Exhibit 10.1
EXECUTION VERSION
VOTING AGREEMENT
VOTING AGREEMENT, dated as of
April 24, 2007 (this “ Agreement ”), by and
among Jarden Corporation, a Delaware corporation (“
Parent ”), and the Stockholders of K2 Inc., a Delaware
corporation (the “ Company ”), whose names
appear on Schedule I attached hereto (collectively, the
“ Stockholders ”).
W I T N E S
S E T H :
WHEREAS, contemporaneously with the
execution and delivery of this Agreement, Parent, K2 Merger Sub,
Inc., a Delaware corporation and a wholly-owned subsidiary of
Parent (“ Merger Sub ”), and the Company are
entering into an Agreement and Plan of Merger, dated as of the date
hereof (as amended from time to time, the “ Merger
Agreement ”), which provides for, among other things, the
merger (the “ Merger ”) of Merger Sub with and
into the Company, with the Company as the corporation surviving the
Merger, upon the terms and subject to the conditions set forth in
the Merger Agreement;
WHEREAS, as of the date hereof, each
Stockholder owns, beneficially and of record, the number of shares
of common stock, par value $1.00 per share, of the Company (the
“ Common Stock ”) set forth opposite such
Stockholder’s name on Schedule I attached hereto
(all such shares so owned and which may hereafter be acquired or
owned, beneficially or of record, by such Stockholder prior to the
termination of this Agreement, whether upon the exercise of
options, warrants or other rights to acquire Common Stock or by
means of purchase, dividend, distribution or otherwise, being
referred to herein as such Stockholder’s “
Shares ”);
WHEREAS, as a condition to the
willingness of Parent and Merger Sub to enter into the Merger
Agreement and to incur the obligations set forth therein, Parent
has required that the Stockholders enter into this Agreement;
and
WHEREAS, in order to induce Parent
and Merger Sub to enter into the Merger Agreement, the Stockholders
are willing to enter into this Agreement;
NOW, THEREFORE, in consideration of
the foregoing and the representations, warranties, covenants and
agreements herein contained, each party hereto, intending to be
legally bound, hereby agrees as follows:
ARTICLE I.
TRANSFER AND VOTING OF SHARES;
AND
OTHER COVENANTS OF THE STOCKHOLDERS
SECTION 1.1. Voting of Shares
. From the date hereof until the termination of this Agreement
pursuant to Section 3.2 hereof (the “ Term
”), at any meeting of the stockholders of the Company,
however and whenever called, and in any action by written consent
of the stockholders of the Company, each Stockholder shall vote
such Stockholder’s Shares (i) in favor of the approval
and adoption of the Merger Agreement and the transactions
contemplated thereby, including, without limitation, the Merger,
(ii) against (A) any Takeover Proposal other than the
Merger, (B) any proposal for action or agreement that would
result in a breach or
violation of any representation, warranty,
covenant, agreement or obligation of the Company under the Merger
Agreement or which is reasonably likely to result in any of the
conditions under the Merger Agreement to the consummation of the
Merger not being satisfied, (C) any change in the directors of
the Company, or (D) any action that could reasonably be
expected to impede, interfere with, delay, postpone or materially
and adversely affect the transactions contemplated by the Merger
Agreement or the likelihood of such transactions being consummated,
and (iii) in favor of any matter necessary for consummation of
the transactions contemplated by the Merger Agreement, in the case
of each of the immediately preceding clauses (i), (ii) and
(iii), to the extent that any such matter is considered at any such
meeting, or in any such consent, of stockholders and, in connection
therewith, each Stockholder shall execute any documents which are
necessary or appropriate in order to effectuate the foregoing,
including the ability for Parent or its nominees to vote such
Shares directly.
SECTION 1.2. No Inconsistent
Arrangements . Each Stockholder shall not during the Term
(i) except as contemplated by Section 1.8, Transfer (as
hereinafter defined), or consent to any Transfer of, any or all of
such Stockholder’s Shares or any interest therein, or create
or permit to exist any Lien or other encumbrance on such Shares,
(ii) except as contemplated by Section 1.8, enter into
any Contract, option or other agreement or understanding with
respect to any Transfer of any or all of such Shares or any
interest therein, (iii) grant any proxy, power-of-attorney or
other authorization in or with respect to such Shares,
(iv) deposit such Shares into a voting trust or enter into a
voting agreement or arrangement (or any Contract providing
therefor) with respect to such Shares, or (v) take any other
action that would in any way restrict, limit or interfere with the
performance of such Stockholder’s obligations hereunder or
the transactions contemplated hereby or by the Merger Agreement
(including, without limitation, the Merger). As used herein,
“ Transfer ” shall mean any sale, transfer,
pledge, hypothecation, encumbrance, assignment or disposition,
however made, consummated or effected, and any offer or Contract to
make, consummate or effect any sale, transfer, pledge,
hypothecation, encumbrance, assignment or disposition. Any
purported Transfer other than in accordance with this
Section 1.2 shall be void ab initio .
SECTION 1.3. Proxy . Each
Stockholder hereby revokes any and all proxies or powers of
attorney granted or effected by such Stockholder, or otherwise in
effect, prior to the execution of this Agreement in respect of any
of such Stockholder’s Shares and hereby irrevocably and
unconditionally constitutes and appoints Parent, or any nominee of
Parent, with full power of substitution and resubstitution, as its
true and lawful attorney-in-fact and proxy (such
Stockholder’s “ Proxy ”), for and in such
Stockholder’s name, place and stead to vote each of such
Stockholder’s Shares as such Stockholder’s Proxy, at
every annual, special, adjourned or postponed meeting of the
stockholders of the Company, including the right to sign its name
(as stockholder) to any consent, certificate or other document
relating to the Company that Delaware law may permit or require as
provided in Section 1.1.
EACH STOCKHOLDER HEREBY
ACKNOWLEDGES AND AGREES THAT, DURING THE TERM, THE FOREGOING PROXY
AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN
INTEREST.
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SECTION 1.4. Waiver of Appraisal
Rights . Each Stockholder hereby waives any rights of appraisal
or rights to dissent from the Merger under Section 262 of the
DGCL or otherwise under Delaware law.
SECTION 1.5. Stop Transfer .
Each Stockholder shall not request that the Company register the
Transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such
Stockholder’s Shares, unless such transfer is made in strict
compliance with the provisions of this Agreement.
SECTION 1.6. No Solicitation
. During the Term, no Stockholder shall in his or her individual
capacity as a stockholder of the Company, nor shall any Stockholder
permit or authorize any of such Stockholder’s officers,
directors, employees, agents, representatives or Affiliates
(collectively, the “ Representatives ”),
(i) solicit or initiate, or encourage, directly or indirectly,
any inquiries regarding or the submission of, any Takeover
Proposal, (ii) unless and until, and only to the extent that,
the Company is permitted to take such actions under
Section 5.5 of the Merger Agreement, participate in any
discussions or negotiations regarding, or furnish to any Person any
information or data with respect to, or take any other action to
facilitate the making of any proposal that constitutes, or may
reasonably be expected to lead to, any Takeover Proposal or
(iii) unless and until, and only to the extent that, the
Company is permitted to take such actions under Section 5.5 of
the Merger Agreement, enter into any Contract with respect to any
Takeover Proposal or approve or resolve to approve any Takeover
Proposal. Upon execution of this Agreement, each Stockholder shall,
and it shall cause its Representatives to, immediately cease any
existing activities, discussions or negotiations with any Person
(other than Parent and Merger Sub) conducted heretofore with
respect to any of the foregoing. Each Stockholder shall promptly
notify Parent of the existence of any such proposal, discussion,
negotiation or inquiry received or engaged in by such Stockholder,
and each Stockholder shall immediately communicate to Parent the
terms of any such proposal, discussion, negotiation or inquiry
which it may receive or engage in (and shall promptly provide to
Parent copies of any written materials received by it in connection
with such proposal, discussion, negotiation or inquiry) and the
identity of the Person making such proposal or inquiry or engaging
in such discussion or negotiation.
SECTION 1.7. Binding Effect .
Notwithstanding anything to the contrary contained in this
Agreement, the provisions of this Agreement apply to each
Stockholder solely in such Stockholder’s capacity as a
stockholder of the Company and not in such Stockholder’s
capacity as an officer or director of the Company (it being
understood that the Company has separate and independent
obligations to Parent and Merger Sub under the Merger Agreement,
including, without limitation, Section 5.5 thereof). Without
limiting the foregoing, nothing contained in this Agreement shall
in any way limit any actions that any Stockholder, solely in his or
her capacity as an officer or director of the Company, may deem
necessary in the exercise of his or her fiduciary duties, including
any actions that directors are permitted to take pursuant to
Section 5.5 of the Merger Agreement.
SECTION 1.8. Permitted
Transfers . Notwithstanding anything to the contrary contained
in
