, less such Put Holder's
Individual Put Holdback Amount, as set
forth in Section 4(b).
(c) A Put Holder may exercise its Put Right only with respect
to
all of the Put/Call Shares held by such Put
Holder, but no Put Holder shall be
compelled to exercise its Put Right by the
exercise of Put Rights by one or more
other Put Holders. To exercise its Put
Right, a Put Holder shall at any time
during the Put Exercise Period deliver a
written notice of such exercise (a "PUT
ELECTION NOTICE") to the Seller
Representative, along with such Put Holder's
Put/Call Transfer Materials. The Seller
Representative will promptly transfer
any such Put Election Notice or Put
Election Notices (if such Notices are
received on a given date from more than one
Put Holder) to the Buyer, along with
such Put Holder's Put/Call Transfer
Materials.
4. Transfer of Put/Call Shares and Payment of Cash
Consideration.
(a) Call Right Cash Consideration. Upon receipt of a Call
Election
Notice, the Seller Representative shall
promptly notify each Put Holder that the
Buyer has exercised the Call Right. Each
Put Holder, following receipt of such
notice from the Seller Representative, will
promptly deliver to the Seller
Representative such Put Holder's Put/Call
Transfer Materials, and the Seller
Representative will promptly forward such
Put/Call Transfer Materials to Buyer.
Upon receipt of Put/Call Transfer Materials
representing 100% of the Put/Call
Shares, Buyer shall pay to the Seller
Representative (on behalf of the Put
Holders) by wire transfer of immediately
available funds an amount equal to the
Call Right Cash Consideration less an
amount equal to the product of (A) the Per
Share Holdback Amount; multiplied by (B)
the aggregate number of Put/Call Shares
(the "AGGREGATE CALL HOLDBACK AMOUNT").
(b) Put Right Cash Consideration. Following a Put Holder's
delivery of a Put Election Notice and its
Put/Call Transfer Materials, the
Seller Representative will promptly
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deliver the Put Election Notice and such
Put/Call Transfer Materials to Buyer.
Within two Business Days of receipt of such
Put Election Notice and Put/Call
Transfer Materials from the Seller
Representative, Buyer shall pay to the Seller
Representative (on behalf of such Put
Holder) by wire transfer of immediately
available funds an amount equal to such Put
Holder's Put Right Cash
Consideration less an amount equal to the
product of (A) the Per Share Holdback
Amount; multiplied by (B) the number of
Put/Call Shares owned and delivered by
such Put Holder (the "INDIVIDUAL PUT
HOLDBACK AMOUNT").
(c) Treatment of Holdbacks. Buyer shall retain the Aggregate
Call
Holdback Amount or any Individual Put
Holdback Amounts, as applicable, from any
payments of the Call Right Cash
Consideration or Put Right Cash Consideration
made under this Agreement, and any such
amounts so retained shall be deemed upon
retention to have been automatically added
to the "Holdback Amount" (as such
term is used in the Purchase Agreement) and
thereafter treated in all respects
as a portion of the Holdback Amount
pursuant to the terms of the Purchase
Agreement. Upon any such addition to the
Holdback Amount, the Irrevocable Letter
of Credit issued in favor of the Seller's
pursuant to Section 12.6 of the
Purchase Agreement shall be adjusted and
increased so that it fully secures the
Buyer's performance of its obligations
under the Holdback Amount, as increased
by such addition.
(d) Adjustment of Prior Indemnification Claims. Each Put
Holder,
following the Buyer's exercise of the Call
Right, or if the Call Right is not
exercised, any Put Holder following its
exercise of a Put Right (and the
automatic addition of the Aggregate Call
Holdback Amounts or Individual Put
Holdback Amount, as applicable, to the
Holdback Amount pursuant to Section
4(c)), shall upon any eventual
distributions of the Holdback Amount pursuant to
Section 12.6 of the Purchase Agreement be
deemed to have contributed pro-rata,
in accordance with its Put Holder
Percentage, to the satisfaction of any
indemnification claim made against all
Sellers under the Purchase Agreement that
was resolved and satisfied against the
Holdback Amount prior to any exercise of
such Call or Put Right. Following the
Closing of the Purchase Agreement, no
assertion or existence of any
indemnification claim (whether or not resolved)
shall prevent either Buyer or any Put
Holder from exercising a Call Right or Put
Right as set forth herein.
5. Rights of Parties Prior to Exercise of Call or Put Rights.
(a) Prior to any exercise of Call or Put Rights, the Put
Holders
shall maintain all indicia of ownership of
the Put/Call Shares, including the
rights to collect any dividends paid on
such shares, to control the votes
associated with such shares; and to
transfer such shares; provided, however,
that any transferee of the Put/Call Shares
must expressly agree to be bound by
this Agreement.
(b) Except for the Call Right set forth herein, Buyer shall not
compel any Put Holder to transfer its
Put/Call Shares. Buyer shall not
consummate any merger, consolidation, or
similar corporate restructuring that,
by operation of law or otherwise, would
result in the Put/Call Shares being
exchanged or converted into cash,
securities of other entities, or other
consideration. All appropriate terms and
conditions of this Agreement will be
modified as necessary to reflect any stock
split, reverse stock split, stock
dividend, or other like change with respect
to the Put/Call Shares or the
capitalization of the Company.
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(c) Nothing in this Agreement shall prevent the Buyer from
effecting intra-company loans to or between
any of its direct or indirect
majority owned subsidiaries (including,
after the Closing of the Purchase
Agreement, the Company).
6. Effect of Exercise of Call or Put Rights under the Purchase
Agreement. From and after the purchase by
the Buyer of any Put/Call Shares
pursuant to this Agreement:
(a) For all purposes under the Purchase Agreement, such
Put/Call
Shares shall not be considered "Put/Call
Shares" but instead shall be considered
"Purchased Securities" (as such terms are
used and defined in the Purchase
Agreement);
(b) each Put Holder of such Put/Call Shares immediately prior
to
Buyer's purchase shall be considered a
Seller (as such term is used and defined
in the Purchase Agreement) for all purposes
under the Purchase Agreement, and as
such shall, without limitation, (i) be
enti
