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EXHIBIT 10.5.6
EXHIBIT F-2 TO NOTE AND WARRANT PURCHASE AGREEMENT
(Form of Registration Rights Agreement)
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
September 23, 1998, is made by and between EASYRIDERS, INC., a Delaware
corporation (together with its successors, the "Company"), and Nomura Holding
America Inc., a Delaware corporation (together with its successors and assigns,
"Nomura").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Note and Warrant Purchase Agreement
dated as of even date herewith (the "Note Agreement"), Paisano Publications,
Inc., a California corporation, has agreed to issue and sell to Nomura the Notes
(capitalized terms used but not otherwise defined herein shall have the
respective meanings given to such terms in Article I hereof) and the Company has
agreed to issue and sell to Nomura the Warrants to purchase shares of its Common
Stock;
WHEREAS, it is a condition precedent to the purchase of such securities
by Nomura that the Company and Nomura enter into this Agreement; and
WHEREAS, the Company and Nomura deem it to be in their respective best
interests to enter into this Agreement to provide certain rights to Nomura in
connection with the Warrants;
NOW, THEREFORE, to implement the foregoing and in consideration of the
mutual terms, conditions and covenants contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. Defined Terms. Capitalized terms used but not otherwise
defined herein shall have the respective meanings given to such terms in the
Note Agreement. The following terms shall have the following meanings:
"Common Stock" means the Company's Common Stock, no par value per share.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar federal statute then in effect.
"Majority Holders" means on any date the holders of a majority of the
Registrable Securities on such date.
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"managing underwriter" means, with respect to any Underwritten Offering,
the investment banker (or investment bankers) selected by the Company that shall
manage the offering.
"Public Offering" means any primary or secondary public offering of Common
Stock pursuant to an effective registration statement under the Securities Act,
other than pursuant to a registration statement on Form S-4 or Form S-8 or any
successor or similar form.
"Registrable Securities" shall mean (a) all shares of Common Stock issued
or issuable upon the exercise of any Warrant and (b) any securities issued or
issuable by the Company with respect to shares of Common Stock referred to in
the foregoing clause (a) by way of a stock dividend or stock split or in
connection with a combination or subdivision of shares, reclassification,
merger, consolidation or other reorganization of the Company; provided, however,
that as to any particular Registrable Securities that have been issued, such
securities shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of under such registration statement, (ii) they shall have been distributed to
the public pursuant to Rule 144, (iii) they shall have been otherwise
transferred or disposed of, and new certificates therefor not bearing a legend
restricting further transfer shall have been delivered by the Company, and
subsequent transfer or disposition of them shall not require their registration
or qualification under the Securities Act or any similar state law then in
force, or (iv) they shall have ceased to be outstanding. For the purposes of
Article II hereof, the holder of any Warrant shall be deemed to be a holder of
the Registrable Securities issuable upon exercise, exchange or conversion of
such Warrant, and such Registrable Securities shall be deemed to be issued and
outstanding.
"Registration Expenses" shall mean any and all expenses incident to the
Company's performance of or compliance with Article II hereof, including,
without limitation, all registration, qualification and filing fees, printing
expenses, escrow fees, listing fees, fees and disbursements of legal counsel for
the Company, reasonable fees and disbursements of one legal counsel for the
holders of Registrable Securities, Blue Sky fees and expenses (including the
reasonable fees and disbursements of underwriters' counsel in connection with
Blue Sky qualifications and filings), fees and expenses of the transfer agent
and registrar for the Registrable Securities, and the fees and expenses of any
special audits and/or "cold comfort" letters required by or incident to such
performance and compliance, but excluding underwriting discounts and commissions
and applicable transfer and documentary stamp taxes, if any, which shall be
borne by the seller of the securities in all cases.
"Rule 144" means Rule 144 under the Securities Act, as such rule may be
amended from time to time.
"SEC" means the United States Securities and Exchange Commission, and any
successor agency or governmental body.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute then in effect.
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"Stock" means any capital stock of the Company or other securities
convertible into or exchangeable therefor, including warrants, options or other
rights to acquire capital stock or any interest therein.
"Underwritten Offering" means any public offering of securities
distributed by means of a firm commitment underwriting.
Section 1.2. Other Definitional Provisions. The meanings given to terms
defined herein shall be equally applicable to both the singular and plural forms
of such terms, and words of the masculine gender shall mean and include
correlative words of the feminine and neuter genders. The words "hereof",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision.
References herein to any Section or subsection are to the corresponding Section
or subsection to this Agreement unless otherwise specified. Any headings
preceding the texts of the several Sections and subsections of this Agreement
are solely for convenience of reference and shall not constitute a part of this
Agreement nor in any way define, limit or extend the scope or otherwise affect
the meaning thereof.
ARTICLE II.
REGISTRATION RIGHTS
2.1. Piggyback Registration Rights. (a) If the Company at any time
proposes to register under the Securities Act any shares of its Common Stock now
or hereafter authorized, other than a registration on Form S-4 or S-8 or any
successor form, whether for sale for its own account or for the account of any
selling stockholder, on a form and in a manner that would permit registration of
Registrable Securities for sale to the public under the Securities Act, it will
give written notice to all the holders of Registrable Securities promptly, and
in any event no later than 20 days (10 days if the registration is a Form S-3)
before the initial filing with the SEC of a registration statement, of its
intention to do so, describing such securities and specifying the form and
manner and the other relevant facts involved in such proposed registration
(including, without limitation, (i) whether or not such registration will be in
connection with an underwritten offering of securities and, if so, the identity
of the managing underwriter and whether such offering will be pursuant to a
"best efforts" or "firm commitment" underwriting, (ii) the price at which such
securities are reasonably expected to be sold to the public, and (iii) the
amount of the underwriting discount reasonably expected to be incurred in
connection therewith). Upon the written request of any such holder delivered to
the Company within 10 days after the receipt of any such notice (which request
shall specify the Registrable Securities intended to be disposed of by such
holder and the intended method of disposition thereof), the Company will
(subject to the provisions of Section 2.1(c) hereof) include in such
registration all of the Registrable Securities that the Company has been so
requested to register; provided, however, that if, at any time after giving such
written notice of its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to proceed with
such registration, the Company may at its election give written notice of such
determination to each holder of Registrable Securities who made a request as
hereinabove provided and thereupon the Company shall be
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relieved of its registration obligations (but not from its obligation to pay
Registration Expenses in connection therewith).
(b) The Registration Expenses incurred in connection with each
registration of Registrable Securities requested pursuant to this Section 2.1
shall be paid by the Company.
(c) If a registration pursuant to this Section 2.1 involves an
Underwritten Offering and the managing underwriter advises the Company that, in
its opinion, the number of securities proposed to be included in such offering
exceeds the number of securities which can be sold therein without adversely
affecting the marketability of the offering, then the Company will promptly so
advise each holder of Registrable Securities that has requested registration,
and will include in such registration: first, authorized but unissued or
treasury shares of Common Stock which the Company desires to include in such
registration; and second, Registrable Securities requested to be included
therein and other outstanding shares of Common Stock requested to be included in
such registration ("Other Securities"), allocated pro rata among the holders of
Registrable Securities and Other Securities based on the number of Registrable
Securities with respect to which each such holder has requested registration, in
each case until the aggregate number of securities included in such registration
is equal to the number thereof that, in the opinion of such managing
underwriter, can be sold without adversely affecting the marketability thereof.
2.2. Registration Procedures. (a) Whenever any holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to Section 2.1 hereof (subject to the applicable terms and conditions contained
therein), the Company will use its best efforts to effect the registration of
such securities under the Securities Act and the sale thereof in accordance with
the intended method of disposition thereof, and in connection therewith the
Company will, as expeditiously as possible:
(i) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and cause such registration
statement to become and remain effective until the earlier of (A) six
months or, if such registration statement relates to an Underwritten
Offering, such longer period as in the opinion of counsel for the
underwriters a prospectus is required by law to be delivered in connection
with sales of Registrable Securities by an underwriter or dealer, or (B)
such shorter period as is required to complete the distribution of all of
the securities covered by such registration statement (but in any event
not before the expiration of any longer period required under the
Securities Act);
(ii) prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement;
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(iii) prior to filing with the SEC any such registration statement,
prospectus, or amendment or supplement thereto, furnish copies thereof to
counsel for the sellers of Registrable Securities under such registration
statement, which documents will be subject to review by such counsel;
(iv) furnish to each seller of Registrable Securities covered by the
registration statement and to each underwriter, if any, of such
Registrable Securities, such number of copies of such registration
statement, each amendment and supplement thereto, the prospectus included
in such registration statement (including each preliminary prospectus) and
such other documents as such seller may reasonably request in order to
facilitate the public sale or other disposition of the Registrable
Securities owned by such seller;
(v) use its best efforts to register or qualify such Registrable
Securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as each seller shall
reasonably request, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition of the Registrable Securities owned by such seller in such
jurisdictions, except that the Company shall not be required (A) to
qualify to do business as a foreign corporation in any jurisdiction where,
but for the requirements of this Section 2.2(a), it is not then so
qualified, (B) to subject itself to taxation in any such jurisdiction, or
(C) to take any action which would subject it to service of process in any
such jurisdiction where it is not then so subject;
(vi) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered or qualified with
or approved by such other governmental agencies or authorities (including,
without limitation, state securities commissions) as may be necessary to
enable the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(vii) immediately notify each seller of Registrable Securities
covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, if
the Company becomes aware that the prospectus included in such
registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing, and, at the request of any such
seller, deliver a reasonable number of copies of an amended or
supplemental prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the
circumstances then existing;
(viii) cause all Registrable Securities covered by the registration
statement to be listed on each securities exchange on which similar
securities issued by the Company are then listed;
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(ix) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration
statement;
(x) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities (including
participating in "road shows" and engaging in other customary marketing
efforts);
(xi) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or other agent
retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(xii) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC and make generally available to its
security holders, in each case as soon as practicable but in no event
later than 45 days after the close of the period covered thereby (or 90
days in case the period covered corresponds to a fiscal year of the
Company), an earnings statement of the Company which will satisfy the
provisions of Section 11(a) of the Securities Act;
(xiii) immediately notify each seller of Registrable Securities
covered by such registration statement in the event of the issuance of any
stop order suspending the effectiveness of a registration statement, or of
any order suspending or preventing the use of any related prospectus or
suspending the qualification of any Registrable Securities included in
such registration statement for sale in any jurisdiction, and use its best
efforts promptly to obtain the withdrawal of such order;
(xiv) obtain and furnish a "cold comfort" letter, dated the
effective date of such registration statement (and, if such registration
involves an Underwritten Offering, dated the date of the closing under the
underwriting agreement), signed by the Company's independent public
accountants and addressed to the holders of the Registrable Securities, in
customary form and covering such matters as are customarily covered by
comfort letters by independent public accountants in such public offerings
and such other financial matters as the holders of a majority of the
Registrable Securities being sold may reasonably request; and
(xv) furnish a legal opinion of the Company's counsel, dated the
effective date of such registration statement (and, if such registration
involves an Underwritten Offering, dated the date of the closing under the
underwriting agreement) and addressed to the holders of the Registrable
Securities, with respect to the registration statement, each amendment and
supplement thereto, the prospectus included therein (including the
preliminary prospectus) and other
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documents relating thereto, in customary form and covering such matters as
are customarily covered by legal opinions of issuers' counsel in such
public offerings.
(b) It shall be a condition precedent to the obligation of the
Company to take any action pursuant to this Section 2.2 in respect of
Registrable Securities that the holders requesting registration thereof shall
furnish to the Company such information regarding the Registrable Securities
held by such holder and the intended method of disposition thereof as the
Company shall reasonably request and as shall be required in connection with the
action taken by the Company; provided, however, that the failure of any holder
of Registrable Securities to furnish such information shall not affect the
obligations of the Company pursuant to this Section 2.2 with respect to any
holder of Registrable Securities who furnishes such information to the Company.
Notwithstanding any provision to the contrary contained herein, no holder of
Registrable Securities shall be required to furnish any information or make any
representations or warranties to the Company or the underwriters other than
representations and warranties contained in a writing furnished by such holder
expressly for use in the registration statement to be filed in connection with
such registration solely with regard to such holder's identity, its ownership of
securities of the Company, the class and number of such securities it intends to
include in such offering, its intended method of distribution, other information
pertinent to such holder in its capacity as a selling holder, and any other
information with respect to such holder required by law to be disclosed in such
registration statement.
(c) If a registration pursuant to Section 2.1 involves an
Underwritten Offering:
(i) The right of any holder of Registrable Securities to
such registration shall be conditioned upon such holder's participation in
such underwriting and the inclusion of such holder's Registrable
Securities in the underwriting to the extent provided herein. The holders
of Registrable Securities to be distributed by the underwriters thereof
shall be parties to the underwriting agreement between the Company and
such underwriters and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part
of, the Company to and for the benefit of such underwriters shall also be
made to and for the benefit of such holders of Registrable Securities and
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to
the obligations of such holders of Registrable Securities. No such holder
of Registrable Securities shall be required to make any representations or
warranties to, or agree to any indemnities or contribution provisions
with, the Company or the underwriters other than representations,
warranties, indemnities and contribution provisions with respect to
information required to be furnished by such holder in writing pursuant to
subsection (b) of this Section 2.2.
(ii) Each holder of Registrable Securities included in such
registration agrees not to sell, grant any option to purchase, acquire any
option to sell, make any short sale of or otherwise dispose of or reduce
its investment risk in any securities of the Company (other than as part
of such Underwritten Offering), without the consent of the managing
underwriter, for a period of 30 days in all cases (or such lesser or
greater number as the managing underwriter shall designate) after the
effective date of such registration. At the request of the
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managing underwriter, each such holder of Registrable Securities shall
execute a separate agreement with such managing underwriter to the
foregoing effect.
(iii) The Company agrees, if so required by the managing
underwriter, not to effect any sale or distribution of any of its equity
or debt securities, as the case may be, or securities convertible into or
exchangeable or exercisable for any of such equity or debt securities, as
the case may be, (other than as part of such Underwritten Offering) for a
period of 30 days in all other cases after the effective date of such
registration, except in connection with a stock option plan, stock
purchase plan, dividend reinvestment plan, savings or similar plan.
(iv) Any holder of Registrable Securities requesting to be
included in such registration may elect, in writing, prior to the
effective date of the registration statement filed in connection with such
registration, not to register such securities in connection with such
registration.
2.3. Sale of Registrable Securities. In the case of any offering subject
to the provisions of Section 2.1 hereof, in lieu of the holders of any
Registrable Securities including such Registrable Securities in any registration
statement filed in connection therewith and/or exercising any Warrant,
simultaneously with the sale of any securities subject to such registration
statement by the Company to the underwriters of such offering (or, in the case
of a best efforts offering, to the public), each such holder may at its
option sell its Registrable Securities and Warrant to the Company to the extent
such Registrable Securities could have been included in such registration
statement pursuant to Section 2.1, and to the extent that a number of shares
equal to such Registrable Securities are actually purchased from the Company by
the underwriters or the public, as the case may be, in connection with such
offering, with the price per share being the same as the net price per share
received by the Company from such underwriters or the public, as the case may
be, pursuant to such offering.
2.4. Indemnification. (a) In the event of any registration of any
securities under the Securities Act pursuant to Section 2.1 hereof, the Company
will, and it hereby agrees to, indemnify and hold harmless, to the extent
permitted by law, each seller of any Registrable Securities covered by such
registration statement, its directors, officers, general and limited partners,
employees, agents and representatives (and directors and officers thereof and,
if such seller is a portfolio or investment fund, its investment advisors or
agents), each other Person who participates as an underwriter in the offering or
sale of such securities and each other Person, if any, who controls such seller
or any such underwriter within the meaning of Section 15 of the Securities Act,
as follows:
(i) against any and all loss, liability, claim, damage, attorneys'
fee or expense whatsoever arising out of or based upon an untrue statement
or alleged untrue statement of a material fact contained in any
registration statement (or any amendment or supplement thereto), including
all documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arising out of an untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or prospectus (or
any amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement (a
"Settlement
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Payment") of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense (other than any Settlement
Payment) reasonably incurred by them in connection with investigating,
preparing or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any such
expense is not paid under clauses (i) or (ii) above;
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any such seller or underwriter
expressly for use in the preparation of any registration statement (or any
amendment thereto) or any preliminary prospectus or prospectus (or any amendment
or supplement thereto); and provided, further, that the Company will not be
liable to any Person who participates as an underwriter in the offering or sale
of Registrable Securities (or, if such offering and sale are not effected by or
through an underwriter, then such seller) or any other Person, if any, who
controls such underwriter (or seller, as the case may be) within the meaning of
Section 15 of the Securities Act, under the indemnity agreement in this Section
2.4(a) with respect to any preliminary prospectus or final prospectus or final
prospectus as amended or supplemented, as the case may be, to the extent that
any such loss, claim, damage or liability of such underwriter or controlling
Person results from the fact that such underwriter (or seller, as the case may
be) sold Registrable Securities to a Person to whom there was not sent or given,
at or prior to the written confirmation of such sale, a copy of the final
prospectus or of the final prospectus as then amended or supplemented, whichever
is most recent, if the Company has previously furnished copies thereof to such
underwriter (or seller, as the case may be). Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
seller or any such director, officer, general or limited partner, investment
advisor or agent, underwriter or controlling Person and shall survive the
transfer of such securities by such seller.
(b) The Company may require, as a condition to including any
Registrable Securities in any registration statement filed in accordance with
Section 2.1 hereof that the Company shall have received an undertaking
reasonably satisfactory to it from the prospective seller of such Registrable
Securities to indemnify and hold harmless (in the same manner and to the same
extent as set forth in Section 2.4(a) hereof) the Company, the underwriters, if
any, each Person who controls the Company or any such underwriter (within the
meaning of Section 15 of the Securities Act) and their respective officers,
directors, partners, employees, agents and representatives, with respect to any
statement in or omission from such registration statement, any preliminary,
final or summary prospectus contained therein, or any amendment or supplement,
if such statement or alleged statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by or on
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behalf of such seller specifically for use in the preparation of such
registration statement, preliminary, final or summary prospectus or amendment or
supplement. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company, the underwriters, or any
such director, officer, partner, employee, agent, representative or controlling
Person and shall survive the transfer of such securities by such seller. The
obligations of the Company and such seller pursuant to this Section 2.4 are to
be several and not joint; provided, however, that, with respect to each claim
pursuant to this Section 2.4, the Company shall be liable for the full amount of
such claim, and each such seller's liability under this Section 2.4 shall be
limited to an amount equal to the net proceeds (after deducting the
underwriters' discount and expenses) received by such seller from the sale of
Registrable Securities by it pursuant to such registration statement.
(c) Promptly after receipt by an indemnified party hereunder of
written notice of the commencement of any action or proceeding involving a claim
referred to in this Section 2.4, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, give written notice
to such indemnifying party of the commencement of such action; provided,
however, that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under this
Section 2.4, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified, to the extent that it may wish with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof.
(d) The Company and each seller of Registrable Securities shall
provide for the foregoing indemnities (with appropriate modifications) in any
underwriting agreement with respect to any required registration or other
qualification of securities under any federal or state law or regulation of any
governmental authority.
2.5. Contribution. In order to provide for just and equitable contribution
in circumstances under which the indemnity contemplated by Section 2.4 hereof is
for any reason not available, the parties required to indemnify by the terms
thereof shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement incurred by
the Company, any seller of Registrable Securities and one or more of the
underwriters, except to the extent that contribution is not permitted under
Section 11(f) of the Securities Act. In determining the amounts which the
respective parties shall contribute, there shall be considered the relative
benefits received by each party from the offering of the Registrable Securities
(taking into account the portion of the proceeds of the offering realized by
each), the parties' relative knowledge and access to information concerning the
matter with respect to which the claim was asserted, the opportunity to correct
and prevent any statement or omission and any other equitable considerations
appropriate under the circumstances.
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The Company, each such seller and the underwriters agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the underwriters were treated as one entity for such
purpose) or for the underwriters' portion of such contribution to exceed the
percentage that the underwriting discount bears to the initial public offering
price of the Registrable Securities. For purposes of this Section 2.5, each
Person, if any, who controls an underwriter within the meaning of Section 15 of
the Securities Act shall have the same rights to contribution as such
underwriter, and each director and each officer of the Company who signed the
registration statement, and each Person, if any, who controls the Company or a
seller of Registrable Securities shall have the same rights to contribution as
the Company or a seller of Registrable Securities, as the case may be.
Notwithstanding the foregoing, no seller of Registrable Securities shall be
required to contribute any amount in excess of the amount such seller would have
been required to pay to an indemnified party if the indemnity under Section 2.4
hereof were available.
2.6. Current Public Information. At all times after the Company has filed
a registration statement with the SEC pursuant to the requirements of either the
Securities Act or the Exchange Act, and as long as any Warrant shall remain
outstanding or the holders thereof shall hold any Registrable Securities, the
Company will file all reports required to be filed by it under the Securities
Act and the Exchange Act and the rules and regulations adopted by the SEC
thereunder, and will take such further action as any holder or holders of
Registrable Securities may reasonably request, all to the extent required to
enable such holders to sell Registrable Securities pursuant to Rule 144 under
the Securities Act (as such rule may be amended from time to time) or any
similar rule or regulation hereafter adopted by the SEC.
2.7. Survival. The provisions of Sections 2.1 through 2.6 hereof,
inclusive, shall survive the exercise of the Warrants with respect to all Shares
issued upon exercise thereof. Without limiting the generality of the foregoing,
in the event that any Warrant shall expire after being exercised in part, the
provisions of such Sections shall survive such expiration with respect to all
Shares issued upon the exercise thereof prior to such expiration.
2.8. Other Registration Rights. (a) The Company represents and warrants to
Nomura that, other than as provided herein or as set forth on Schedule 2.8
hereto, there are no agreements, understandings or commitments, oral or written,
between the Company and the holders of any of its securities pursuant to which
such holders have a right to require the Company to register or qualify any of
its securities under the Securities Act or any applicable state securities laws.
(b) Except for the rights granted herein and the rights described in
Section 2.8(a) above, without the prior written consent of the Majority Holders,
the Company will not grant to any Person registration rights superior to those
granted to the holders of the Registrable Securities hereunder.
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ARTICLE III.
MISCELLANEOUS
Section 3.1. Term of Agreement. This Agreement shall terminate (i) upon
written consent to such termination by each of the Company and the Majority
Holders, and (ii) on September 23, 2005.
Section 3.2. Notices. Any notice, request, instruction or other document
required or permitted to be given hereunder by any party hereto to another party
hereto will be in writing and will be given to such party by certified mail at
its address set forth below:
If to Nomura:
Nomura Holding America Inc.
2 World Financial Xxxxxx, Xxxxxxxx X
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxx, or his
authorized representative
Telecopy No.: (000) 000-0000
with a copy to:
Nomura Holding America Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxx X
Xxx Xxxx, XX 00000-0000
Attention: Legal Department
Telecopy No.: (000) 000-0000
If to Company:
Easyriders, Inc.
000 Xxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Secretary
Telecopy No.: (000) 000-0000
or, in the case of any transferee of any holder of Registrable Securities, to
the address of such transferee specified by it upon notice given in accordance
with the terms hereof, or to such other address as the party to whom notice is
to be given may provide in a written notice to the party giving such notice, a
copy of which written notice will be on file with the Secretary of the Company.
Each such notice, request or other communication will be effective (a) if given
by certified mail, 96 hours after such communication is deposited in the mails
with certified postage prepaid addressed as aforesaid, (b) one Business Day
after being furnished to a nationally recognized overnight courier for next
Business Day delivery, and (c) on the date sent if sent by electronic facsimile
transmission, receipt confirmed.
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Section 3.3. Specific Performance. In addition to any other remedy
provided at law or equity, the parties hereto shall be entitled to specific
performance of this Agreement.
Section 3.4. Assignment. This Agreement shall inure to the benefit of and
be binding upon the respective successors and assigns of the parties hereto;
provided that the Company may not assign its obligations hereunder without the
prior written consent of the Majority Holders; provided further that if any
transferee of any holder of Registrable Securities shall acquire any Registrable
Securities in any manner, whether by operation of law or otherwise, such
transferee by taking and holding such Registrable Securities, shall be entitled
to the benefits of and be deemed to be bound by this Agreement.
Section 3.5. Choice of Law; Jurisdiction; Waiver of Jury Trial. This
Agreement shall be governed by and construed in accordance with the law of the
State of New York. Each party hereto hereby submits to the jurisdiction of the
United States District Court and of any state court sitting in the State of New
York (and of the appropriate appellate courts) for the purposes of all legal
proceedings arising out of or relating to this Agreement and irrevocably waives,
to the fullest extent permitted by applicable law, any objection to venue laid
therein. Process in any such proceeding may be served on such party, and any
judgment thereon may be enforced against such party, anywhere in the world,
whether within or without the State of New York. Each party hereto hereby
waives, to the fullest extent permitted by applicable law, any right it may have
to a trial by jury in respect of any matter directly or indirectly arising out
of or otherwise relating to this Agreement.
Section 3.6. Amendments; Waivers. (a) No failure or delay on the part of
any party in exercising any right, power or privilege hereunder will operate as
a waiver thereof, nor will any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided will be cumulative and not
exclusive of any rights or remedies provided by law.
(b) Neither this Agreement nor any term or provision hereof may be
amended or waived except by an instrument in writing signed, by the Majority
Holders and to the extent the rights, duties or obligations of the Company are
modified or supplemented thereby, the Company.
Section 3.7. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be invalid, illegal
or unenforceable in any jurisdiction, the validity, legality and enforceability
of the remaining provisions, or of such provision in any other jurisdiction,
shall not in any way be affected or impaired thereby.
Section 3.8. Entire Agreement. This Agreement and the other Transaction
Documents (as defined in the Note Agreement) contain the entire understanding of
the parties hereto with respect to the subject matter hereof and supersede all
prior agreements, discussions and understandings among such parties with respect
to such subject matter.
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Section 3.9. Further Assurances. Each party hereto shall do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and
documents as any other party hereto reasonably may request in order to carry out
the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby. Neither the Company nor any Holder shall
voluntarily undertake any course of action inconsistent with satisfaction of the
requirements applicable to them set forth in this Agreement and each shall
promptly do all such acts and take all such measures as may be appropriate to
enable them to perform as early as practicable the obligations herein and
therein required to be performed by them.
Section 3.10. Dating. Although this Agreement is dated as of the date
first written above for convenience, this Agreement shall be effective on
September [ ], 1998.
Section 3.11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be executed and delivered by their duly authorized officers
as of the date first above written.
EASYRIDERS, INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name:
Title:
NOMURA HOLDING AMERICA INC
By: /s/ Xxxxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Attorney-in-Fact
