EXHIBIT 10.26
UNANIMOUS SHAREHOLDERS AGREEMENT
THIS UNANIMOUS SHAREHOLDERS AGREEMENT is made as of the 20th day of
April, 2005
BETWEEN
BROWN SHOE INTERNATIONAL CORP.
(hereinafter called the "Shareholder")
AND
MARCEL PION
(hereinafter called the "Director")
WHEREAS Brown Shoe Company of Canada Ltd (the "Corporation") is a
corporation to which the Canada Business Corporations Act (the "Act") applies;
and
WHEREAS the Shareholder is the registered holder and beneficial owner
of all the issued and outstanding shares of the Corporation; and
WHEREAS the Director has agreed to serve as a director of the
Corporation at the request of the Shareholder and in consideration of the
execution and delivery of the within agreement by the Shareholder; and
WHEREAS the Shareholder, acting under the authority contained in the
Act, wishes to enter into this Agreement as a unanimous shareholders agreement
for the purposes of, to the fullest extent permitted by the Act, restricting the
discretion and powers of the board of directors of the Corporation to manage or
supervise the management of the business and affairs of the Corporation and,
concurrently, providing for the assumption by the Shareholder of the powers of
such board of directors and thereby relieving the board of directors of their
duties and liabilities to such extent;
IN CONSIDERATION of the premises and other good and valuable
consideration, the parties hereto agree as follows:
1. During the period commencing from the date hereof and continuing until
this Agreement is terminated as provided in Section 5:
(a) the rights, powers and duties of the board of directors of the
Corporation to manage or supervise the management of the
business and affairs of the
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Corporation, whether such rights, powers and duties arise
under the Act, the articles or the by-laws of the Corporation,
or otherwise, are hereby restricted to the fullest extent
permitted under the Act; and
(b) the Shareholder hereby assumes and shall have, enjoy, exercise
and perform all such rights, powers and duties of the board of
directors of the Corporation to manage or supervise the
management of the business and affairs of the Corporation.
2. In the exercise of the rights, powers and duties assumed and
transferred hereunder, the Shareholder shall be subject to the same
obligations and liabilities to which the board of directors of the
Corporation would otherwise have been subject if this Agreement had not
been made and the Director is hereby wholly relieved of his powers,
duties and liabilities as a director of the Corporation to the extent
the Shareholder is subject thereto.
3. The rights, powers and duties assumed and transferred hereby to the
Shareholder shall be exercised or performed, to the extent appropriate,
by instrument in writing executed by the Shareholder.
4. Notwithstanding that the rights, powers and duties of the board of
directors of the Corporation to manage or supervise the management of
the business and affairs of the Corporation are hereby vested in the
Shareholder, the Director, so long as he shall continue as a director
of the Corporation, may act in an advisory capacity to the Corporation,
and in consideration thereof and of this Agreement, the Shareholder
hereby agrees to indemnify and save harmless the Director, his heirs
and legal representatives, respectively, from and against all claims
and liabilities of whatsoever nature arising directly or indirectly by
reason of any breach or alleged breach by the Shareholder of the
rights, powers, duties and liabilities expressed herein to be assumed
by the Shareholder, including without limitation, all amounts required
to be paid to settle any action or satisfy any judgment in respect of
any civil, criminal or administrative action or proceeding to which the
Director is made a party (or any such proceeding which might be
threatened) by reason of his being or having been a director of the
Corporation.
5. This Agreement shall be effective as of the date hereof and shall
continue in full force and effect until terminated upon the first to
occur of the following:
(a) written notice to terminate being given by either party to the
other;
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(b) the Shareholder transferring any of its shares of the
Corporation; and
(c) the issue of any shares of the Corporation to any person other
than the Shareholder;
provided that such termination shall not affect any obligation of any
party hereto arising prior to the date of termination, including any
obligation to indemnify the Director by reason of any matter which has
arisen or any circumstances which have occurred prior to the
termination, which obligation shall survive such termination and shall
continue in full force and effect without limitation.
6. Notwithstanding anything to the contrary contained herein, the Director
shall be deemed to have resigned as a director of the Corporation
simultaneously with the termination of this Agreement as provided in
Section 5.
7. Each of the parties will execute such further and other assurances,
instruments and documents and do all such other things and acts which
shall be necessary or proper for carrying out the purpose and intent of
this Agreement.
8. Any notice or other writing required or permitted to be given to any
party hereunder (hereinafter called a "Notice") shall be in writing and
shall be personally delivered to such party as follows:
(a) if to the Shareholder:
Brown Shoe International Corp.
c/o Brown Shoe Company, Inc.
8300 Maryland Avenue
St. Louis, MO 63105-3693
Attention: General Counsel
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(b) if to the Director:
Marcel Pion
c/o Brown Shoe Company of Canada Ltd
3480, boul Industriel
Laval, QC H7L 4R9
or to such other address as the party entitled to such Notice shall
have communicated in writing to the other party.
9. This Agreement shall be deemed to have been entered into and to be
wholly performed within the Province of Ontario and shall be governed
by and construed in accordance with the laws of such province and the
laws of Canada applicable therein. Each of the parties hereby attorns
to the jurisdiction of the courts of the Province of Ontario in respect
of all matters arising directly or indirectly from this Agreement.
10. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, and all of which together will
constitute one and the same document.
11. Il est de la volonte expresse des parties que le present contrat soient
rediges en langue anglaise. It is the express wish of the parties that
this Agreement be written in the English language.
12. This Agreement may be executed in counterparts, each of which shall
constitute an original and all of which taken together shall constitute
one and the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
SIGNED, SEALED AND DELIVERED ) BROWN SHOE INTERNATIONAL CORP.
in the presence of )
)
) By:
) ---------------------------------
) Name: Richard C. Schumacher
) Title: Vice President
)
)
) /s/ Marcel Pion
) ------------------------------------
) Marcel Pion
TO: BROWN SHOE COMPANY OF CANADA LTD/CHAUSSURES BROWN DU CANADA LTEE
The undersigned hereby consents to act as a director of Brown Shoe
Company of Canada Ltd/Chaussures Brown du Canada Ltee (the "Corporation"), such
consent to continue in effect unless revoked by an instrument in writing
delivered to the Corporation.
The undersigned hereby certifies that the undersigned is a resident
Canadian within the meaning of the Canada Business Corporations Act and agrees
to advise the Corporation forthwith upon ceasing to be a resident Canadian.
Dated the 20th day of April, 2005.
/s/ Marcel Pion
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Marcel Pion