UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 5)*
JOHNSON OUTDOORS INC.
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(Name of Issuer)
Class A Common Stock, par value $.05 per share
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(Title of Class of Securities)
479254 10 4
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(CUSIP Number)
Linda L. Sturino
555 Main Street
Suite 500
Racine, Wisconsin 53403
(262) 260-4046
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
November 2, 2004
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(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
|_|
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss.240.13d-7 for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
SCHEDULE 13D
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CUSIP NO. 479254 10 4 PAGE 2 OF 16 PAGES
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NAME OF REPORTING PERSON
1 Helen P. Johnson-Leipold
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
---------- ---------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
2 (a) [ x]
(b) [ ]
---------- ---------------------------------------------------------------------
3 SEC USE ONLY
---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
SC and BK
---------- ---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
---------- ---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
---------- ---------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER 808,444 shares (1)(2)
OF
-------- ------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 1,407,508 shares (2)(3)
OWNED
-------- ------------------------------------------
BY 9 SOLE DISPOSITIVE POWER
EACH 808,444 shares (1)(2)
REPORTING
-------- ------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 1,407,508 shares (2)(3)
---------------------------- -------- ------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,215,952 shares (1)(2)(3)
---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |X|
See Item 5
---------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
23.4% of the Class A Common Stock (1)(2)(3)(4)
---------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
IN
---------- ---------------------------------------------------------------------
(1) Includes options to acquire 655,000 shares of Class A Common Stock
that are exercisable within 60 days and the 3,932 shares of Class A Common Stock
held in the Reporting Person's 401(k) plan as of October 25, 2004.
(2) Includes shares of Class B Common Stock beneficially owned by the
Reporting Person which are convertible at any time into Class A Common Stock on
a one share-for-one share basis.
(3) Includes shares of Class A Common Stock and Class B Common Stock
held of record by entities owned jointly by the Reporting Person and certain
other Reporting Persons and previously not reported on the Reporting Person's
Schedule 13D due to the nature of the ownership.
(4) Based on 7,599,831 shares of Class A Common Stock and 1,221,715
shares of Class B Common Stock (convertible into shares of Class A Common Stock
on a one share-for-one share basis) of Johnson Outdoors Inc. outstanding as of
October 28, 2004, as reported in the Agreement and Plan of Merger attached as
Exhibit 2 to the Johnson Outdoors Inc. Form 8-K, filed with the Securities and
Exchange Commission on October 29, 2004, and 655,000 options held by Ms.
Johnson-Leipold to purchase shares of Class A Common Stock that are exercisable
within 60 days.
SCHEDULE 13D
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CUSIP NO. 479254 10 4 PAGE 3 OF 16 PAGES
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NAME OF REPORTING PERSON
1 Imogene P. Johnson
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
---------- ---------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
2 (a) [ x]
(b) [ ]
---------- ---------------------------------------------------------------------
3 SEC USE ONLY
---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
SC and BK
---------- ---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
---------- ---------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER 32,288 shares
OF
-------- ------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 3,416,859 shares (1)
OWNED
-------- ------------------------------------------
BY 9 SOLE DISPOSITIVE POWER
EACH 32,288 shares
REPORTING
-------- ------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 3,416,859 shares (1)
---------------------------- -------- ------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,449,147 shares (1)
---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |_|
See Item 5
---------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
39.1% of the Class A Common Stock (1)(2)
---------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
IN
---------- ---------------------------------------------------------------------
(1) Includes shares of Class B Common Stock beneficially owned by the
Reporting Person which are convertible at any time into Class A Common Stock on
a one share-for-one share basis.
(2) Based on 7,599,831 shares of Class A Common Stock and 1,221,715 shares
of Class B Common Stock (convertible into shares of Class A Common Stock on a
one share-for-one share basis) of Johnson Outdoors Inc. outstanding as of
October 28, 2004, as reported in the Agreement and Plan of Merger attached as
Exhibit 2 to the Johnson Outdoors Inc. Form 8-K, filed with the Securities and
Exchange Commission on October 29, 2004.
SCHEDULE 13D
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CUSIP NO. 479254 10 4 PAGE 3 OF 16 PAGES
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NAME OF REPORTING PERSON
1 Samuel C. Johnson 1988 Trust Number One u/a September 14, 1988
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
20-6217605
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
2 (a) [ x]
(b) [ ]
---------- ---------------------------------------------------------------------
3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
SC and BK
---------- ---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Wisconsin
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7 SOLE VOTING POWER
NUMBER 0 shares
OF
-------- ------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 3,416,859 shares (1)
OWNED
-------- ------------------------------------------
BY 9 SOLE DISPOSITIVE POWER
EACH 0 shares
REPORTING
-------- ------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 3,416,859 shares (1)
---------------------------- -------- ------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,416,859 shares (1)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |X|
See Item 5
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
38.7% of the Class A Common Stock (1)(2)
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14 TYPE OF REPORTING PERSON (See Instructions)
OO*
---------- ---------------------------------------------------------------------
* The Reporting Person is a trust.
(1) Includes shares of Class B Common Stock beneficially owned by the
Reporting Person which are convertible at any time into Class A Common Stock on
a one share-for-one share basis.
(2) Based on 7,599,831 shares of Class A Common Stock and 1,221,715
shares of Class B Common Stock (convertible into shares of Class A Common Stock
on a one share-for-one share basis) of Johnson Outdoors Inc. outstanding as of
October 28, 2004, as reported in the Agreement and Plan of Merger attached as
Exhibit 2 to the Johnson Outdoors Inc. Form 8-K, filed with the Securities and
Exchange Commission on October 29, 2004.
SCHEDULE 13D
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CUSIP NO. 479254 10 4 PAGE 5 OF 16 PAGES
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NAME OF REPORTING PERSON
1 JWA Consolidated, Inc.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
39-156071
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
2 (a) [ x]
(b) [ ]
---------- ---------------------------------------------------------------------
3 SEC USE ONLY
---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
SC and BK
---------- ---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Wisconsin
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7 SOLE VOTING POWER
NUMBER 114,464 shares
OF
-------- ------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 1,037,330 shares (1)
OWNED
-------- ------------------------------------------
BY 9 SOLE DISPOSITIVE POWER
EACH 114,464 shares
REPORTING
-------- ------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 1,037,330 shares (1)
---------------------------- -------- ------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,151,794 shares (1)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |X|
See Item 5
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.1% of the Class A Common Stock (1)(2)
---------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
CO
---------- ---------------------------------------------------------------------
(1) Includes shares of Class B Common Stock beneficially owned by the
Reporting Person which are convertible at any time into Class A Common Stock on
a one share-for-one share basis.
(2) Based on 7,599,831 shares of Class A Common Stock and 1,221,715
shares of Class B Common Stock (convertible into shares of Class A Common Stock
on a one share-for-one share basis) of Johnson Outdoors Inc. outstanding as of
October 28, 2004, as reported in the Agreement and Plan of Merger attached as
Exhibit 2 to the Johnson Outdoors Inc. Form 8-K, filed with the Securities and
Exchange Commission on October 29, 2004.
SCHEDULE 13D
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CUSIP NO. 479254 10 4 PAGE 6 OF 16 PAGES
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NAME OF REPORTING PERSON
1 Johnson Bank
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
39-1141446
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
2 (a) [ x]
(b) [ ]
---------- ---------------------------------------------------------------------
3 SEC USE ONLY
---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
SC and BK
---------- ---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Wisconsin
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7 SOLE VOTING POWER
NUMBER 119,504 shares (1)
OF
-------- ------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 2,882,458 shares (1)
OWNED
-------- ------------------------------------------
BY 9 SOLE DISPOSITIVE POWER
EACH 119,504 shares (1)
REPORTING
-------- ------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 2,882,458 shares (1)
---------------------------- -------- ------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,001,962 shares (1)
---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |X|
See Item 5
---------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
34.0% of the Class A Common Stock (1)(2)
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14 TYPE OF REPORTING PERSON (See Instructions)
BK
---------- ---------------------------------------------------------------------
(1) Includes shares of Class B Common Stock beneficially owned by the
Reporting Person which are convertible at any time into Class A Common Stock on
a one share-for-one share basis.
(2) Based on 7,599,831 shares of Class A Common Stock and 1,221,715
shares of Class B Common Stock (convertible into shares of Class A Common Stock
on a one share-for-one share basis) of Johnson Outdoors Inc. outstanding as of
October 28, 2004, as reported in the Agreement and Plan of Merger attached as
Exhibit 2 to the Johnson Outdoors Inc. Form 8-K, filed with the Securities and
Exchange Commission on October 29, 2004.
SCHEDULE 13D
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CUSIP NO. 479254 10 4 PAGE 7 OF 16 PAGES
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NAME OF REPORTING PERSON
1 H. Fisk Johnson
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
---------- ---------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
2 (a) [ x]
(b) [ ]
---------- ---------------------------------------------------------------------
3 SEC USE ONLY
---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
SC and BK
---------- ---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
---------- ---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Illinois
---------- ---------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER 549,263 shares (1)
OF
-------- ------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 1,215,793 shares (2)(3)
OWNED
-------- ------------------------------------------
BY 9 SOLE DISPOSITIVE POWER
EACH 549,263 (1)
REPORTING
-------- ------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 1,215,793 shares (2)(3)
---------------------------- -------- ------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,765,056 (2)(3)
---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |X|
See Item 5
---------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.6% of the Class A Common Stock (2)(3)(4)
---------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
IN
---------- ---------------------------------------------------------------------
(1) Includes options to acquire 161,667 shares of Class A Common Stock
that are exercisable within 60 days.
(2) Includes shares of Class B Common Stock beneficially owned by the
Reporting Person which are convertible at any time into Class A Common Stock on
a one share-for-one share basis.
(3) Includes shares of Class A Common Stock and Class B Common Stock
held of record by entities owned jointly by the Reporting Person and certain
other Reporting Persons and previously not reported on the Reporting Person's
Schedule 13D due to the nature of the ownership.
(4) Based on 7,599,831 shares of Class A Common Stock and 1,221,715
shares of Class B Common Stock (convertible into shares of Class A Common Stock
on a one share-for-one share basis) of Johnson Outdoors Inc. outstanding as of
October 28, 2004, as reported in the Agreement and Plan of Merger attached as
Exhibit 2 to the Johnson Outdoors Inc. Form 8-K, filed with the Securities and
Exchange Commission on October 29, 2004, and 161,667 options held by Mr. Johnson
to purchase shares of Class A Shares that are exercisable within 60 days.
SCHEDULE 13D
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CUSIP NO. 479254 10 4 PAGE 8 OF 16 PAGES
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NAME OF REPORTING PERSON
1 S. Curtis Johnson
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
---------- ---------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
2 (a) [ x]
(b) [ ]
---------- ---------------------------------------------------------------------
3 SEC USE ONLY
---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
SC and BK
---------- ---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
---------- ---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Wisconsin
---------- ---------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER 190,676 shares (1)
OF
-------- ------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 1,198,216 shares (2)(3)
OWNED
-------- ------------------------------------------
BY 9 SOLE DISPOSITIVE POWER
EACH 190,676 shares (1)
REPORTING
-------- ------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 1,198,216 shares (2)(3)
---------------------------- -------- ------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,388,892 shares (1)(2)(3)
---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |X|
See Item 5
---------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.5% of the Class A Common Stock (1)(2)(3)(4)
---------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
IN
---------- ---------------------------------------------------------------------
(1) Includes options to acquire 161,667 shares of Class A Common Stock
that are exercisable within 60 days.
(2) Includes shares of Class B Common Stock beneficially owned by the
Reporting Person which are convertible at any time
into Class A Common Stock on a one share-for-one share basis.
(3) Includes shares of Class A Common Stock and Class B Common Stock
held of record by entities owned jointly by the Reporting Person and certain
other Reporting Persons.
(4) Based on 7,599,831 shares of Class A Common Stock and 1,221,715
shares of Class B Common Stock (convertible into shares of Class A Common Stock
on a one share-for-one share basis) of Johnson Outdoors Inc. outstanding as of
October 28, 2004, as reported in the Agreement and Plan of Merger attached as
Exhibit 2 to the Johnson Outdoors Inc. Form 8-K, filed with the Securities and
Exchange Commission on October 29, 2004, and 161,667 options held by Mr. Johnson
to purchase shares of Class A Shares that are exercisable within 60 days.
SCHEDULE 13D
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CUSIP NO. 479254 10 4 PAGE 9 OF 16 PAGES
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NAME OF REPORTING PERSON
1 Winifred J. Marquart
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
---------- ---------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
2 (a) [ x]
(b) [ ]
---------- ---------------------------------------------------------------------
3 SEC USE ONLY
---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
SC and BK
---------- ---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
---------- ---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Wisconsin
---------- ---------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER 161,687 shares (1)
OF
-------- ------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 87,208 shares (2)(3)
OWNED
-------- ------------------------------------------
BY 9 SOLE DISPOSITIVE POWER
EACH 161,687 shares (1)
REPORTING
-------- ------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 87,208 shares (2)(3)
---------------------------- -------- ------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
248,895 shares (1)(2)(3)
---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |X|
See Item 5
---------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.8% of the Class A Common Stock (1)(2)(3)(4)
---------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
IN
---------- ---------------------------------------------------------------------
(1) Includes options to acquire 161,667 shares of Class A Common Stock
that are exercisable within 60 days.
(2) Includes shares of Class B Common Stock beneficially owned by the
Reporting Person which are convertible at any time
into Class A Common Stock on a one share-for-one share basis.
(3) Includes shares of Class A Common Stock and Class B Common Stock
held of record by entities owned jointly by the Reporting Person and certain
other Reporting Persons.
(4) Based on 7,599,831 shares of Class A Common Stock and 1,221,715
shares of Class B Common Stock (convertible into shares of Class A Common Stock
on a one share-for-one share basis) of Johnson Outdoors Inc. outstanding as of
October 28, 2004, as reported in the Agreement and Plan of Merger attached as
Exhibit 2 to the Johnson Outdoors Inc. Form 8-K, filed with the Securities and
Exchange Commission on October 29, 2004, and 161,667 options held by Ms.
Marquart to purchase shares of Class A Shares that are exercisable within 60
days.
SCHEDULE 13D
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CUSIP NO. 479254 10 4 PAGE 10 OF 16 PAGES
----------------------------------- ------------------------------------
THIS AMENDMENT NO. 5 TO SCHEDULE 13D is filed jointly by Helen P.
Johnson-Leipold ("Ms. Johnson-Leipold"), Imogene P. Johnson ("Ms. Johnson"),
Samuel C. Johnson 1988 Trust Number One u/a September 14, 1988 (the "1988
Trust"), H. Fisk Johnson ("Mr. Fisk Johnson"), S. Curtis Johnson ("Mr. Curtis
Johnson"), Winifred J. Marquart ("Ms. Marquart"), JWA Consolidated, Inc. ("JWA")
and Johnson Bank (the "Bank"). In this Amendment No. 5 to Schedule 13D, Ms.
Johnson-Leipold, Ms. Johnson, the 1988 Trust, Mr. Fisk Johnson, Mr. Curtis
Johnson, Ms. Marquart, JWA and the Bank are sometimes individually referred to
as a "Reporting Person" and collectively referred to herein as the "Reporting
Persons". The Reporting Persons are making this single, joint filing because
they may be deemed to constitute a "group" within the meaning of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Act"), with
respect to the transaction described in Item 4 of this Schedule 13D and thus are
eligible to make a joint filing under Rule 13d-1(k) promulgated under the Act.
Except as expressly set forth in this Schedule 13D, each Reporting Person
disclaims beneficial ownership of the shares of Class A Common Stock
beneficially owned by any other Reporting Person or any other person. This
filing shall serve to amend and supplement the Amendment No. 4 to Schedule 13D
filed by Ms. Johnson-Leipold, Mrs. Johnson and the 1988 Trust with the
Securities and Exchange Commission (the "SEC") on June 28, 2004, the Schedule
13D filed by Mr. Fisk Johnson with the SEC on March 23, 2004, Amendment No. 2 to
Schedule 13D filed by JWA with the SEC on March 23, 2004, Amendment No. 1 to
Schedule 13D filed by the Bank with the SEC on June 16, 2004, and shall act as
an initial Schedule 13D filing made by Mr. Curtis Johnson and Ms. Marquart.
ITEM 2. IDENTITY AND BACKGROUND.
Item 2 is hereby amended in its entirety to read as follows:
(a) - (b) Helen P. Johnson-Leipold
555 Main Street
Racine, Wisconsin 53403
Imogene P. Johnson
555 Main Street
Racine, Wisconsin 53403
Samuel C. Johnson 1988 Trust Number
One u/a September 14, 1988
555 Main Street
Racine, Wisconsin 53403
JWA Consolidated, Inc.
555 Main Street
Racine, Wisconsin 53403
Johnson Bank
555 Main Street
Racine Wisconsin 53403
SCHEDULE 13D
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CUSIP NO. 479254 10 4 PAGE 11 OF 16 PAGES
----------------------------------- ------------------------------------
H. Fisk Johnson
555 Main Street
Racine, Wisconsin 53403
S. Curtis Johnson
555 Main Street
Racine, Wisconsin 53403
Winifred J. Marquart
555 Main Street
Racine, Wisconsin 53403
(c) Helen P. Johnson-Leipold - Chairman and Chief Executive
Officer of Johnson Outdoors Inc. (the "Company").
Johnson Outdoors Inc.
555 Main Street
Racine, Wisconsin 53403
Manufacturer and marketer of recreational products.
Imogene P. Johnson - None
Samuel C. Johnson 1988 Trust Number One
u/a September 14, 1988 - Not Applicable
JWA Consolidated, Inc. - Not Applicable
Johnson Bank - Not Applicable
H. Fisk Johnson - Chairman of S.C. Johnson & Son, Inc.
SC Johnson & Son, Inc.
1525 Howe Street
Racine, WI 53403-5011
Manufacturer of home care products.
S. Curtis Johnson - Chairman - Worldwide Professional
Johnson Diversey
1326 Willow Road
Sturtevant, WI 53177
Manufacturer of cleaning and hygiene products and
solutions.
SCHEDULE 13D
----------------------------------- ------------------------------------
CUSIP NO. 479254 10 4 PAGE 12 OF 16 PAGES
----------------------------------- ------------------------------------
Winifred J. Marquart - President - Johnson Family
Foundation
Johnson Family Foundation
555 Main Street
Racine, Wisconsin 53403
Charitable organization.
(d) - (e) During the last five years, none of the Reporting Persons has
been convicted in a criminal proceeding or been a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws.
(f) The Reporting Persons are each citizens of the United States.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
In connection with the proposed transaction described in Item 4 below,
JO Acquisition Corp., a newly-formed entity established by Ms. Johnson-Leipold,
has received a commitment letter from General Electric Capital Corporation
("GE"), dated as of October 28, 2004, pursuant to which GE commits to provide,
subject to certain conditions, up to $142 million and up to (euro)27 million in
financing, which will be used together with the Company's available cash, for
the purpose of consummating the proposed transaction. This summary of the
commitment letter does not purport to be complete and is qualified in its
entirety by reference to the complete text of the commitment letter attached as
Exhibit 99.8.
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 to the Schedule 13D is amended and supplemented by the
following:
On October 28, 2004, the Company and JO Acquisition Corp. entered into
an Agreement and Plan of Merger (the "Merger Agreement"). Under the proposed
merger, JO Acquisition Corp. will be merged with and into the Company (the
"Merger"), and the holders of shares of the Company's common stock other than JO
Acquisition Corp. and the members of the Johnson family (including the Reporting
Persons) shall receive $20.10 per share in cash. The Merger is subject to a
number of conditions, including shareholder approval of the Merger Agreement and
the receipt of debt financing. This summary of the Merger Agreement does not
purport to be complete and is qualified in its entirety by reference to the
complete text of the Merger Agreement incorporated by reference through Exhibit
99.9.
On October 28, 2004, the Reporting Persons and JO Acquisition Corp.
entered into a Contribution Agreement (the "Contribution Agreement") pursuant to
which each Reporting Person has agreed to cause or use its best efforts to cause
certain of the outstanding shares of Class A Common Stock and Class B Common
Stock of the Company beneficially owned by the Reporting Person to be
contributed to JO Acquisition Corp. prior to the consummation of the Merger in
exchange for an equal number of shares of capital stock of JO Acquisition Corp.
This summary of the Contribution Agreement does not purport to be complete and
is qualified in its entirety by reference to the complete text of the
Contribution Agreement attached as Exhibit 99.10.
SCHEDULE 13D
----------------------------------- ------------------------------------
CUSIP NO. 479254 10 4 PAGE 13 OF 16 PAGES
----------------------------------- ------------------------------------
On October 28, 2004, the Reporting Persons and JO Acquisition Corp. entered
into a Voting Agreement (the "Voting Agreement") pursuant to which each
Reporting Person has agreed to cause or to use its best efforts to cause certain
of the shares of the Company's Class A Common Stock and Class B Common Stock
beneficially owned by the Reporting Person to be voted in favor of approving the
Merger Agreement and against any action that would result in a breach by the
Company of the terms thereof, and subject to the express terms of the Voting
Agreement, not to transfer the shares of Class A Common Stock and Class B Common
Stock. This summary of the Voting Agreement does not purport to be complete and
is qualified in its entirety by reference to the complete text of the Voting
Agreement attached as Exhibit 99.11.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 is hereby amended in its entirety to read as follows:
(a)-(b) Information concerning the amount and percentage of shares of
Class A Common Stock beneficially owned by the Reporting Persons is set forth
below:
----------------------- ---------------- ------------------- -------------------------------- ------------------------------------
Reporting Person Sole Voting Shared Voting and Aggregate Beneficial Ownership Percentage of Outstanding Shares
and Dispositive Power
Dispositive
Power
----------------------- ---------------- ------------------- -------------------------------- ------------------------------------
Ms. Johnson-Leipold 808,444 (1)(2) 1,407,508 (1)(7) 2,215,952 (1)(2)(7)(10) 23.4% (1)(2)(4)(7) (10)
(11)(12)(13)(14)(15) (11)(12)(13)(14)(15)
----------------------- ---------------- ------------------- -------------------------------- ------------------------------------
Mrs. Johnson 32,288 3,416,859 (1) 3,449,147 (1)(9)(11) 39.1% (1)(5) (9)(11)
(12)(13)(14)(15) (12)(13)(14)(15)
----------------------- ---------------- ------------------- -------------------------------- ------------------------------------
The 1988 Trust 0 3,416,859 (1) 3,416,859 (1)(9)(10) 38.7% (1)(5)(9)(10)
(11)(12)(13)(14)(15) (11)(12)(13)(14)(15)
----------------------- ---------------- ------------------- -------------------------------- ------------------------------------
JWA 114,464 1,037,330 (1) 1,151,794 (1)(9)(10) 13.1% (1)(5)(9)(10)
(12)(13)(14)(15) (12)(13)(14)(15)
----------------------- ---------------- ------------------- -------------------------------- ------------------------------------
The Bank 119,504 (1) 2,882,458 (1) 3,001,962 (1)(9)(10) 34.0% (1)(5)(9)(10)
(11)(13)(14)(15) (11)(13)(14)(15)
----------------------- ---------------- ------------------- -------------------------------- ------------------------------------
Mr. Fisk Johnson 549,263 (3) 1,215,793 (1)(7) 1,765,056 (1)(3)(7)(9) 19.6% (1)(3)(6)(7)(9)
(10)(11)(12)(14)(15) (10)(11)(12)(14)(15)
----------------------- ---------------- ------------------- -------------------------------- ------------------------------------
Mr. Curtis Johnson 190,676 (3) 1,198,216 (1)(8) 1,388,892 (1)(3)(6)(8) 15.5% (1)(3)(6)(7)(8)
(9)(10)(11)(12)(13)(15) (9)(10)(11)(12)(13)(15)
----------------------- ---------------- ------------------- -------------------------------- ------------------------------------
Ms. Marquart 161,687 (3) 87,208 (1)(8) 248,895 (1)(3)(8)(9) 2.8% (1)(3)(6)(8)(9)
(10)(11)(12)(13)(14) (10)(11)(12)(13)(14)
----------------------- ---------------- ------------------- -------------------------------- ------------------------------------
(1) Includes shares of Class B Common Stock which are convertible at any time on
a one share-for-one share basis into shares of Class A Common Stock.
(2) Includes options to acquire 655,000 shares of Class A Common Stock, which
options are exercisable within 60 days, and 3,932 shares of Class A Common Stock
held in Ms. Johnson-Leipold's 401(k) plan as of October 25, 2004.
(3) Includes options to acquire 161,667 shares of Class A Common Stock, which
options are exercisable within 60 days.
(4) Based on 7,599,831 shares of Class A Common Stock and 1,221,715 shares of
Class B Common Stock (convertible into shares of Class A Common Stock on a one
share-for-one share basis) of Johnson Outdoors Inc. outstanding as of October
28, 2004, as reported in the Agreement and Plan of Merger attached as Exhibit 2
to the Johnson Outdoors Inc. Form 8-K, filed with the Securities and Exchange
Commission on October 29, 2004, and 655,000 options held by Ms. Johnson-Leipold
to purchase shares of Class A Common Stock that are exercisable within 60 days.
(5) Based on 7,599,831 shares of Class A Common Stock and 1,221,715 shares of
Class B Common Stock (convertible into shares of Class A Common Stock on a one
SCHEDULE 13D
----------------------------------- ------------------------------------
CUSIP NO. 479254 10 4 PAGE 14 OF 16 PAGES
----------------------------------- ------------------------------------
share-for-one share basis) of Johnson Outdoors Inc. outstanding as of October
28, 2004, as reported in the Agreement and Plan of Merger attached as Exhibit 2
to the Johnson Outdoors Inc. Form 8-K, filed with the Securities and Exchange
Commission on October 29, 2004.
(6) Based on 7,599,831 shares of Class A Common Stock and 1,221,715 shares of
Class B Common Stock (convertible into shares of Class A Common Stock on a one
share-for-one share basis) of Johnson Outdoors Inc. outstanding as of October
28, 2004, as reported in the Agreement and Plan of Merger attached as Exhibit 2
to the Johnson Outdoors Inc. Form 8-K, filed with the Securities and Exchange
Commission on October 29, 2004, and 161,667 options held by each of Mr. Fisk
Johnson, Mr. Curtis Johnson and Ms. Marquart, respectively, to purchase shares
of Class A Shares that are exercisable within 60 days.
(7) Includes shares of Class A Common Stock and Class B Common Stock held of
record by entities owned jointly by the Reporting Person and certain other
Reporting Persons and previously not reported on the Reporting Person's Schedule
13D due to the nature of the ownership.
(8) Includes shares of Class A Common Stock and Class B Common Stock held of
record by entities owned jointly by the Reporting Person and certain other
Reporting Persons.
(9) Excludes 808,444 shares beneficially owned solely by Ms. Johnson-Leipold as
to which Mrs. Johnson, the 1988 Trust JWA, the Bank, Mr. Fisk Johnson, Mr.
Curtis Johnson and Mrs. Marquart disclaim any beneficial ownership.
(10) Excludes 32,288 shares beneficially owned solely by Mrs. Johnson as to
which Ms. Johnson-Leipold, the 1988 Trust, JWA, the Bank, Mr. Fisk Johnson, Mr.
Curtis Johnson and Mrs. Marquart disclaim any beneficial ownership.
(11) Excludes 114,464 shares beneficially owned solely by JWA to which Ms.
Johnson-Leipold, Mrs. Johnson, the 1988 Trust, the Bank, Mr. Fisk Johnson, Mr.
Curtis Johnson and Mrs. Marquart disclaim any beneficial ownership.
(12) Excludes 119,504 shares beneficially owned solely by the Bank to which Ms.
Johnson-Leipold, Mrs. Johnson, the 1988 Trust, JWA, Mr. Fisk Johnson, Mr. Curtis
Johnson and Mrs. Marquart disclaim any beneficial ownership.
(13) Excludes 549,263 shares beneficially owned solely by Mr. Fisk Johnson as to
which Ms. Johnson-Leipold, Mrs. Johnson, the 1988 Trust, JWA, the Bank, Mr.
Curtis Johnson and Mrs. Marquart disclaim any beneficial ownership.
(14) Excludes 190,676 shares beneficially owned solely by Mr. Curtis Johnson as
to which Ms. Johnson-Leipold, Mrs. Johnson, the 1988 Trust, JWA, the Bank, Mr.
Fisk Johnson and Mrs. Marquart disclaim any beneficial ownership.
(15) Excludes 161,687 shares beneficially owned solely by Mrs. Marquart as to
which Ms. Johnson-Leipold, Mrs. Johnson, the 1988 Trust, JWA, the Bank, Mr. Fisk
Johnson and Mr. Curtis Johnson disclaim any beneficial ownership.
During the last five years, none of the above persons has been
convicted in a criminal proceeding or has been a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to federal
or state securities laws or finding any violation with respect to such laws.
(c)-(e). Not Applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Except as described in this Amendment No. 5 to Schedule 13D, there are
no contracts, arrangements, understandings or relationships (legal or otherwise)
among the Reporting Persons and between such Reporting Persons and any person
with respect to any securities of the Company, including but not limited to
transfer or voting of the securities, finder's fees, joint ventures, loan or
option arrangements, puts or calls, guarantors of profit, division of profit or
loss or the giving or withholding of proxies.
SCHEDULE 13D
----------------------------------- ------------------------------------
CUSIP NO. 479254 10 4 PAGE 15 OF 16 PAGES
----------------------------------- ------------------------------------
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
Item 7 is hereby amended as follows:
Exhibit No. Title
----------- -----
99.8 Commitment Letter, dated as of October 28, 2004, by
and between JO Acquisition Corp. and General
Electric Capital Corporation.
99.9 Agreement and Plan of Merger, dated as of October 28,
2004, by and among the Company and JO Acquisition
Corp. incorporated by reference to the Johnson
Outdoors Inc. Form 8-K, filed with the Securities and
Exchange Commission on October 29, 2004.
99.10 Contribution Agreement, dated as of October 28, 2004,
by and among the Reporting Persons and JO Acquisition
Corp.
99.11 Voting Agreement, dated as of October 28, 2004, by
and among the Reporting Persons and JO Acquisition
Corp.
99.12 Joint Filing Agreement.
99.13 Power of Attorney.
SCHEDULE 13D
----------------------------------- ------------------------------------
CUSIP NO. 479254 10 4 PAGE 16 OF 16 PAGES
----------------------------------- ------------------------------------
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: November 2, 2004 /s/ Helen P. Johnson-Leipold
------------------------------------
Helen P. Johnson-Leipold
Dated: November 2, 2004 /s/ Imogene P. Johnson
------------------------------------
Imogene P. Johnson
Dated: November 2, 2004 /s/ H. Fisk Johnson
------------------------------------
H. Fisk Johnson
Dated: November 2, 2004 /s/ S. Curtis Johnson
------------------------------------
S. Curtis Johnson
Dated: November 2, 2004 /s/ Winifred J. Marquart
------------------------------------
Winifred J. Marquart
Samuel C. Johnson 1988 Trust Number
One u/a September 14, 1988
Dated: November 2, 2004 By: /s/ Imogene P. Johnson
------------------------------
Name: Imogene P. Johnson
Title: Trustee
JWA Consolidated, Inc.
Dated: November 2, 2004 By: /s/ Imogene P. Johnson
------------------------------
Name: Imogene P. Johnson
Title: President and Director
Johnson Bank
Dated: November 2, 2004 By: /s/ Brian Lucareli
------------------------------
Name: Brian Lucareli
Title: Senior Vice President
EXHIBIT 99.8
COMMITMENT LETTER
October 28, 2004
CONFIDENTIAL
------------
Ms. Helen P. Johnson-Leipold
President and Chief Executive Officer
Mr. Roy T. George
Vice President and Secretary
JO Acquisition Corp.
555 Main Street
Racine, Wisconsin 53403
Re: Commitment Letter
-----------------
Ladies and Gentlemen:
You have advised General Electric Capital Corporation ("GE Capital" or
"Agent") that Helen P. Johnson-Leipold has formed a corporation, JO Acquisition
Corp. ("Newco"), that intends to acquire (the "Acquisition") the outstanding
shares of capital stock of Johnson Outdoors Inc. ("Parent") held by shareholders
other than Ms. Johnson, certain members of her family, or affiliates of her or
her family members (collectively, the "Purchasers"). The Acquisition will be
effected through the merger (the "Merger") of Newco into Parent, with Parent
being the surviving corporation.
You have further advised us that Newco is seeking up to $142 million
and up to (euro)27 million of financing (the "Financing") which will be combined
with available cash on hand as contemplated by the Projections (as hereinafter
defined), in support of (a) the Acquisition, and fees and expenses incurred in
connection therewith, (b) the refinancing of the indebtedness of the Borrowers
(as hereinafter defined) described on Schedule II attached hereto and (c) other
corporate purposes (collectively, the "Transaction"). For purposes of this
Commitment Letter, (i) Newco, Parent, Johnson Outdoors Canada and JWA Holding BV
("JWA" or the "European Borrower") are collectively referred to as the
"Borrowers" and individually as a "Borrower" and (ii) the Borrowers and any
guarantors referred to herein are collectively referred to as "Credit Parties".
We understand that Parent is a domestic operating company that directly
owns substantially all of the assets used in its business and does not have any
material domestic subsidiaries. We further understand that (a) Parent has no
Canadian subsidiaries other than Johnson Outdoors Canada, (b) all of Parent's
other foreign subsidiaries (other than Scubapro Scandinavia AB and Johnson
Outdoors Watercraft Ltd.) are owned directly or indirectly by JWA, a
wholly-owned Dutch subsidiary of Parent and (c) upon closing of the Merger, all
of Parent's outstanding capital stock will be owned by the Purchasers. At or
shortly following the closing, Parent will establish an employee stock ownership
plan ("ESOP") and issue in exchange for a promissory note from the ESOP
approximately 15 percent of Parent's post-closing equity to the ESOP in the form
of a newly-created convertible preferred stock.
You have asked that the Financing include: a $85 million Senior Secured
North American Revolving Credit Facility ("Revolver"); a $7 million Senior
Secured North American Term Loan ("North American Term Loan"); a (euro)27
million Senior Secured European Term Loan ("European Term Loan"); and a $50
million Senior Secured Second Lien Term Loan ("Second Lien Term Loan").
JO Acquisition Corp.
Commitment Letter
October 28, 2004
Based on our understanding of the Transaction as described above and
the information which you have provided to us to date, GE Capital is pleased to
offer its commitment to provide and hereby commits to provide the Financing
described in this Commitment Letter in the amount of up to $142 million and up
to (euro)27 million, subject to the following terms and conditions.
ADMINISTRATIVE AGENT: GE Capital.
--------------------
LEAD ARRANGER: GECC Capital Markets Group,
Inc. ("GECMG").
-------------
LENDERS: GE Capital and other
lenders acceptable to Agent.
-------
SUMMARY OF PROPOSED TERMS FOR REVOLVER
--------------------------------------
BORROWERS: Newco, Parent, and Johnson
--------- Outdoors Canada (collectively, the
"North American Borrowers").
Although Newco shall initially be a
Borrower, substantially concurrently
with the closing, Newco will be
merged with and into Parent with
Parent as the surviving corporation.
MAXIMUM AMOUNT: $85 million (including a
-------------- Letter of Credit Subfacility of up
to $10 million and a Foreign
Subfacility (as hereinafter defined)
of up to $5 million). Letters of
Credit will be issued either by a
bank or by GE Capital and/or one of
its affiliates, on terms acceptable
to GE Capital. The Lenders providing
the Revolver will purchase
irrevocable and unconditional
participation interests in the
Letters of Credit.
TERM: 60 months.
----
AVAILABILITY: Borrowing
------------ Availability on a combined basis
will be limited to the sum of (i)
85% of the North American Borrowers'
eligible accounts receivable and
(ii) the lesser of (a) 85% of the
appraised net orderly liquidation
value of the North American
Borrowers' eligible inventory (such
net orderly liquidation value
currently equals 59% of eligible
inventory for the period from
January through March or 53% of
eligible inventory for the period
from April through December, as
applicable, as reflected in that
certain appraisal prepared by Hilco
dated August 2, 2004, which
calculation and resulting
percentages of eligible inventory
are subject to change based upon
periodic appraisals performed
pursuant to the definitive loan
documentation), and (b) 60% of the
North American Borrowers' eligible
inventory valued at the lower of
cost (FIFO) or market, in each of
clauses (i) and (ii), less reserves
(the "Borrowing Base"), but not to
exceed the Maximum Amount; provided,
that during the period from (i)
December 15 through December 31 of
each year Borrowing Availability
shall not exceed the lesser of (A)
the Borrowing Base plus $2.5 million
and (B) the Maximum Amount, (ii)
January 1 through March 31 of each
year Borrowing Availability shall
not exceed the lesser of (A) the
Borrowing Base plus $5 million and
(B) the Maximum Amount, and (iii)
April 1 through April 15 of each
year Borrowing Availability shall
not exceed the lesser of (A) the
Borrowing Base plus $2.5 million and
(B) the Maximum Amount
(collectively, the "Seasonal
Overadvances").
Advances may be made to each
Borrower on the basis of its own
separate Borrowing Base. Agent will
retain the right from time to time
in its reasonable credit judgment to
establish or modify advance rates,
standards of eligibility and
reserves against availability,
provided, that Agent agrees,
assuming no deterioration in the
value of the Collateral (as
hereinafter defined) from the date
hereof until the Closing Date (as
hereinafter defined) that the
advance rates and standards of
eligibility utilized on the Closing
Date to determine the Borrowing Base
shall be consistent with the advance
rates and such standards used to
calculate the borrowing base
template attached as Schedule III
hereto; provided, further, that (i)
Agent in its reasonable credit
judgment may add additional
standards of eligibility to reflect
any change in the manner the North
American Credit Parties do business
or the composition of the Collateral
between the date hereof and the
Closing Date, and (ii) the dollar
values associated with the standards
of eligibility are subject to change
based upon Collateral performance.
As of the date hereof, assuming no
deterioration in the value of the
Collateral from the date hereof
until the Closing Date, Agent would
not anticipate that as of the
Closing Date the Borrowing Base
would be subject to any reserves
other than landlord lien reserves if
appropriate landlord waivers are not
obtained, reserves for amounts under
the Foreign Subfacility that are not
guaranteed by Ex-Im Bank (as defined
below) and other customary reserves
established by Agent in its
reasonable credit judgment. The face
amount of all letters of credit
outstanding under the Letter of
Credit Subfacility will be reserved
in full against availability.
SUMMARY OF PROPOSED TERMS
-------------------------
FOR FOREIGN SUBFACILITY
-----------------------
MAXIMUM FOREIGN AMOUNT: $5 million (the "Foreign
---------------------- Subfacility").
TERM: Thirty-six (36) months. The
---- Foreign Subfacility shall be renewed
for an additional twenty-four (24)
months so long as (i) no default
shall have occurred and then be
continuing, and (ii) the related
guarantee of Ex-Im Bank (as defined
below) is renewed or reissued for
such additional period. If the
Revolver is terminated, the Foreign
Subfacility will immediately be due
and payable in full.
AVAILABILITY: Borrowing availability will
------------ be limited to 90% of the North
American Borrowers' eligible foreign
accounts receivable, less reserves,
but not to exceed the Maximum
Foreign Amount. Ninety percent (90%)
of such advances shall be supported
by a guarantee of the Export-Import
Bank of the United States ("Ex-Im
Bank") on terms and conditions
acceptable to Agent. Agent will
retain the right from time to time
to establish or modify advance
rates, standards of eligibility and
reserves against availability, all
in accordance with its reasonable
credit judgment.
SUMMARY OF PROPOSED TERMS FOR
-----------------------------
NORTH AMERICAN TERM LOAN
------------------------
BORROWERS: The North American
--------- Borrowers.
AMOUNT Up to the lesser of (i) $7
----- million and (ii) the sum of (a) 50%
of the appraised fair market value
of the North American Borrowers'
eligible real property and (b) 85%
of the appraised net orderly
liquidation value of the North
American Borrowers' eligible
machinery and equipment to be
advanced on the date the Financing
is consummated (the "Closing Date").
TERM: 60 months. If the Revolver
---- is terminated, this North American
Term Loan will immediately be due
and payable in full.
AMORTIZATION: Level quarterly principal
------------ payments utilizing a 7-year
amortization period and a balloon
payment at maturity/Quarterly
amortization as follows:
Scheduled
Quarters Installments
-------- ------------
1-19 $250,000
20 $2,250,000
SUMMARY OF PROPOSED TERMS FOR
-----------------------------
EUROPEAN TERM LOAN
------------------
BORROWER: JWA Holding BV.
--------
AMOUNT: Up to the lesser of (i)
------ (euro)27 million and (ii) the
adjusted EBITDA (as defined and
determined in Annex 2 to Schedule V)
of the European Borrower and its
subsidiaries (denominated in Euros)
for the immediately preceding
12-month period multiplied by 2.6 to
be advanced on the Closing Date.
TERM: 60 months. If the Revolver
---- is terminated, this European Term
Loan will immediately be due and
payable in full.
AMORTIZATION: Level quarterly principal
------------ payments utilizing a 7-year
amortization period and a balloon
payment at maturity/Quarterly
amortization in the following
percentages:
Quarters Scheduled
-------- Installment
Percentage
----------
1-19 3.57%
20 32.17%
SUMMARY OF PROPOSED TERMS FOR
-----------------------------
SECOND LIEN TERM LOAN
---------------------
BORROWER: Johnson Outdoors Inc.
--------
AMOUNT: Up to $50 million to be
------ advanced on the Closing Date.
TERM: 66 months. If the Revolver
---- is terminated, this Second Lien Term
Loan will immediately be due and
payable in full.
AMORTIZATION: Bullet payment at maturity.
------------
TERMS OF GENERAL APPLICABILITY
------------------------------
USE OF PROCEEDS: Loans made on the Closing
--------------- Date will be used for the
refinancing of the indebtedness of
the Borrowers described on Schedule
II attached hereto, to fund the
Acquisition and to fund certain fees
and expenses associated with the
Transaction and the Financing. Loans
made after the Closing Date will be
used for Borrowers' working capital
purposes and permitted capital
expenditures.
INTEREST: For U.S. dollar denominated
-------- loans, at the North American
Rates: Borrower's option, either (i) absent
----- a default, 1, 2, 3 or 6 and 9 or 12
(if available) -month
reserve-adjusted LIBOR plus the
Applicable Margin(s) or (ii)
floating at the U.S. Dollar Index
Rate (higher of Prime or 50 basis
points over Fed Funds) plus the
Applicable Margin(s). For Euro
denominated loans, at European
Borrower's option, either (i) absent
a default, 1, 2, 3 or 6 and 9 or 12
(if available) -month
reserve-adjusted Euribor for the
applicable Euribor period plus the
Applicable Margin(s) or (ii)
floating at the Euro Index Rate
(minimum bid rate for Euros as
published by the European Central
Bank) plus the Applicable Margin(s).
Rate definitions, LIBOR and
Euribor mechanics and breakage fees
to be set forth in the final
documents.
Interest would be payable
monthly in arrears (except LIBOR and
Euribor which shall be paid at the
expiration of each applicable
period, provided that with respect
to any interest period greater than
3 months in duration, interest shall
also be paid at 3-month intervals)
and calculated on the basis of a
360-day year and actual days
elapsed.
APPLICABLE MARGINS: The following Applicable
------------------ Margins (consisting of per annum
rate margins) shall apply until the
Applicable Margins are adjusted as
described below:
Applicable Revolver Index Margin 1.00%
Applicable Revolver LIBOR Margin 2.50%
Applicable North American Term Loan Index 1.50%
Margin
Applicable North American Term Loan LIBOR 3.00%
Margin
Applicable European Term Loan Index Margin 4.50%
Applicable European Term Loan Euribor Margin 3.00%
Applicable Second Lien Term Loan Index 7.50%
Margin
Applicable Second Lien Term Loan LIBOR 9.00%
Margin
Applicable Unused Facility Fee Margin 0.50%
Applicable L/C Margin 2.50%
Starting with the delivery
to the Agent of Borrowers
consolidated quarterly financial
statements for the fiscal quarter
ending September, 2005, the
Applicable Margins shall be subject
to adjustment, prospectively, based
on Borrowers' consolidated financial
performance for the trailing four
quarters most recently ended in
accordance with the grid attached as
Schedule I. Notwithstanding the
foregoing, the Applicable Margins
for the Second Lien Term Loan shall
not be subject to adjustment. In
addition, notwithstanding anything
to the contrary contained herein,
the Applicable Revolver Index Margin
and the Applicable Revolver LIBOR
Margin shall equal 1.50% and 3.00%,
respectively, in respect of the
portion of any loan under the
Revolver which exceeds the Borrowing
Base as contemplated by the first
proviso under the heading
"Availability" set forth above.
The definitive Financing
documentation will contain
provisions regarding the delivery of
financial statements, and the timing
and mechanics of subsequent
prospective adjustments in
Applicable Margins. If a default is
continuing at the time that a
reduction in Applicable Margins is
to be implemented, that reduction
will be deferred until the first
month commencing after the cure or
waiver thereof.
FEES: In addition to the fees
---- payable to GE Capital as specified
in the fee letter between JO
Acquisition Corp. and GE Capital of
even date herewith (the "Fee
Letter"), the following fees will be
payable to Agent under the Financing
documentation.
Letter of Credit Fee: Equal to the Applicable L/C
-------------------- Margin per annum (calculated on the
basis of a 360-day year and actual
days elapsed) on the face amount of
the letters of credit under the
Revolver, payable monthly in
arrears, plus any costs and expenses
incurred by Agent in arranging for
the issuance or guaranty of Letters
of Credit and any charges assessed
by the issuing financial
institution.
Unused Facility Fee: Equal to the Applicable
------------------- Unused Facility Fee Margin per annum
(calculated on the basis of a
360-day year and actual days
elapsed) on the average unused daily
balance of the Revolver, payable
monthly in arrears.
Prepayment Premium: (i) Payable in the event
------------------ that the Revolver Commitment is
reduced or terminated or if the
Borrowers prepay all or any portion
of the North American Term Loan
and/or the European Term Loan other
than as a result of Mandatory
Prepayments prior to the second
anniversary of the Closing Date, in
an amount equal to the Revolver
Maximum Amount (or, in the case of a
Revolver Commitment reduction, the
amount of such reduction) and the
amount being prepaid on the North
American Term Loan and/or the
European Term Loan, multiplied by
2.0% upon a prepayment on or before
the first anniversary of the Closing
Date and 1.0% upon a prepayment
after the first anniversary but on
or before the second anniversary of
the Closing Date.
(ii) Payable in the event
that the Borrowers prepay all or any
portion of the Second Lien Term Loan
other than as a result of Mandatory
Prepayments (as hereinafter defined)
prior to the third anniversary of
the Closing Date, in an amount equal
to the amount being prepaid on the
Second Lien Term Loan multiplied by
2.0% upon a prepayment on or before
the first anniversary of the Closing
Date, 1.5% upon a prepayment after
the first anniversary but on or
before the second anniversary of the
Closing Date and 1.0% upon a
prepayment after the second
anniversary but on or before the
third anniversary of the Closing
Date.
DEFAULT RATES: From and after the
------------- occurrence and during the
continuance of a default, the
interest rates applicable to all
Loans and the Letter of Credit Fee
will be increased by 2% per annum
over the interest rate or Letter of
Credit Fee otherwise applicable and
such interest and fees will be
payable on demand.
SECURITY: To secure all obligations
-------- of the Borrowers to Agent and
Lenders, except as provided below,
in respect of the Revolver, the
North American Term Loan and the
European Term Loan, Agent will
receive (a) a fully perfected first
priority security interest in all of
the existing and after acquired real
and personal, tangible and
intangible assets of each North
American Borrower and their
respective domestic and Canadian
subsidiaries (if any) (collectively,
the "North American Credit
Parties"), including, without
limitation, all cash, cash
equivalents, bank accounts,
accounts, other receivables, chattel
paper, contract rights, inventory
(wherever located), instruments,
documents, securities (whether or
not marketable), equipment,
fixtures, real property interests,
franchise rights, patents, trade
names, trademarks, copyrights,
intellectual property, general
intangibles, investment property,
supporting obligations, letter of
credit rights, commercial tort
claims, causes of action and all
substitutions, accessions and
proceeds of the foregoing (including
insurance proceeds), but excluding
any intangible assets of the North
American Credit Parties related to
the diving business (the "Diving
Intangibles") of the European Credit
Parties (as hereinafter defined),
for which Agent will receive a
perfected second priority security
interest, and (b) a fully perfected
first priority pledge of (i) all of
the issued and outstanding capital
stock of the North American
Borrowers (excluding Parent and
Newco) and all their domestic and
Canadian subsidiaries, and (ii) a
second priority pledge of 100% of
the non-voting stock and 65% of the
voting stock of European Borrower
and each other first-tier foreign
subsidiary (collectively, the "North
American Collateral"). The Second
Lien Term Loan shall be secured by a
second or third priority, as the
case may be, security interest in
the North American Collateral.
In addition to the
foregoing, the European Term Loan
shall be secured by (a) a fully
perfected first priority security
interest in the foreign assets
listed in Schedule VI, (b) any
material foreign assets acquired
after the date hereof, (c) a fully
perfected first priority security
interest in the Diving Intangibles,
(d) a fully perfected first priority
pledge of all of the issued and
outstanding capital stock of the
European Borrower and its
subsidiaries, and (e) any other
existing material foreign assets if
the fourth succeeding paragraph is
no longer applicable thereto (the
"European Collateral"; the North
American Collateral and the European
Collateral are collectively referred
to as the "Collateral").
All Collateral will be free
and clear of other liens, claims and
encumbrances, except permitted liens
and encumbrances acceptable to
Agent.
The definitive loan
documentation to include a negative
pledge covenant with respect to all
foreign assets that Agent has not
been granted a fully perfected first
priority security interest.
The Revolver, the North
American Term Loan and the European
Term Loan (the "Senior Facilities")
shall be guaranteed by Parent and
all domestic and Canadian
subsidiaries of North American
Borrowers. The European Term Loan
shall also be guaranteed by all
subsidiaries of the European
Borrower. All Senior Facilities will
be cross-defaulted and
cross-collateralized to each other
except that European Collateral
shall not secure the Revolver or the
North American Term Loan.
Notwithstanding the
foregoing, foreign collateral
(including the collateral listed in
Schedule VI) or guarantees will not
be taken to the extent that (i) the
same would have an adverse tax
effect on the Borrowers (it being
understood that if Canadian
collateral is not taken, then the
Canadian assets would not be
included in the North American
borrowing base unless Borrowers
provide such collateral and accept
any related tax consequences), (ii)
the costs of obtaining the same are
excessive in relation to the value
of the security afforded thereby, or
(iii) the same would be prohibited
or restricted under local law.
Within 10 days of the
Closing Date, Agent is authorized to
pre-file financing statements and
other evidences of liens with
respect to all of the Collateral,
including "all assets" filings, if
applicable, naming Agent as secured
party.
MANDATORY PREPAYMENTS: Borrowers shall make
--------------------- prepayments against principal in the
following amounts (subject to
reasonable thresholds): (a) all net
proceeds of any sale or other
disposition of any of the assets of
any Borrower and any of their
respective subsidiaries, if any,
(other than the sale of inventory in
the ordinary course), (b) subject to
exceptions for repairs and
replacements, all net insurance
proceeds or other awards payable in
connection with the loss,
destruction or condemnation of any
assets of any Borrower or their
respective subsidiaries, if any, (c)
100% of the net cash proceeds from
the sale or issuance of equity or
debt securities (other than the sale
or issuance of equity by Parent to
the ESOP), and (d) annually, 50% of
consolidated Excess Cash Flow until
the ratio of (i) average total
indebtedness for the trailing four
quarters most recently ended to (ii)
consolidated adjusted EBITDA (as
provided below) for the trailing
four quarters most recently ended is
less than 2.5 times.
"Excess Cash Flow" will be
defined in the Financing
documentation, but will generally
mean consolidated net income plus
(a) depreciation, amortization and
interest expense to the extent
deducted in determining consolidated
net income, minus (b) capital
expenditures (excluding the financed
portion thereof), minus (c) interest
expense paid or accrued (excluding
any original issue discount,
interest paid in kind or amortized
debt discount, to the extent
included in determining interest
expense) and scheduled principal
payments paid or payable in respect
of funded debt, plus or minus (as
the case may be), (d) extraordinary
gains or losses which are cash items
not included in the calculation of
net income, minus (e) certain
mandatory prepayments paid in cash
with proceeds of equity issuances,
plus (f) taxes deducted in
determining consolidated net income
to the extent not paid for in cash,
minus (g) taxes paid in cash, if
any, that were not deducted in
determining consolidated net income.
These payments generally
will be applied against principal
installments due, in the inverse
order of maturity, on the North
American Term Loan or European Term
Loan, as applicable, until such loan
is paid in full and thereafter
against the Revolver without
reduction in availability.
Prepayments by any Borrower will be
applied first to the obligations of
that Borrower and thereafter to the
obligations owing by the other
Borrowers, pro rata. Payments from
Excess Cash Flow will be allocated
among the Borrowers based on their
relative contributions to Excess
Cash Flow. Notwithstanding the
foregoing, prepayments of the
Revolver or the North American Term
Loan will not be made from proceeds
of foreign collateral.
VOLUNTARY PREPAYMENTS: Borrowers may voluntarily
--------------------- prepay all or any portion of the
North American Term Loan or the
European Term Loan in minimum
amounts of $1,000,000 or
(euro)1,000,000, as applicable, at
any time, upon at least 5 days'
prior written notice. All voluntary
prepayments will be accompanied by
the prepayment premium described
above and LIBOR or Euribor breakage
costs, as applicable, if any.
FINANCIAL REPORTING: The Financing documentation
------------------- will require the Borrowers, on a
monthly basis, to provide to Agent
internally prepared financial
statements. Annually, Borrowers will
be required to provide audited
financial statements, a board
approved operating plan for the
subsequent year, and a
communications letter from
Borrowers' auditors. Borrowers will
provide Borrowing Base Certificates
on a monthly basis so long as no
default exists and if a default has
occurred and is continuing, on an as
requested basis. Additionally,
Borrowers will provide other
information reasonably requested by
Agent. All financial statements
shall be prepared on a consolidated
and consolidating basis.
DOCUMENTATION: The Financing documentation
------------- will contain representations and
warranties; conditions precedent;
affirmative, negative and financial
covenants; indemnities; events of
default and remedies as required by
Agent. Relevant documents, such as
subordination and intercreditor
agreements, equity or stockholder
agreements, incentive and employment
agreements, tax agreements, and
other material agreements executed
in connection with the Transaction,
to be reasonably acceptable to Agent
(such documentation to contain
reasonable baskets, thresholds,
exceptions, cure periods, and
notices mutually acceptable to Agent
and Borrowers). The covenants and
tests set forth herein are based
upon the Projections and the
underlying assumptions set forth
therein. Agent may revise any such
covenants and tests in its
reasonable credit judgment upon any
change in the assumptions underlying
the Projections that occur at any
time between the date hereof and the
Closing Date.
SYNDICATION: Upon acceptance of this
----------- letter, GECMG will initiate
discussions with potential lenders
relating to the syndication of the
Financing. It is expressly
understood by the Borrowers that GE
Capital through GECMG intends to
syndicate the Financing to allow GE
Capital to sell down the Financing
to a desired hold position.
Borrowers will agree to a
syndication timetable that allows
for the primary syndication of the
Financing prior to the Closing Date,
but the success of the syndication
will not be a condition precedent to
the closing of the Financing.
However, if at any time
prior to the completion of
syndication (whether before or after
closing), GECMG determines that it
may not be able to sell down the
Financing to GE Capital's desired
hold position (which is $70 million
(or the approximate equivalent
thereof) in the aggregate), then GE
Capital reserves the right, from
time to time after consultation with
Borrowers, to adjust the pricing,
structure, terms and amount of the
Financing as it deems appropriate in
order to effect a successful
syndication to such desired hold
position; provided, however, that
(i) neither the financial covenants
(solely with respect to the 15% and
20% cushions from the Projections as
hereinafter described) nor the
amortization schedule shall be more
stringent to the Borrowers than as
contained herein and (ii) the
structure shall not be changed so as
to require additional collateral,
(iii) pricing changes on the Senior
Facilities shall not exceed 50 basis
points on a weighted average basis,
(iv) the closing fee set forth in
the Fee Letter shall not be changed,
and (v) any pricing change on the
Second Lien Term Loan shall not
exceed 250 basis points. It is
hereby understood and agreed that GE
Capital's commitment hereunder is
expressly subject to the immediately
preceding sentence, and,
notwithstanding any provision in the
definitive Financing documentation
to the contrary, this paragraph
shall survive the closing of the
Financing. If, after consultation,
the Borrowers choose not to accept
the adjustments proposed and, as a
result, GE Capital chooses not to
close on the Financing on the
originally proposed terms, then GE
Capital's commitment to provide the
Financing set forth in this letter
shall be immediately terminated and
neither GE Capital nor its
affiliates shall have any liability
to any person in connection with any
funding of the Financing or any
portion thereof thereafter.
GECMG will syndicate the
transaction with the assistance of
Borrowers. Such assistance shall
include, but not be limited to (i)
prompt assistance in the preparation
of the Information Memorandum and
the verification of the completeness
and accuracy of the information
contained therein; (ii) preparation
of offering materials and
projections by Borrowers and their
advisors taking into account the
proposed Transaction and Financing;
(iii) providing GECMG with all
information reasonably deemed
necessary by GECMG to successfully
complete the syndication; (iv)
confirmation as to the accuracy and
completeness of such offering
materials, information and
projections; (v) participation of
Borrowers' senior management in
meetings and conference calls with
potential lenders at such times and
places as GECMG may reasonably
request; and (vi) using best efforts
to ensure that the syndication
efforts benefit from Borrowers'
existing lending relationships.
Neither GE Capital, GECMG
nor any of their affiliates can
provide any assurances that a
syndicate of lenders can be arranged
on these terms. None of them shall
have any liability if any
adjustments to the pricing,
structure, terms or amounts are
required to effect a successful
syndication to GE Capital's desired
hold position.
If GE Capital determines in
consultation with Newco that the
Financing can be successfully
syndicated on terms more favorable
to the Borrowers with respect to the
Second Lien Term Loan and/or the
allocations among the facilities,
then GE Capital agrees to make such
terms available to the Borrowers;
provided, however, that the
foregoing shall in no event modify
any fees payable to GE Capital
pursuant to the Fee Letter.
OTHER TERMS: GE Capital's commitment
----------- with respect to the Financing is
conditioned upon satisfaction of the
following conditions as of the
Closing Date, and the Financing
documents will require, among other
things, compliance with covenants
pertaining to the following (all in
form and substance satisfactory to
Agent)
o Borrowers' cash
management systems (as
reviewed by Agent as part
of its due diligence) shall
not be materially changed
without the consent of the
Agent, except for a
possible change of
provider. Agent will have
springing cash dominion
upon the occurrence and
during the continuance of a
default, or if, during the
period from April 16
through December 14 of each
year, excess availability
under the Revolver is less
than $5 million at any
time, or if, during the
period from December 15
through April 15, excess
availability under the
Revolver is less than $2
million at any time
(excluding any availability
under Seasonal Advances);
provided, that if after
such time such excess
availability is greater
than $5 million (or $2
million during the period
from December 15 through
April 15 (excluding any
availability under Seasonal
Advances)) for 30
consecutive days and no
default has occurred and is
continuing, Agent shall not
have the right to sweep the
Borrowers' cash unless the
conditions to springing
cash dominion occur again.
The cash dominion
contemplated above shall be
implemented pursuant to
satisfactory lockboxes and
blocked account agreements
executed at or prior to the
Closing Date.
o The inclusion of the
Foreign Subfacility is
expressly conditioned upon
satisfactory final approval
of the subfacility from
Ex-Im Bank.
o Commercially reasonable
insurance protection for
the Borrowers' industry,
size and risk and the
Agent's collateral
protection (terms,
underwriter, scope, and
coverage to be reasonably
acceptable to Agent); Agent
named as loss payee
(property/casualty) and
additional insured
(liability); and
non-renewal/cancellation/
amendment riders to provide
30 days advance notice to
Agent.
o Compliance with
applicable laws, decrees,
and material agreements or
obtaining of applicable
consents and waivers.
o General and collateral
releases from prior
lenders, customary
corporate and estoppel
certificates, and (subject
to mutually acceptable
exceptions)
landlord/mortgagee/ bailee
waivers and consignment or
similar filings.
o Limitations on commercial
transactions, management
agreements, service
agreements, and borrowing
transactions between any
Borrower and its officers,
directors, employees and
affiliates and intercompany
loans among Borrowers.
o Limitations on, or
prohibitions of, cash
dividends, other
distributions to equity
holders, payments in
respect of subordinated
debt, payment of management
fees to affiliates and
redemption of common or
preferred stock. Dividends
from subsidiaries to Parent
shall be permitted without
limitation.
o Prohibitions of mergers,
acquisitions, sale of any
Borrower, its stock or a
material portion of its
assets.
o Provisions for mutually
acceptable carve-outs from
the covenants (including
limitations on
distributions, share
repurchases, dividends,
debt and liens) for various
ESOP transactions by or
among Parent, its
shareholders and the ESOP.
o Prohibitions of a direct or
indirect change in control
of Borrowers.
o Limitations on capital
expenditures tied to the
management projections and
related assumptions dated
as of October 26, 2004
furnished by Newco (as
updated to reflect the most
recent month end financials
required to be delivered to
Agent prior to the Closing
Date pursuant to the
definitive loan
documentation, the
"Projections") to GE
Capital with a 15% cushion.
o Agent's rights of
Inspection, access to
facilities, management and
auditors.
o Customary yield protection
provisions, including,
without limitation,
provisions as to capital
adequacy, illegality,
changes in circumstances
and withholding taxes.
o Aggregate outstanding
principal amount drawn
under existing lines of
credit of the European
Credit Parties not to
exceed (i) (euro)5,000,000
between December 1 and June
30 of each year; provided,
however, in no event shall
such aggregate outstanding
principal amount, less cash
balances held by the
European Credit Parties,
exceed (euro)3,500,000 and
(ii) (euro)2,500,000
between July 1 and November
30 of each year; provided,
however, in no event shall
there be any such
outstanding balance on the
last day of any month
during such period referred
to in this clause (ii).
Prohibition on
establishment of new lines
of credit by any European
Credit Parties or extension
of existing lines of credit
on terms less favorable to
such European Credit
Parties, in Agent's
reasonable credit judgment.
o Governing law: New York.
OTHER CONDITIONS: GE Capital's commitment
---------------- with respect to the Financing will
be further conditioned upon the
following (all to Agent's
satisfaction):
o Delivery of the Merger
Agreement and other related
documents to Agent in a
timely manner. The Merger
shall have been consummated
substantially on the terms
set forth in the Merger
Agreement between Newco and
the Parent provided to
Agent on or prior to the
date hereof. The purchase
price payable in connection
with the Acquisition will
not exceed $87,000,000
(after reducing the stock
purchase price by any cash
collected from option
strike price payments
received on or after July
1, 2004). Aggregate fees
and closing costs
(including those payable to
Agent) payable in
connection with the
Transaction will not exceed
an additional $22,000,000.
o Agent not becoming aware of
any matter not disclosed,
or document or other
materials not provided, in
each case prior to the date
hereof, that in Agent's
reasonable credit judgment
materially adversely
affects the European
Borrower and all of
European Borrower's
subsidiaries that are not
North American Credit
Parties (collectively, the
"European Credit Parties"),
taken as a whole or the
North American Credit
Parties taken as a whole.
o Opinion of Corporate
Valuation Advisors, Inc.,
or other comparable
valuation firm reasonably
acceptable to Agent,
evidencing the solvency of
each Borrower at closing on
a consolidated and
consolidating basis after
taking into account the
Financing and the
Transaction.
o At closing the ratio of (i)
projected average total
indebtedness for the first
12 month period following
the Closing Date (using the
Projections) to (ii)
adjusted EBITDA (as defined
and adjusted in Schedule V)
for the 12 month period
immediately prior to
closing not to exceed
4.25x.
o Financial covenants to be
determined, but shall in
any event include (i) a
minimum fixed charge
coverage ratio, (ii) a
maximum consolidated senior
leverage ratio, (iii) a
maximum European senior
leverage ratio and (iv)
before and including
September 30, 2005, a
minimum adjusted EBITDA.
The covenants shall be set
utilizing a 15% cushion
from the Projections (or a
20% cushion in the case of
financial covenants
applicable to the Second
Lien Term Loan, it being
understood that the Second
Lien Term Loan shall have
cross acceleration rights
but not cross default
rights with respect to the
Senior Facilities).
o Minimum excess availability
for the North American
Borrowers in the aggregate
at closing (on a pro forma
basis, with trade payables
being paid currently,
expenses and liabilities
being paid in the ordinary
course of business and
without acceleration of
sales and without
deterioration of working
capital) of an amount to be
mutually agreed upon to
ensure that the North
American Borrowers maintain
at least $8.5 million of
excess availability for the
12-month period following
the Closing Date utilizing
the Projections. For the
purposes of clarification,
this availability condition
is a closing condition
only.
o Agent shall have received
Borrowers' unaudited
financial statements for
the period ending at least
20 days (but no more than
50 days) prior to the
Closing Date.
o With respect to the owned
real estate collateral
identified on Schedule IV
and any other fee interest
in real property acquired
by any domestic Credit
Party after the date
hereof, receipt of real
property surveys, title
commitments, title
insurance policies in
amount, form and from, as
applicable, an issuer
satisfactory to Agent.
o Receipt of all necessary or
appropriate third party and
governmental waivers and
consents.
o Opinions of counsel from
Borrowers' counsel
customary for transactions
of this type (including
local counsel as requested)
reasonably acceptable to
Agent.
o As of the Closing Date,
there will have been (i)
since Credit Parties' last
audited financial
statements, no material
adverse change, in the
business or financial
condition or assets of the
North American Credit
Parties taken as a whole,
or in the business or
financial condition or
assets of the European
Credit Parties taken as a
whole, (ii) no litigation
commenced which is
reasonably likely to have a
material adverse impact on
the Credit Parties taken as
a whole, their business, or
their ability to repay the
loans, or which is
reasonably likely to
invalidate the transactions
under consideration, (iii)
since Credit Parties' last
audited financial
statements, no material
increase in the
liabilities, liquidated or
contingent, of the Credit
Parties taken as a whole,
or a material decrease in
the assets of the Credit
Parties taken as a whole
and (iv) since the date
hereof, no change in loan
syndication, financial or
capital market conditions
generally that in GECMG's
reasonable judgment would
materially impair
syndication of the
Financing.
o The absence of any other
offer, issuance, placement,
syndication or arrangement
of any debt securities or
debt facilities by or on
behalf of any of the
Borrowers or any of their
respective affiliates
(including any renewals,
restatements, restructuring
or refinancings of any
existing debt securities or
debt facilities), the
announcement or
authorization of the
announcement of any of the
foregoing, or any attempts,
discussions or agreements
to do any of the foregoing,
except with the consent of
Agent. In addition, the
Agent hereby consents to
discussions by the
Borrowers or Newco with the
Borrowers' existing
insurance lenders in the
event that any Borrower or
Newco reasonably
anticipates that there will
be insufficient cash
available to consummate the
Transaction under the terms
hereof and such Borrower or
Newco has given Agent seven
days prior written notice
of such proposed
discussions.
GE Capital's commitment hereunder is subject to the execution and
delivery of final legal documentation consistent with the terms set forth in the
Commitment Letter and otherwise reasonably acceptable to GE Capital and its
counsel incorporating, without limitation, the terms set forth in this
Commitment Letter.
During the term of this Commitment Letter and GE Capital's commitment
hereunder, you agree that GECMG will act as the sole syndication agent for the
Loans and that no additional agents, co-agents or arrangers will be appointed,
or other titles conferred, without GECMG's consent. You agree that no Lender
will receive any compensation of any kind for its participation in the Financing
effected hereunder, except as expressly provided for in this letter or
subsequently agreed to in writing by Newco and Agent.
To the extent the syndication of the Financing has not been completed
prior to the closing of the Financing (which completion shall be deemed to have
occurred at such time as GE Capital's exposure and loan commitment under the
Financing has been finally reduced to $70 million in the aggregate pursuant to
the syndication to other financial institutions of the Financing), until the
completion of the syndication of the Financing, Newco shall not (and shall cause
the other Borrowers and Newco's and the other Borrowers' affiliates not to),
without the prior written consent of GECMG, offer, issue, place, syndicate or
arrange any debt securities or debt facilities (including any renewals,
restatements, restructuring or refinancings of any existing debt securities or
debt facilities), attempt or agree to do any of the foregoing, announce or
authorize the announcement of any of the foregoing, or engage in discussions
(other than with Parent's existing lenders, provided that GECMG is notified of
such discussions and has the option to participate) concerning any of the
foregoing. Except as otherwise provided in the definitive Financing
documentation to the contrary, this paragraph shall survive the execution and
delivery of the definitive Financing documentation and the closing of the
Financing and shall remain in full force and effect until the completion of the
syndication.
By signing this Commitment Letter, each party acknowledges that this
Commitment Letter supersedes any and all discussions and understandings, written
or oral, between or among GE Capital and any other person as to the subject
matter hereof, including, without limitation, any prior commitment letters, the
letter of interest dated May 28, 2004 between GE Corporate Financial Services,
Inc. ("CFS") and Valuemetrics on behalf of itself and Parent and the work fee
letter dated July 2, 2004 between CFS and Newco (collectively, the "Prior
Letter"). No amendments, waivers or modifications of this Commitment Letter or
any of its contents shall be effective unless expressly set forth in writing and
executed by the parties hereto.
This Commitment Letter is being provided to you on the condition that,
except as required by law (including, without limitation, as may be required by
the U.S. securities laws and the rules and regulations thereunder), neither it,
the Prior Letter, nor their contents will be disclosed publicly or privately
except to those individuals who are officers, directors, employees or advisors
(including accountants, attorneys and other professional advisors) of Newco, the
Purchasers and/or Parent or the directors thereof who have a need to know of
them as a result of their being specifically involved in the Transaction under
consideration or the Financing and then only on the condition that such matters
may not, except as required by law, be further disclosed. No person, other than
the parties signatory hereto, is entitled to rely upon this Commitment Letter or
any of its contents. No person shall, except as required by law, use the name
of, or refer to, GE Capital, or any of its affiliates, in any correspondence,
discussions, press release, advertisement or disclosure made in connection with
the Transaction without the prior written consent of GE Capital.
Regardless of whether the commitment herein is terminated or the Merger
or the Financing closes, you agree to pay upon demand to GE Capital all
reasonable out-of-pocket expenses ("Transaction Expenses") which may be incurred
by GE Capital or GECMG in connection with the Financing or the Transaction
(including all reasonable legal, environmental, and other consultant costs and
fees incurred in the preparation of this Commitment Letter, the Prior Letter,
and evaluation of and documenting of the Financing and the Transaction).
Regardless of whether the commitment herein is terminated or the Transaction or
the Financing closes, you shall indemnify and hold harmless each of GE Capital,
GECMG, the Lenders, their respective affiliates, and the directors, officers,
employees, agents, attorneys and representatives of any of them (each, an
"Indemnified Person"), from and against all suits, actions, proceedings, claims,
damages, losses, liabilities and expenses (including, but not limited to,
attorneys' fees and disbursements and other costs of investigation or defense,
including those incurred upon any appeal), which may be instituted or asserted
against or incurred by any such Indemnified Person in connection with, or
arising out of, this Commitment Letter, the Prior Letter, the Financing or the
Transaction under consideration, the documentation related thereto, any other
financing related thereto, any actions or failures to act in connection
therewith, and any and all environmental liabilities and legal costs and
expenses arising out of or incurred in connection with any disputes between or
among any parties to any of the foregoing, and any investigation, litigation, or
proceeding related to any such matters. Notwithstanding the preceding sentence,
indemnitors shall not be liable for any indemnification to an Indemnified Person
to the extent that any such suit, action, proceeding, claim, damage, loss,
liability or expense results solely from that Indemnified Person's gross
negligence or willful misconduct, as finally determined by a court of competent
jurisdiction. Under no circumstances shall GE Capital, GECMG, or any of their
respective affiliates be liable to you or any other person for any punitive,
exemplary, consequential or indirect damages which may be alleged in connection
with this Commitment Letter, the Prior Letter, the Transaction, the Financing,
the documentation related thereto or any other financing, regardless of whether
the commitment herein is terminated or the Merger or the Financing closes.
EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS COMMITMENT LETTER,
THE PRIOR LETTER, ANY TRANSACTION RELATING HERETO OR THERETO, OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
OR THEREWITH, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. EACH PARTY HERETO
CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK COUNTY,
CITY OF NEW YORK, NEW YORK, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG ANY OF THE PARTIES HERETO
PERTAINING TO THIS COMMITMENT LETTER, THE PRIOR LETTER, THE FINANCING OR THE
TRANSACTION UNDER CONSIDERATION, ANY OTHER FINANCING RELATED THERETO, AND ANY
INVESTIGATION, LITIGATION, OR PROCEEDING RELATED TO OR ARISING OUT OF ANY SUCH
MATTERS, PROVIDED, THAT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT (INCLUDING AN APPELLATE COURT)
LOCATED OUTSIDE OF SUCH JURISDICTION. EACH PARTY HERETO EXPRESSLY SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY
SUCH COURT, AND HEREBY WAIVES ANY OBJECTION WHICH SUCH PARTY MAY HAVE BASED UPON
LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR INCONVENIENT FORUM.
This Commitment Letter is governed by and shall be construed in
accordance with the laws of the State of New York applicable to contracts made
and performed in that state.
During the term of this Commitment Letter, GE Capital shall have access
at reasonable time during normal business hours to all relevant facilities,
personnel and accountants, and copies of all documents which GE Capital may
reasonably request, including business plans, financial statements (actual and
pro forma), books, records, and other documents of each Credit Party.
You shall have the right to terminate this letter at any time provided
that your obligations with respect to Transaction Expenses and indemnification
shall survive the termination of this letter.
This Commitment Letter shall be of no force and effect unless and until
(a) this Commitment Letter is executed and delivered to the undersigned GE
Capital on or before 1:00 p.m. New York time on October 29, 2004 at 335 Madison
Avenue, 12th Floor, New York, NY 10024 and (b) such delivery is accompanied by
payment of the Commitment Letter Delivery Fee (as referred to in the Fee Letter)
and any other fees or deposits due and payable to GE Capital as provided herein.
Once effective, GE Capital's commitment to provide financing in accordance with
the terms of this Commitment Letter shall cease if the Merger does not close, or
the Financing is not funded for any reason, on or before March 31, 2005 and,
notwithstanding any further discussions, negotiations or other action taken
after such date, neither GE Capital nor any of its affiliates shall have any
liability to any person in connection with its refusal to fund the Financing or
any portion thereof after such date.
We look forward to continuing to work with you toward completing this
transaction. Our business is helping yours.
Sincerely,
GENERAL ELECTRIC CAPITAL
CORPORATION
/s/ Christopher Cox
By: Christopher Cox
Its: Duly Authorized Signatory
AGREED AND ACCEPTED THIS
28th DAY OF OCTOBER, 2004
JO ACQUISITION CORP.
/s/ Helen P. Johnson-Leipold
----------------------------
By: Helen P. Johnson-Leipold
Title: President and Chief Executive Officer
EXHIBIT 99.10
CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT (this "Agreement"), dated as of October 28,
2004 (the "Effective Date"), is made by and between JO Acquisition Corp., a
Wisconsin corporation ("Acquisition Corp."), and each party listed on Schedule I
hereto, as such schedule may be amended from time to time to reflect additional
persons who become parties hereto (each, a "Beneficial Holder" and collectively,
the "Beneficial Holders").
W I T N E S S E T H:
WHEREAS, each Beneficial Holder holds, directly or indirectly and
either individually or jointly, the voting and dispositive power over the issued
and outstanding shares of Class A Common Stock, par value $0.05 per share (the
"Class A Common Stock"), and Class B Common Stock, par value $0.05 per share
("Class B Common Stock" and together with the Class A Shares "Company Common
Stock"), of Johnson Outdoors Inc., a Wisconsin corporation (the "Company"), set
forth opposite such Beneficial Holder's name on Schedule I hereto (collectively,
the "Contribution Shares"); and
WHEREAS, Acquisition Corp. and the Company are parties to that certain
Agreement and Plan of Merger, dated as of October 28, 2004 (the "Merger
Agreement"), pursuant to which Acquisition Corp. will merge with and into the
Company and the issued and outstanding Company Common Stock, options and other
convertible securities of the Company will be cancelled or converted in
accordance with the terms of the Merger Agreement (the "Merger"); and
WHEREAS, as a condition to the Merger Agreement, each Beneficial Holder
is entering into this Agreement pursuant to which the Contribution Shares will
be contributed to Acquisition Corp. in consideration of the issuance by
Acquisition Corp. of an equivalent number of the shares of the common stock of
Acquisition Corp. (the "Acquisition Corp. Shares"); and
WHEREAS, Acquisition Corp. and the Beneficial Holders intend that the
transfer of property by the Beneficial Holders to Acquisition Corp. as set forth
herein will constitute the transfer of property within the meaning of section
351(a) of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of and in reliance upon the covenants,
conditions, representations and warranties herein contained, the parties hereto
agree as follows:
1. Contribution of Company Common Stock.
(a) Subject to the terms and conditions set forth in this Agreement
and in reliance upon the representations and warranties herein, on the
Contribution Date (as defined in Section 2 below), each Beneficial Holder shall,
severally and not on behalf of any other Beneficial Holder, contribute,
transfer, assign, convey and deliver (or cause to be contributed, transferred,
assigned, conveyed and delivered) to Acquisition Corp. those Contribution Shares
over which such Beneficial Holder is the record holder or holds sole voting and
dispositive power, and shall use his, her or its best efforts to cause to be
contributed, transferred, assigned, conveyed and delivered to Acquisition Corp.
those Contribution Shares over which such Beneficial Holder has shared or
otherwise indirect or shared voting and dispositive power, in each case, in
consideration for receipt of Acquisition Corp. Shares by the record holder of
such Contribution Shares (such contribution, transfer, assignment, conveyance
and delivery of all of the Contribution Shares that are the subject of this
Agreement being referred to hereinafter as the "Contribution") free and clear of
any lien, pledge, security interest or other encumbrance (collectively "Liens")
other than Liens in favor of one or more of the other parties hereto, the
Company or as provided by Section 180.0622(2)(b) of the Wisconsin business
corporation law ("WBCL").
(b) Notwithstanding anything to the contrary set forth herein,
transfers of an aggregate of up to 450,000 shares of Class A Common Stock held
of record by the Samuel C. Johnson 1988 Trust Number One u/a September 14, 1988,
in satisfaction of pecuniary bequests existing on the date hereof, shall not be
a breach of this Agreement or deemed to be transfers prohibited hereby, provided
that contemporaneously with any such transfer, an amount in cash equal to the
product of the number of shares of Class A Common Stock so transferred
multiplied by the Merger Consideration (as defined in the Merger Agreement) is
contributed to Acquisition Corp.
2. Contribution Date. Consummation of the Contribution and the issuance
by Acquisition Corp. of the Acquisition Corp. Shares shall take place at the
offices of McDermott Will & Emery LLP, Chicago, Illinois, or at such other place
as the parties hereto may mutually agree, after the last of the conditions set
forth in Article VII of the Merger Agreement has been fulfilled or waived, or at
such earlier time as the parties hereto may agree, but in any event prior to the
Effective Time (as defined in the Merger Agreement) (the "Contribution Date").
(a) Action by Beneficial Holders. Subject to the terms and
conditions set forth herein, on the Contribution Date:
(i) each Beneficial Holder shall, severally and not on behalf of
any other Beneficial Holder, cause to be delivered to Acquisition Corp. stock
certificates representing the Contribution Shares over which such Beneficial
Holder is the record holder or holds sole or shared voting and dispositive
power, which certificates shall be endorsed in blank or accompanied by stock
powers endorsed in blank;
(ii) if any Contribution Shares are held in the name of a record
holder other than the Beneficial Holder (each, a "Record Holder"), on the
Contribution Date, the Beneficial Holder shall use its best efforts to cause
such Record Holder to become party to this Agreement by executing a counterpart
signature page and joinder agreement hereto, in a form reasonably satisfactory
to Acquisition Corp.; and
(iii) if any Contribution Shares are held in "street name", such
Beneficial Holder agrees to arrange for appropriate transfer to Acquisition
Corp. hereunder.
(b) Action by Acquisition Corp. Subject to the terms and conditions
herein contained, on the Contribution Date, Acquisition Corp. shall issue and
deliver to each Beneficial Holder (or appropriate Record Holder, as the case may
be) such documents as the Beneficial Holder may reasonably request, evidencing
the Acquisition Corp. Shares issued to the Beneficial Holder (or Record Holder,
as the case may be) in consideration of the Contribution.
3. Unwind if Merger Terminated. In the event that the Contribution is
consummated but the Merger Agreement is terminated in accordance with its terms,
then promptly following such termination, each Beneficial Holder and Record
Holder shall assign, transfer, convey and deliver to Acquisition Corp. the
number of Acquisition Corp. shares received by him, her or it pursuant to this
Agreement and, in exchange therefor, Acquisition Corp. shall assign, transfer,
convey and deliver to such Beneficial Holder (or Record Holder, as the case may
be) the Contribution Shares so contributed by him, her or it to Acquisition
Corp. on the Contribution Date.
4. Representations And Warranties of the Parties.
(a) Representations of the Beneficial Holders. Each Beneficial
Holder and each Record Holder who becomes a party hereto, severally and not
jointly, represents and warrants to Acquisition Corp. as follows:
(i) Authority. Such Beneficial Holder (or Record Holder, as the
case may be) has the capacity, or, in the case of a person other than a natural
person acting as an individual, has all necessary power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby.
(ii) Validity and Enforceability. This Agreement has been duly
executed and delivered by such Beneficial Holder (or such Record Holder who
becomes a party hereto, as the case may be) and, assuming due authorization,
execution and delivery by Acquisition Corp., represents the legal, valid and
binding obligation of such Beneficial Holder or such Record Holder enforceable
against such Beneficial Holder or Record Holder in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights, and to general
equitable principles. Except as contemplated hereby, no further action on the
part of such Beneficial Holder or Record Holder is or will be required in
connection with the transactions contemplated hereby.
(iii) Title. Such Beneficial Holder (or such Record Holder, as
the case may be) has good and marketable title to the number of Contributed
Shares set forth opposite such Beneficial Holder's name on Schedule I hereto (or
set forth in the document by which such Record Holder became a party hereto, as
the case may be), free and clear of any and all Liens other than as set forth in
Section 1(b) or Liens in favor of the Company or one or more of the other
parties hereto or as provided by Section 180.0622(2)(b) of the WBCL. Upon the
consummation of the transactions contemplated by this Agreement, Acquisition
Corp. will acquire good and valid title to the Contributed Shares contributed by
such Beneficial Holder or Record Holder, free and clear of all Liens, other than
Liens in favor of the Company or one or more of the other parties hereto or as
provided by Section 180.0622(2)(b) of the WBCL.
(iv) No Conflict. Except as contemplated hereby, the execution
and delivery of this Agreement by such Beneficial Holder or Record Holder does
not, and the performance by such Beneficial Holder or Record Holder of his or
her obligations under this Contribution Agreement and the consummation of the
transactions contemplated hereby will not (A) violate, conflict with or result
in a breach or termination of, or otherwise give any person additional rights or
compensation under, or the right to terminate or accelerate, or constitute (with
notice or lapse of time, or both) a default under the terms of any note, deed,
lease, instrument, security agreement, mortgage, commitment, contract,
agreement, license or other instrument or oral understanding to which such
Beneficial Holder or Record Holder is a party, (B) result in the creation of any
Liens upon the Contributed Shares or any of the assets or properties of such
Beneficial Holder or Record Holder or (C) require such Beneficial Holder or
Record Holder to obtain any consent, approval or action of, make any filing with
or give any notice to any person as a result or under the terms of any contract
to which such Beneficial Holder or Record Holder is a party or by which any of
his or her properties is bound.
(v) Consents. No consent, approval or authorization of any
person or federal, state, local or foreign government, political subdivision,
legislature, court, agency, department, bureau, commission or other governmental
regulatory authority, body or instrumentality (each, a "Governmental Entity") is
required in connection with the execution and delivery by such Beneficial Holder
or Record Holder of this Agreement or the consummation of the transactions
contemplated hereby.
(vi) Investment Intent. Such Beneficial Holder (or Record
Holder, as the case may be) represents that he, she or it is an "accredited
investor" as such term is defined in Rule 501 under the Securities Act of 1933,
as amended (the "Securities Act"), that the Acquisition Corp. Shares are being
acquired for the account of the Beneficial Holder or the Record Holder, as
applicable, for investment only and not with a view to, or any present intention
of, effecting a distribution of such securities or any part thereof except
pursuant to a registration statement or an available exemption under applicable
law. Such Beneficial Holder or Record Holder acknowledges that the Acquisition
Corp. Shares have not been registered under the Securities Act or the securities
laws of any state or other jurisdiction and cannot be disposed of unless they
are subsequently registered under the Securities Act and any applicable state
laws or unless an exemption from such registration is available. Such Beneficial
Holder or Record Holder (A) has knowledge and experience in financial and
business matters so as to be capable of evaluating and understanding the merits
and risks of an investment in the Acquisition Corp., (B) has received and
reviewed certain information concerning the Acquisition Corp. and has had the
opportunity to obtain additional information as desired in order to evaluate the
merits and the risks inherent of an investment in the Acquisition Corp. and (C)
is able to bear the economic risk of its investment in the Acquisition Corp. and
the Acquisition Corp. and in that, among other factors, such Beneficial Holder
or Record Holder can afford to hold the Acquisition Corp. for an indefinite
period and can afford a complete loss of its investment in the Acquisition Corp.
(b) Representations of Acquisition Corp. Acquisition Corp.
represents and warrants to each Beneficial Holder and to each Record Holder who
becomes a party hereto as follows:
(i) Organization; Power and Authority. Acquisition Corp. is a
corporation duly organized and validly existing under the laws of the State of
Wisconsin. Acquisition Corp. has all necessary power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby.
(ii) Validity and Enforceability. This Agreement has been duly
executed and delivered by Acquisition Corp. and, assuming due authorization,
execution and delivery by each Beneficial Holder and each Record Holder,
represents the legal, valid and binding obligation of Acquisition Corp.
enforceable against Acquisition Corp. in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights, and to general
equitable principles. No further action on the part of Acquisition Corp. is or
will be required in connection with the transactions contemplated hereby.
(iii) No Conflict. The execution and delivery of this Agreement
by Acquisition Corp. does not, and the performance by Acquisition Corp. of its
obligations under this Contribution Agreement and the consummation of the
transactions contemplated hereby will not (A) violate or conflict with
Acquisition Corp.'s articles of incorporation or bylaws or any law, order,
judgment or decree, applicable to Acquisition Corp. or by which it is bound, (B)
violate, conflict with or result in a breach or termination of, or otherwise
give any person additional rights or compensation under, or the right to
terminate or accelerate, or constitute (with notice or lapse of time, or both) a
default under the terms of any note, deed, lease, instrument, security
agreement, mortgage, commitment, contract, agreement, license or other
instrument or oral understanding to which Acquisition Corp. is a party, or (C)
result in the creation of any Liens upon the assets or properties of Acquisition
Corp.
(iv) Consents. No consent, approval or authorization of any
person or Governmental Entity is required in connection with the execution and
delivery by Acquisition Corp. of this Agreement or the consummation of the
transactions contemplated hereby.
(v) Issuance of Acquisition Corp. Shares. As of the Contribution
Date, and after giving effect to the transactions contemplated hereby, issuance
to the Beneficial Holders and/or the Record Holders, as applicable, of the
shares of Acquisition Corp. upon satisfaction of all of the conditions
contemplated herein and the consummation of the Contribution will have been duly
authorized, and such shares will be validly issued, fully paid and
non-assessable(subject to Section 180.0622(2)(b) of the WBCL and judicial
interpretations thereof); will have been offered, issued, sold and delivered in
compliance in all material respects with applicable federal and state securities
laws; and will not be subject to any preemptive rights.
5. Assumption of Liabilities and Expenses. As of the date hereof, J
Venture Management, Inc. ("JVM") and certain of the Beneficial Holders have
incurred out-of-pocket expenses and other obligations in connection with the
investigation, evaluation, offer, negotiation, financing and other actions on
behalf of the Beneficial Holders in relation to the Merger, the financing
thereof and the transactions contemplated by this Agreement and by the Merger
Agreement, including but not limited to the costs and expenses of financial and
legal advisors, and JVM and the Beneficial Holders expect to incur additional
costs and expenses in order to consummate the Merger and the transactions
contemplated by this Agreement and the Merger Agreement (collectively, the
"Obligations"). Acquisition Corp. hereby agrees (1) to reimburse the Beneficial
Holders and JVM for all of the Obligations, and (2) to assume such Obligations
and to indemnify and hold JVM and the Beneficial Holders harmless from and
against any and all claims and liabilities arising in connection therewith or
resulting therefrom.
6. Fiduciary Duties. Notwithstanding anything in this Agreement to the
contrary set forth herein, none of the covenants and agreements contained in
this Agreement shall prevent any Beneficial Holder from serving as an officer of
the Company or a member of the Company's Board of Directors, or from taking any
action, subject to the applicable provisions of the Merger Agreement, while
acting in such capacity as an officer or a director of the Company.
7. Miscellaneous Provisions.
(a) Beneficial Holder Acting Individually. In executing this
Agreement, each Beneficial Holder is acting individually, and not jointly with
other similarly situated owners of Company Common Stock.
(b) No Shared Voting or Disposition Authority. By entering into this
Agreement, the Beneficial Holder does not agree to confer upon any other person
or share the power to dispose or vote or direct the disposition or voting of
his, her or its Company Common Stock.
(c) Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings of the parties, oral and
written, with respect to the subject matter hereof.
(d) Amendment; Binding Effect. This Agreement may only be amended by
a written instrument executed by Acquisition Corp. and a majority-in-interest of
the Beneficial Holders. This Agreement shall inure to the benefit of and bind
the respective parties, successors and assigns.
(e) Notices. Any notice required to be given hereunder shall be
sufficient if in writing, and sent by facsimile transmission or by courier
service (with proof of service), or hand delivery, addressed to Acquisition
Corp. or to the Beneficial Holder, as the case may be, as set forth on Schedule
II hereto.
(f) Waiver. The failure of any of the parties hereto to at any time
enforce any of the provisions of this Agreement shall not be deemed or construed
to be a waiver of any such provision, nor to in any way affect the validity of
this Agreement or any provision hereof or the right of any of the parties hereto
to thereafter enforce each and every provision of this Agreement. No waiver of
any breach of any of the provisions of this Agreement shall be effective unless
set forth in a written instrument executed by the party or parties against whom
or which enforcement of such waiver is sought; and no waiver of any such breach
shall be construed or deemed to be a waiver of any other or subsequent breach.
(g) Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. Accordingly, the parties further agree that each party will be
entitled to an injunction or restraining order to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction, this being in
addition to any other right or remedy to which such party may be entitled under
this Agreement, at law or in equity.
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Wisconsin, without regard to the
principles of conflicts of law thereof.
(i) Counterparts. This Agreement may be executed by facsimile and in
two or more counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument.
(j) Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated herein are not affected in any manner materially
adverse to any party hereto. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner.
(k) Termination. This Agreement shall terminate upon the termination
of the Merger Agreement in accordance with its terms; provided, however, that to
the extent Acquisition Corp. receives Expense Reimbursement (as defined in the
Merger Agreement) from the Company, then the obligations of Acquisition Corp.
under Section 5 shall continue notwithstanding termination.
[Signature page follows.]
IN WITNESS WHEREOF, this Agreement has been executed and delivered
by the parties hereto as of the date set forth below.
JO ACQUISITION CORP.
By: /s/ Helen P. Johnson-Leipold
-----------------------------------------
Name: Helen P. Johnson-Leipold
Its: President and Chief Executive Officer
BENEFICIAL HOLDERS:
/s/ Helen P. Johnson-Leipold
----------------------------
Helen P. Johnson-Leipold
/s/ Imogene P. Johnson
----------------------------
Imogene P. Johnson
/s/ H. Fisk Johnson
----------------------------
H. Fisk Johnson
/s/ S. Curtis Johnson
----------------------------
S. Curtis Johnson
/s/ Winifred J. Marquart
----------------------------
Winifred J. Marquart
JOHNSON BANK
By: /s/ Brian Lucareli
----------------------------
Name: Brian Lucareli
Title: Senior Vice President
BENEFICIAL HOLDERS:
JWA CONSOLIDATED, INC.
By: /s/ Imogene P. Johnson
----------------------------
Name: Imogene P. Johnson
Title: President
SAMUEL C. JOHNSON 1988 TRUST NUMBER ONE
U/A SEPTEMBER 14, 1988
By: /s/ Imogene P. Johnson
----------------------------
Name: Imogene P. Johnson
Title: Co-Trustee
SCHEDULE I
CONTRIBUTION SHARES
BENEFICIAL HOLDER CONTRIBUTION SHARES
----------------- -------------------
Sole Voting/ Shared Voting/
Dispositive Power Dispositive Power 2
----------------- -----------------
Class A Class B Class A Class B
Common Stock 1 Common Stock Common Stock Common Stock
------------ ------------ ------------ ------------
Helen P. Johnson-Leipold 323,444 0 340,786 1,066,722
Imogene P. Johnson 32,288 0 2,354,529 1,062,330
H. Fisk Johnson 387,596 0 145,679 1,070,114
S. Curtis Johnson 29,009 0 150,886 1,047,330
Winifred J. Marquart 20 0 68,200 19,008
Johnson Bank 71,724 47,780 2,747,964 76,184
JWA Consolidated, Inc. 114,464 0 0 1,037,330
Samuel C. Johnson 1988 Trust 0 0 2,354,529 1,062,330
Number One u/a September 14, 1988
1 Excludes options to acquire shares held of record by Samuel C. Johnson 1988
Trust Number One u/a September 14, 1988.
2 Represents shares over which one or more of the Beneficial Holders together
hold 100% of the voting and dispositive power; represents an aggregate total of
2,777,964 shares of Class A Common Stock and 1,123,514 shares of Class B Common
Stock.
SCHEDULE II
BENEFICIAL HOLDER ADDRESS
----------------- -------
Helen P. Johnson-Leipold 555 Main St., Racine, WI
Imogene P. Johnson 555 Main St., Racine, WI
H. Fisk Johnson 555 Main St., Racine, WI
S. Curtis Johnson 555 Main St., Racine, WI
Winifred J. Marquart 555 Main St., Racine, WI
Johnson Bank 555 Main St., Racine, WI
JWA Consolidated, Inc. 555 Main St., Racine, WI
Samuel C. Johnson 1988 Trust 555 Main St., Racine, WI
Number One u/a September 14, 1988
CONTRIBUTION AGREEMENT
----------------------
COUNTERPART SIGNATURE PAGE AND JOINDER AGREEMENT
By executing this page in the space provided, the undersigned investor
hereby agrees (i) that it is a ["BENEFICIAL HOLDER"] ["RECORD HOLDER"] as
defined in that certain Contribution Agreement dated as of October 28, 2004 and
as amended through the date hereof, by and among JO Acquisition Corp. and
certain Beneficial Holders identified therein (the "Contribution Agreement"),
(ii) that it is a party to the Contribution Agreement for all purposes and (iii)
that it is bound by all terms and conditions of the Contribution Agreement.
Number of shares: Class A Common Stock
---------------------
Class B Common Stock
----------------------
EXECUTED this day of 200 .
--- --------------- -
---------------------------
(Print or Type Name)
(Signature)
EXHIBIT 99.11
VOTING AGREEMENT
================================================================================
VOTING AGREEMENT
by and
among
JO ACQUISITION CORP.
and
THE SHAREHOLDERS NAMED HEREIN
dated as of October 28, 2004
================================================================================
VOTING AGREEMENT
Voting Agreement, dated as of October 28, 2004 (the
"Agreement"), by and among Helen P. Johnson-Leipold, Imogene P. Johnson, H. Fisk
Johnson, S. Curtis Johnson, Winifred J. Marquart, JWA Consolidated, Inc., a
Delaware corporation, Samuel C. Johnson 1988 Trust Number One u/a September 14,
1988 (the "Trust") and Johnson Bank, a Wisconsin state bank (collectively,
including the Trust, the "Shareholders," and each individually, a
"Shareholder"), and JO Acquisition Corp., a Wisconsin corporation ("Purchaser").
WHEREAS, concurrently with the execution of this Agreement,
Johnson Outdoors Inc., a Wisconsin corporation (the "Company") and Purchaser are
entering into an Agreement and Plan of Merger (the "Merger Agreement") (terms
used but not defined herein shall have the meanings set forth in the Merger
Agreement) pursuant to which Purchaser will be merged with and into the Company
(the "Merger");
WHEREAS, as of the date hereof, each Shareholder beneficially
owns (as such term is defined in Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder (the "Exchange Act")) the number of shares of Class A Common Stock,
par value $0.05 per share, of the Company ("Class A Common Stock") and Class B
Common Stock, par value $0.05 per share, of the Company ("Class B Common Stock"
and, together with the Class A Common Stock, "Company Common Stock") set forth
opposite such Shareholder's name on Schedule I hereto (such shares of Company
Common Stock, together with any other shares of Company Common Stock, sole or
shared voting power over which is acquired by such Shareholder during the period
from and including the date hereof through and including the date on which this
Agreement is terminated in accordance with its terms, collectively, the "Subject
Common Shares");
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Purchaser has required that the Shareholders enter into this
Agreement whereby each Shareholder commits to cause the Subject Common Shares
over which such Shareholder has sole voting power, and to use its best efforts
to cause the Subject Common Shares over which such Shareholder has joint voting
power, to be voted in favor of the Merger on the terms and subject to the
conditions of this Agreement;
WHEREAS, as a further condition to the Merger Agreement, the
Shareholders and Purchaser are entering into a Contribution Agreement, dated as
of the date hereof in substantially the form attached as Appendix II to the
Merger Agreement (the "Contribution Agreement").
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements contained in
this Agreement and intending to be legally bound, the parties agree as follows:
ARTICLE I
VOTING MATTERS
Section 1.1 Agreement to Vote. Each Shareholder hereby agrees
that, from and after the date hereof until the termination of this Agreement, at
any duly called meeting of the shareholders of the Company, and in any action by
written consent of the shareholders of the Company, such Shareholder shall, if a
meeting is held, appear at the meeting and any adjournment or postponement
thereof, in person or by proxy, or otherwise cause the Subject Common Shares
over which such Shareholder has sole voting power (and use its best efforts to
cause the Subject Common Shares over which such Shareholder has joint voting
power) to be counted as present thereat for purposes of establishing a quorum,
and such Shareholder shall vote or consent the Subject Common Shares over which
such Shareholder has sole voting power (and cause to be voted or consented the
Subject Common Shares over which such Shareholder has joint voting power), in
person or by proxy, (a) in favor of approving the Merger Agreement, the Merger
and each of the other transactions and other matters specifically contemplated
by the Merger Agreement, (b) in favor of any proposal to adjourn any such
meeting if necessary to permit further solicitation of proxies in the event
there are not sufficient votes at the time of such meeting to approve the Merger
Agreement, (c) against any action or agreement submitted for approval of the
shareholders of the Company that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or of such Shareholder under this Agreement and (d)
except as otherwise agreed in writing by the Company, against any action,
agreement, transaction or proposal submitted for approval of the shareholders of
the Company that would reasonably be expected to result in any of the conditions
to the Company's obligations under the Merger Agreement not being fulfilled or
that is intended, or would reasonably be expected, to prevent, impede, interfere
with, delay or adversely affect the transactions contemplated by the Merger
Agreement. Any vote by such Shareholder that is not in accordance with this
Section 1.1 shall be considered null and void. Such Shareholder shall not enter
into any agreement or understanding with any person or entity prior to the
termination of this Agreement to vote or give instructions in a manner
inconsistent with clauses (a), (b) or (c) of this Section 1.1.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each of the Shareholders hereby severally represents and
warrants to the Purchaser as follows with respect to itself only:
Section 2.1 Corporate Existence; Authorization. If such
Shareholder is a business organization, such Shareholder is duly organized,
validly existing and in good standing (with respect to jurisdictions that
recognize such concept) under the Laws of the jurisdiction of its organization
or formation and has all requisite power and authority to enter into this
Agreement, to carry out its obligations hereunder and to consummate the
transactions contemplated by this Agreement. If such Shareholder is a natural
person, such Shareholder has the capacity to enter into this Agreement, to carry
out its obligations hereunder and to consummate the transactions contemplated by
this Agreement. This Agreement has been duly and validly executed and delivered
by such Shareholder and, assuming due execution and delivery by each of the
other parties hereto, this Agreement constitutes a legal, valid and binding
obligation of such Shareholder enforceable against such Shareholder in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other similar Laws of general applicability relating to or affecting creditors'
rights, and to general equitable principles.
Section 2.2 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by such
Shareholder does not, and the performance of this Agreement by such Shareholder
will not, (i) conflict with or violate the articles of incorporation, limited
liability company agreement or equivalent organizational documents, as the case
may be, of such Shareholder, (ii) conflict with or violate any Laws applicable
to such Shareholder or by which such Shareholder or any of its properties is
bound or (iii) result in any breach of or constitute a default (or event that
with notice or lapse of time or both would become a default) under, or impair
such Shareholder's rights or alter the rights or obligations of any third party
under, or give to others any rights of termination or acceleration of, or result
in the creation of an Encumbrance on any Subject Common Shares (other than
pursuant to this Agreement) or other properties or assets of such Shareholder
pursuant to, any note, bond, mortgage, indenture, agreement, lease, license,
permit, franchise, concession or other instrument or obligation to which such
Shareholder is a party or by which it is bound (including any trust agreement,
voting agreement, shareholders' agreement or voting trust) or (iv) violate any
order, writ, injunction, judgment or decree of any Governmental Entity
applicable to such Shareholder, except, in the case of clauses (ii), (iii) or
(iv), for such conflicts, violations, breaches, defaults, impairments,
alterations, terminations, accelerations or Encumbrances or rights that would
not prevent or materially delay the ability of such Shareholder to carry out its
obligations under, and to consummate the transactions contemplated by, this
Agreement.
(b) The execution and delivery of this Agreement by such
Shareholder does not, and the performance of this Agreement by such Shareholder
shall not, require any consent, approval, authorization or permit of, or filing
with, or notification to, any Governmental Entity, except where the failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not prevent or materially delay the ability of
such Shareholder to carry out its obligations under, and to consummate the
transactions contemplated by, this Agreement.
Section 2.3 Ownership of Shares. Such Shareholder is the
record or beneficial owner of, and has good title to, the Subject Common Shares
set forth opposite its name on Schedule I. Such Shareholder, together with its
affiliates, if any, or another Shareholder, has sole or shared voting power, and
sole or shared power of disposition, with respect to all of such Subject Common
Shares, and such Subject Common Shares are free and clear of all Liens, other
than as set forth in Section 4.1(b) or any Liens in favor of one or more other
Shareholders or created by this Agreement. Such Shareholder has not appointed or
granted any proxy inconsistent with this Agreement, which appointment or grant
is still effective, with respect to the Subject Common Shares, it being
understood and agreed that any proxy granted by a Shareholder to one or more of
the other Shareholders shall not be deemed to be inconsistent with this
Agreement unless it would result in the voting of Subject Common Shares in a
manner inconsistent with Section 1.1 of this Agreement or prevent the voting in
accordance with Section 1.1 of this Agreement of Subject Common Shares.
Section 2.4 Absence of Litigation. As of the date hereof,
there is no suit, action, investigation or proceeding pending or, to the
knowledge of such Shareholder, threatened against such Shareholder before or by
any Governmental Entity that could impair the ability of Shareholder to perform
its obligations hereunder or to consummate the transactions contemplated hereby
on a timely basis.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to each Shareholder as
follows:
Section 3.1 Corporate Authorization. Purchaser is duly
organized and validly existing under the Laws of the State of Wisconsin and has
all requisite power and authority to enter into and perform all of its
obligations under this Agreement and to consummate the transactions contemplated
by this Agreement. The execution and delivery of this Agreement by Purchaser,
the performance by Purchaser of its obligations hereunder and the consummation
by Purchaser of the transactions contemplated hereby have been duly authorized
by all requisite action on the part of Purchaser. This Agreement has been duly
executed and delivered by Purchaser and, assuming the due and valid
authorization, execution and delivery hereof by the other parties hereto, this
Agreement constitutes the valid and binding obligation of Purchaser, enforceable
against Purchaser in accordance with its terms, except as enforceability may be
limited by bankruptcy and other similar Laws affecting the rights of creditors
generally and general principles of equity.
Section 3.2 No Conflict; Required Filings and Consents. The
execution and delivery of this Agreement by Purchaser does not, and the
performance of this Agreement by Purchaser will not, (a) conflict with or
violate Purchaser's articles of incorporation or bylaws, (b) conflict with or
violate any Laws applicable to Purchaser or by which Purchaser or any of its
properties is bound, (c) result in any breach of or constitute a default (or
event that with notice or lapse of time or both would become a default) under,
or impair Purchaser's rights or alter the rights or obligations of any third
party under, or give to others any rights of termination or acceleration of, or
result in the creation of an Encumbrance on any of the properties or assets of
Purchaser pursuant to, any note, bond, mortgage, indenture, agreement, lease,
license, permit, franchise, concession or other instrument or obligation to
which Purchaser is a party or by which it is bound or (d) violate any order,
writ, injunction, judgment or decree of any Governmental Entity, except, in the
case of clauses (b), (c) and (d), for such conflicts, violations, breaches,
defaults, impairments, alterations, terminations, accelerations or Encumbrances
or rights that would not prevent or materially delay the ability of Purchaser to
carry out its obligations under, and to consummate the transactions contemplated
by, this Agreement. Other than filings required under the Exchange Act, the
execution and delivery of this Agreement by Purchaser and the performance of
this Agreement by Purchaser do not require any filing with, permit,
authorization, notification, consent or approval of, any Governmental Entity.
ARTICLE IV
COVENANTS OF THE SHAREHOLDERS
Each Shareholder severally, but not jointly and severally,
hereby covenants and agrees as follows with respect to itself only:
Section 4.1 Restriction on Transfer of Shares.
(a) Such Shareholder shall not, directly or indirectly: (i)
offer for sale, sell (including short sales), transfer, tender, pledge,
encumber, assign or otherwise dispose of (including by gift) or enter into any
contract, option, derivative, hedging or other arrangement or understanding
(including any profit-sharing arrangement) with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of any or all of the Subject Common Shares or any interest therein
(any of the foregoing, a "Transfer"), except to any affiliate of such
Shareholder or to another Shareholder, provided in the case of a Transfer to an
affiliate that such affiliate agrees in writing to be bound by the terms of this
Agreement, or Transfers which occur by operation of law, with the Company's
prior written consent or to Purchaser immediately prior to the Effective Time in
accordance with the Contribution Agreement, (ii) grant any proxies or powers of
attorney (other than to an affiliate of such Shareholder that agrees in writing
to be bound by the terms of this Agreement or to another Shareholder or other
Shareholders) with respect to the Subject Common Shares, deposit any of the
Subject Common Shares into a voting trust or enter into any other voting
arrangement (other than with an affiliate of such Shareholder that agrees in
writing to be bound by the terms of this Agreement or with another Shareholder
or other Shareholders) or permit to exist any other Lien of any nature
whatsoever with respect to the Subject Common Shares (other than such other
Liens created by or arising under this Agreement or existing by operation of
law), (iii) exercise the right to convert any shares of Class B Common Stock
into shares of Class A Common Stock or (iv) commit or agree to take any of the
foregoing actions.
(b) Notwithstanding anything to the contrary set forth herein,
transfers of an aggregate of up to 450,000 shares of Class A Common Stock held
of record by the Trust in satisfaction of pecuniary bequests existing on the
date hereof shall not be a breach of this Agreement or deemed to be transfers
prohibited hereby, provided that contemporaneously with any such transfer, an
amount in cash equal to the product of the number of shares of Class A Common
Stock so transferred multiplied by the Merger Consideration is contributed to
Purchaser.
Section 4.2 Contribution Agreement. Such Shareholder agrees to
comply with the terms and conditions of the Contribution Agreement.
Section 4.3 Certain Events. Such Shareholder agrees that this
Agreement and the obligations hereunder shall attach to the Subject Common
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of the Subject Common Shares shall pass, whether by
operation of law or otherwise, including without limitation the Shareholder's
administrators, successors or receivers.
ARTICLE V
MISCELLANEOUS
Section 5.1 Termination. This Agreement shall automatically
terminate, and none of Purchaser or any Shareholder shall have any rights or
obligations hereunder and this Agreement shall become null and void and have no
further effect, upon the earliest to occur of (a) the mutual consent of all of
the parties hereto, (b) the Effective Time and (c) the date of termination of
the Merger Agreement in accordance with its terms.
Section 5.2 Non-Survival of Representations and Warranties.
None of the representations and warranties in this Agreement shall survive the
termination of this Agreement. This Section 5.2 shall not limit any covenant or
agreement of the parties contained herein which by its terms contemplates
performance after the termination of this Agreement.
Section 5.3 Notices. Any notices or other communications
required or permitted under, or otherwise in connection with this Agreement
shall be in writing and shall be deemed to have been duly given when delivered
in person or on receipt after dispatch by registered or certified mail, postage
prepaid, addressed, or on receipt if transmitted by national overnight courier,
in each case as follows:
If to Purchaser or any Shareholder:
JO Acquisition Corp.
555 Main Street, Suite 500
Racine, WI 53403-4616
Attn: Helen P. Johnson-Leipold and Roy T. George
Tel: (262) 260-2000
Fax: (262) 260-5339
With a copy to:
McDermott Will & Emery LLP
28 State Street
Boston, MA 02109
Attn: John B. Steele and Patricia A. Johansen
Tel: (617) 535-4000
Fax: (617) 535-3800
Section 5.4 Appraisal Rights. To the extent permitted by
applicable Laws, each Shareholder hereby waives any rights of appraisal or
rights to dissent from the Merger that it may have under applicable Laws.
Section 5.5 Expenses. All costs and expenses (including legal
fees) incurred in connection with this Agreement shall be paid by the party
incurring such expenses.
Section 5.6 Headings. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 5.7 Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
Law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are fulfilled to the
extent possible.
Section 5.8 Entire Agreement. This Agreement constitutes the
entire agreement, and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
Section 5.9 Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto, in whole or in part (whether by operation of law or otherwise),
without the prior written consent of the other parties, and any attempt to make
any such assignment without such consent shall be null and void.
Section 5.10 Binding Effect. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto and their respective
successors and assigns.
Section 5.11 Mutual Drafting. This Agreement shall be
construed without regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing this Agreement to be
drafted.
Section 5.12 Governing Law; Consent to Jurisdiction; Waiver of
Trial by Jury.
(a) This Agreement shall be governed by and construed in
accordance with the Laws of the State of Wisconsin, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
(b) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive
jurisdiction of the courts of the State of Wisconsin in any action or proceeding
arising out of or relating to this Agreement or the agreements delivered in
connection herewith or the transactions contemplated hereby or thereby or for
recognition or enforcement of any judgment relating thereto, and each of the
parties hereby irrevocably and unconditionally (i) agrees not to commence any
such action or proceeding except in such court, (ii) agrees that any claim in
respect of any such action or proceeding may be heard and determined in such
court, (iii) waives, to the fullest extent it may legally and effectively do so,
any objection which it may now or hereafter have to the laying of venue of any
such action or proceeding in such court, and (iv) waives, to the fullest extent
permitted by Laws, the defense of an inconvenient forum to the maintenance of
such action or proceeding in such court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by Laws. Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 5.3. Nothing in this
Agreement shall affect the right of any party to this Agreement to serve process
in any other manner permitted by Laws.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT MAY INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE
AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) IT UNDERSTANDS
AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (II) IT MAKES SUCH WAIVERS
VOLUNTARILY, AND (III) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
5.12(c).
Section 5.13 Amendment: Waiver. No provision of this Agreement
may be waived unless in writing signed by all of the parties to this Agreement,
and the waiver of any one provision of this Agreement shall not be deemed to be
a waiver of any other provision. This Agreement may be amended, supplemented or
otherwise modified only by a written agreement executed by all of the parties to
this Agreement.
Section 5.14 Stop Transfer Order. In furtherance of this
Agreement, each Shareholder shall and does hereby authorize and request that the
Company instruct its transfer agent to enter a stop transfer order, consistent
with the terms of this Agreement and subject to such transfers as may be
permitted by the express terms hereof, with respect to all of the Subject Common
Shares beneficially owned by such Shareholder.
Section 5.15 Further Assurances. From time to time, at the
other party's request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further action
as may be reasonably necessary to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
Section 5.16 Fiduciary Duties. Notwithstanding anything in
this Agreement to the contrary set forth herein, none of the covenants and
agreements contained in this Agreement shall prevent any Shareholder from
serving as an officer of the Company or a member of the Company's Board of
Directors, or from taking any action, subject to the applicable provisions of
the Merger Agreement, while acting in such capacity as an officer or a director
of the Company.
Section 5.17 Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any of the provisions of this
Agreement were not to be performed in accordance with the terms hereof and that
the parties shall be entitled to seek specific performance of the terms hereof
in addition to any other remedies at law or in equity.
Section 5.18 Counterparts. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
[Signature page follows.]
IN WITNESS WHEREOF, each of the parties hereto has executed
this Agreement as of the date first above written.
/s/ Helen P. Johnson-Leipold
---------------------------------------------
Helen P. Johnson-Leipold
/s/ Imogene P. Johnson
--------------------------------------------
Imogene P. Johnson
/s/ H. Fisk Johnson
---------------------------------------------
H. Fisk Johnson
/s/ S. Curtis Johnson
---------------------------------------------
S. Curtis Johnson
/s/ Winifred J. Marquart
--------------------------------------------
Winifred J. Marquart
JWA CONSOLIDATED, INC.
By: /s/ Imogene P. Johnson
----------------------------------------
Name: Imogene P. Johnson
Its: President and Director
SAMUEL C. JOHNSON 1988 TRUST NUMBER ONE U/A
SEPTEMBER 14, 1988
By: /s/ Imogene P. Johnson
----------------------------------------
Name: Imogene P. Johnson
Its: Co-Trustee
JOHNSON BANK
By: /s/ Brian Lucareli
-----------------------------------------
Name: Brian Lucareli
Its: Senior Vice President
JO ACQUISITION CORP.
By: /s/ Helen P. Johnson-Leipold
----------------------------------------
Name: Helen P. Johnson-Leipold
Its: President and Chief Executive Officer
SCHEDULE I
SUBJECT COMMON SHARES
SHAREHOLDER SUBJECT COMMON SHARES
----------- ---------------------
Sole Voting/ Shared Voting/
Dispositive Power Dispositive Power1
----------------- -----------------
Class A Class B Class A Class B
Common Stock2 Common Stock Common Stock Common Stock
------------ ------------ ------------ ------------
Helen P. Johnson-Leipold 323,444 0 340,786 1,066,722
Imogene P. Johnson 32,288 0 2,354,529 1,062,330
H. Fisk Johnson 387,596 0 145,679 1,070,114
S. Curtis Johnson 29,009 0 150,886 1,047,330
Winifred J. Marquart 20 0 68,200 19,008
JWA Consolidated, Inc. 114,464 0 0 1,037,330
Samuel C. Johnson 1988 Trust
Number One u/a September 14,
1988 0 0 2,354,529 1,062,330
Johnson Bank 71,724 47,780 2,747,964 76,184
--------
1 Represents an aggregate total of 2,777,964 shares of Class A Common Stock
and 1,123,514 shares of Class B Common Stock over which one or more of the
Shareholders together hold 100% of the voting and dispositive power.
2 Excludes options to acquire shares held of record by Samuel C. Johnson 1988
Trust Number One u/a September 14, 1988.
EXHIBIT 99.12
JOINT FILING AGREEMENT
The undersigned hereby agree that the statement on this Schedule 13D,
dated November 2, 2004, with respect to Class A Common Stock of Johnson Outdoors
Inc., a Wisconsin corporation, is, and any amendments thereto signed by each of
the undersigned shall be, filed on behalf of each of us pursuant to and in
accordance with the provisions of Rule 13d-1(k)(2) promulgated under the
Securities Exchange Act of 1934, as amended. The undersigned acknowledge that
each shall be responsible for the timely filing of such amendments, and for the
completeness and accuracy of the information concerning him or her contained
herein, but shall not be responsible for the completeness and accuracy of the
information concerning the other person, except to the extent that he or she
knows or has reason to believe that such information is inaccurate.
This Joint Filing Agreement may be executed in counterparts, each of
which shall for all purposes be deemed to be an original, but all of which shall
constitute one and the same instrument.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned have each executed this Joint
Filing Agreement as of this 2nd day of November, 2004.
/s/ Helen P. Johnson-Leipold
---------------------------------------------
Helen P. Johnson-Leipold
/s/ Imogene P. Johnson
---------------------------------------------
Imogene P. Johnson
/s/ H. Fisk Johnson
---------------------------------------------
H. Fisk Johnson
/s/ S. Curtis Johnson
---------------------------------------------
S. Curtis Johnson
/s/ Winifred J. Marquart
---------------------------------------------
Winifred J. Marquart
Samuel C. Johnson 1988 Trust Number One u/a
September 14, 1988
By: /s/ Imogene P. Johnson
---------------------------------------
Name: Imogene P. Johnson
Title: Trustee
JWA Consolidated, Inc.
By: /s/ Imogene P. Johnson
---------------------------------------
Name: Imogene P. Johnson
Title: President and Director
Johnson Bank
By: /s/ Brian Lucareli
---------------------------------------
Name: Brian Lucareli
Title: Senior Vice President
EXHIBIT 99.13
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature
appears below hereby constitutes and appoints Helen P. Johnson-Leipold his or
her true and lawful attorney-in-fact, with full power of substitution, to sign
any and all instruments, certificates and documents that may be necessary,
desirable or appropriate to be executed on behalf of himself, pursuant to
Sections 13 or 16 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and any and all regulations promulgated thereunder, and to file
the same, with all exhibits thereto, and any other documents in connection
therewith, with the Securities and Exchange Commission, and with any other
entity when and if such is mandated by the Exchange Act or by the By-Laws of the
National Association of Securities Dealers, Inc., granting unto said
attorney-in-fact full power and authority to do and perform each and every act
and thing necessary, desirable or appropriate, fully to all intents and purposes
as he might or could do in person, thereby ratifying and confirming all that
said attorney-in-fact, or her substitutes, may lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed as of this
2nd day of November, 2004.
/s/ Imogene P. Johnson
---------------------------------------------
Imogene P. Johnson
/s/ H. Fisk Johnson
---------------------------------------------
H. Fisk Johnson
/s/ S. Curtis Johnson
---------------------------------------------
S. Curtis Johnson
/s/ Winifred J. Marquart
---------------------------------------------
Winifred J. Marquart
Samuel C. Johnson 1988 Trust Number One u/a
September 14, 1988
By: /s/ Imogene P. Johnson
---------------------------------------
Name: Imogene P. Johnson
Title: Co-Trustee
JWA Consolidated, Inc.
By: /s/ Imogene P. Johnson
---------------------------------------
Name: Imogene P. Johnson
Title: President and Director
Johnson Bank
By: /s/ Brian Lucareli
---------------------------------------
Name: Brian Lucareli
Title: Senior Vice President