1 EX-10.4
EXHIBIT 10.4
Registration Rights Agreement
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as
of November 8, 1996, by and between Xxxxxxx Sports Inc., a Delaware
corporation (the "Company"), and Silver Oak Capital, L.L.C., a Delaware
limited liability corporation (the "Purchaser").
WHEREAS, pursuant to a Note Purchase Agreement, dated as of the
date hereof (the "Purchase Agreement"), by and among the Company and the
Purchaser, the Company is issuing to the Purchaser its 4.10% Convertible
Subordinated Note due November 1, 2004 in the principal amount of
$7,500,000;
WHEREAS, the Note is convertible at any time in whole or in part
into shares of the Company's Common Stock, par value $0.01 per share (the
"Common Stock");
WHEREAS, in order to induce the Purchaser to enter into the
Purchase Agreement, the Company has agreed to provide the registration
rights set forth in this Agreement.
NOW, THEREFORE, the parties to this Agreement hereby agree as
follows:
1. Certain Definitions.
(a) Capitalized terms used but not defined herein shall have the
meanings given such terms in the Purchase Agreement.
(b) The term "Shares" shall refer to the shares of Common Stock
of the Company issued or issuable on conversion of the Note.
(c) The term "Holder" or "Holders" shall refer to each of (i)
the Purchaser, (ii) each successor or assignee of Purchaser's rights
hereunder who has received such rights in accordance with the Purchase
Agreement and (iii) each transferee or assignee of all or a portion of the
Note or the Shares who has received such interest in accordance with the
Purchase Agreement to the extent the Purchaser shall specify such person
pursuant to this clause (iii) as a Holder.
(d) The term "Majority Holders" shall mean, as of any date of
determination, Holders of not less than a majority of the Restricted Shares
at such date.
(e) The term "Restricted Share" shall refer to each Share until
the date on which such Share (i) has been registered under the Securities
Act of 1933, as amended (the "Act") and disposed of pursuant to a
registration statement, (ii) is distributed to the public
2 EX-10.4
pursuant to Rule 144 under the Act or is saleable pursuant to Rule 144(k)
under the Act or (iii) is transferred otherwise in accordance with the Act
such that the holder thereof has shares of Common Stock that may be freely
and publicly resold without registration or limitation.
2. Demand Registrations.
(a) The Holders may at any time after the date hereof request (a
"Demand") registration under the Securities Act (a "Demand Registration")
of the offer and sale of the Restricted Shares, which Demand shall specify
the number of Restricted Shares requested to be registered and the intended
method of distribution; and the Company shall, as promptly as practicable
following such Demand file with the Securities and Exchange Commission (the
"Commission") and thereafter shall use its best efforts to cause to be
declared effective a registration statement (a "Registration Statement") on
an appropriate form under the Act, relating to the offer and sale of the
Restricted Shares by the Holders in accordance with the method of
distribution so specified; provided, that:
(i) Any Demand must be made by a Holder in writing on behalf of
the Majority Holders;
(ii) The Company will not be obligated to effect more than three
(3) Demand Registrations. A registration will not count as one of
such three Demand Registrations until it has become effective and been
maintained effective for the offer and sale of the Restricted Shares
as hereinafter provided for a period of 270 days (or such shorter
period as shall terminate at such time as all Shares included therein
have been sold thereunder or such Shares cease to Restricted Shares);
and
(iii) If the intended method of distribution is an
underwritten offering, (A) the Company will not be obligated to
conduct or pay the expenses of more than two (2) roadshows relating to
the offer of the Restricted Shares; (B) the Company will not be
obligated to conduct or pay the expenses of any such roadshow unless
there is included in such Registration Statement on behalf of the
Holders and any other holders participating in such registration in
accordance with Section 2(b), at least 500,000 shares of Common Stock
(as adjusted to reflect any stock splits, combinations,
recapitalizations, reclassifications or reorganizations affecting the
Shares after the date hereof); and (C) the Company will have no
obligation to conduct or pay expenses in connection with a roadshow
relating to a Demand Registration for the offer of the Restricted
Shares that occurs within 12 months after an earlier roadshow that the
Company has conducted and for which the Company has paid expenses and
that relates to a Demand Registration for the offer of the Restricted
Shares.
(b) The Company will give prompt notice to each Holder of
Restricted Shares of a Demand under Section 2(a) and will include in such
Demand Registration on a pro rata basis all Restricted Shares requested to
be included on the part of the Holders. The Company will not include in
any Demand Registration any securities which are not Restricted Shares
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3 EX-10.4
without the prior written consent of the Holders of a majority of the
Restricted Shares requested to be included in such registration (such
consent not to be unreasonably withheld) unless the Demand Registration
takes the form of a firm commitment underwritten offering. If the Demand
Registration takes the form of a firm commitment underwritten offering and
the lead underwriter of the offering advises the Company that the total
number of securities requested to be included in such offering exceeds the
total number of securities which can be sold, there shall be included in
such offering the amount of securities which in the opinion of the lead
underwriter can be sold, and such securities shall be allocated (x) first
to the holders of Restricted Shares and (y) next among the Company and such
other holders of securities that have requested inclusion in such
registration pro rata based upon the number of securities sought to be
registered, or on such other basis as may be agreed upon among the Company,
such lead underwriter and such other securityholders.
(c) The Company will give prompt notice to each Holder of
Restricted Shares of any proposed registration (other than in connection
with a registration on Form S-8 or S-4 or any successor or similar form) by
the Company of its securities for its own account, and permit the Holders
to request that such registration include the Restricted Shares of the
Holders, except that, if the Registration takes the form of a firm
commitment underwritten offering and the lead underwriter of the offering
advises the Company that the total number of securities requested to be
included in such offering exceeds the total number of securities which can
be sold, there shall be included in such offering the amount of securities
which in the opinion of the lead underwriter can be sold, and such
securities shall be allocated (x) first to the Company and (y) next among
the holders of Restricted Shares that have requested inclusion in such
registration and such other securityholders who have exercised piggyback
registration rights pro rata based upon the number of securities sought to
be registered, or on such other basis as may be agreed upon among the
Company, such underwriter, the Holders of Restricted Shares and such other
securityholders.
(d) The Company will give prompt notice to each Holder of
Restricted Shares of any proposed registration (other than in connection
with a registration on Form S-8 or S-4 or any successor or similar form) by
the Company of securities for the account of other securityholders
exercising demand registration rights, and permit the Holders to request
that such registration include the Restricted Shares of the Holders, except
that, if the Registration takes the form of a firm commitment underwritten
offering and the lead underwriter of the offering advises the Company that
the total number of securities requested to be included in such offering
exceeds the total number of securities which can be sold, there shall be
included in such offering the amount of securities which in the opinion of
the lead underwriter can be sold, and such securities shall be allocated
(x) first to such other securityholders who have exercised demand
registration rights and (y) next among the Company and the holders of
Restricted Shares that have requested inclusion in such registration pro
rata based upon the number of securities sought to be registered, or on
such other basis as may be agreed upon among the Company, such lead
underwriter and the Holders of Restricted Shares.
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4 EX-10.4
(e) It is understood that, except to the extent provided in
Section 2(i) or Section 7, nothing in this Agreement shall preclude the
Company from filing any registration statement for the sale of shares for
its own account or for the account of any other securityholders, but that
the filing of such registration statement shall not affect the obligations
of the Company to effect a Demand Registration pursuant to a Demand under
Section 2(a) and to otherwise comply with its obligations hereunder in
respect of such Demand by the Holders.
(f) The Company will ensure that (i) the Registration Statement
and any amendment thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with the Act and the
rules and regulations thereunder, (ii) the Registration Statement and any
amendment thereto does not, when it becomes effective, contain 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 and (iii) the prospectus forming part of the Registration
Statement, and any supplement to such prospectus, does not, at any time the
same is used in connection therewith, include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the Company shall have no
responsibilities with respect to the adequacy of the information required
to be provided to it pursuant to Section 3(l).
(g) If (i) the Registration Statement is not filed with the
Commission on or prior to 30 days after a Demand made in accordance with
Section 2(a), (ii) the Company has not responded to all of the questions
("Questions") posed by the Commission regarding the Registration Statement
within 10 days of receipt of the Questions from the Commission, (iii) the
Registration Statement is not declared effective within 120 days of the
Demand, or (iv) after a Registration Statement is declared effective, such
Registration Statement thereafter ceases to be effective or such
Registration Statement or the related prospectus ceases to be usable
(during a Blackout Period (as hereinafter defined in Section 3(i)) or
otherwise) for its intended purpose for a period of more than 45
consecutive days (each such event referred to in clauses (i) through (iv),
a "Registration Default"), then commencing on the day following the date on
which such Registration Default occurs, the Company agrees to pay to each
Holder of Restricted Shares, during the first 90-day period immediately
following the occurrence of such Registration Default, liquidated damages
by way of additional interest on the Note (the "Special Interest") in an
amount equal to 0.50% per annum of the principal amount of the Note. The
amount of Special Interest payable to each Holder shall increase by an
additional 0.25% per annum during each 90-day period thereafter during
which such Registration Default or any other Registration Default shall
continue, but shall in no event exceed 1.00% per annum. A Registration
Default shall cease, and Special Interest shall cease to be payable with
respect to such Registration Default (1) upon the filing of the
Registration Statement, in the case of clause (i) above, (2) upon receipt
by the Commission of the responses to the Questions, in the case of clause
(ii) above, (3) when the Registration Statement becomes effective or usable
in the case of clauses (iii) and (iv) above. Notwithstanding the foregoing
to the contrary, (I) the amount of Special Interest payable shall not
increase because more than one Registration Default have occurred and are
pending and (II) a Holder of Restricted Shares who is not entitled to the
benefits of a
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5 EX-10.4
Demand Registration (e.g. such Holder has not elected to include Restricted
Shares in such Registration Statement) shall not be entitled to Special
Interest with respect to a Registration Default that pertains to a
Registration Statement. All Special Interest shall be paid to Holders in
the same manner and at the same time as payments of interest made pursuant
to the Note.
(h) The Company shall not be required to include in the
Registration Statement Restricted Shares of a Holder if such Holder fails
to provide the information required to be provided by it, if any, pursuant
to Section 3(l).
(i) The Company will not grant to any person the right to cause
the Company to register any equity securities of the Company held by such
person or enter into any other agreement, in either case if compliance by
the Company on a timely basis with its obligations under this Agreement
would constitute a breach of or default under any such other agreement.
3. Registration Procedures. In connection with any Demand
Registration, the Company will comply with the following provisions:
(a) The Company shall use its best efforts to keep the
Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be usable by the Holders for a period of
nine (9) months from the date such Registration Statement becomes effective
or such shorter period that will terminate when all of the Shares covered
by the Registration Statement have been sold pursuant to the Registration
Statement or all Shares cease to be Restricted Shares; provided, that if
the Company shall give any Suspension Notice (as such is defined herein in
Section 3(c)) under Section 3(c)(ii) - (v), such nine month period shall be
extended by the number of days during such period from and including the
date of the giving of such Suspension Notice to and including the date when
each seller of Common Stock covered by the applicable Registration
Statement shall have received (x) the copies of the supplemental or amended
prospectus contemplated by Section 3(i) (if an amended or supplemental
prospectus is required) or (y) the Advice (if no amended or supplemental
prospectus is required).
For purposes of this Section 3(a), the Company shall be deemed
not to have used its best efforts to keep the Registration Statement
effective during the requisite period if it voluntarily takes any action
that would result in Holders of Shares covered thereby not being able to
offer and sell such Shares pursuant to the Registration Statement during
that period, unless such action is an event described in Section 3(c)(v) or
Section 3(d) below or such action is required by applicable law or, to the
extent required by applicable law, if it shall fail promptly to take such
action as is reasonably necessary to permit such prospectus to once again
be so usable.
(b) The Company shall furnish to each Holder included in the
registration, prior to the filing thereof with the Commission, a copy of
the Registration Statement and each amendment thereof and each supplement,
if any, to the prospectus included therein and shall use its best efforts
to reflect in each such document, when so filed with the Commission, such
comments as such Holders reasonably may propose.
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6 EX-10.4
(c) The Company shall advise each Holder included in the
registration and, if requested by a Holder, confirm such advice in writing
(which advice pursuant to clauses (ii) - (v) hereof shall be accompanied by
an instruction (a "Suspension Notice") to suspend the use of any prospectus
until the requisite changes have been made):
(i) when the Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement
or any post effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the shares of Common
Stock for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(v) of the happening of any event that represents a fundamental
change in the information set forth or incorporated by reference in
the Registration Statement or that otherwise requires the making of
any changes in the Registration Statement or the prospectus or the
filing of any reports under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") so that, as of such date, the statements
therein are not misleading and do not omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
Each Holder agrees that, upon receipt of any Suspension Notice of
the Company pursuant to paragraphs (ii) through (v) of Section 3(c) hereof,
such Holder will discontinue disposition of such shares pursuant to the
Registration Statement until such Holder's receipt of copies of the
supplemental or amended prospectus contemplated by Section 3(i) hereof, or
until advised in writing (the "Advice") by the Company that the use of the
applicable prospectus may be resumed.
(d) The Company will use its reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement at the earliest possible time.
(e) The Company will furnish to each Holder of Shares included
within the coverage of the Registration Statement, without charge, copies
of the Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if a Holder so requests
in writing, all exhibits (including those incorporated by reference) in
such number as such Holder may reasonably request from time to time.
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7 EX-10.4
(f) The Company will deliver to each Holder of Shares included
within the coverage of the Registration Statement, without charge, as many
copies of the prospectus (including each preliminary prospectus) included
in the Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request; and the Company consents to the use of
the prospectus or any amendment or supplement thereto by each of the
selling Holders of Common Stock in connection with the offering and sale of
the Common Stock covered by the prospectus or any amendment or supplement
thereto.
(g) Prior to any public offering of Common Stock pursuant to the
Registration Statement, the Company will use its best efforts to register
or qualify or cooperate with the Holders and their respective counsel in
connection with the registration or qualification of such securities for
offer and sale under the securities or blue sky laws of such jurisdictions
as such counsel reasonably requests in writing on behalf of such Holders
and do any and all other acts or things necessary or advisable to enable
the offer and sale in such jurisdictions of the shares of Common Stock
covered by the Registration Statement; provided, however, that the Company
will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which
would subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(h) The Company will cooperate with each Holder to facilitate
the timely preparation and delivery of certificates representing shares of
Common Stock to be sold pursuant to the Registration Statement free of any
restrictive legends and registered in such names as the Holder may request
in writing prior to sales of Common Stock pursuant to the Registration
Statement.
(i) Upon the occurrence of any event contemplated by paragraphs
(ii) through (v) of Section 3(c) hereof during the period for which the
Company is required to maintain an effective Registration Statement, the
Company will prepare a post-effective amendment to the Registration
Statement or a supplement to the related prospectus or file any other
required document as soon as practicable so that, as thereafter delivered
to purchasers of the Common Stock, the prospectus will not include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and will comply with the Act
and the rules promulgated thereunder; provided however that, if the Company
determines in its reasonable good faith judgment that the filing of any
such post-effective amendment or supplement or other document would
interfere with any announced or imminent material financing, acquisition,
disposition, corporate reorganization or other material transaction of a
similar type involving the Company or would require the disclosure of
information that is not then in the best interests of the Company to
disclose, then the Company may, subject to the provisions of Section 2(g),
delay such filing for such period as would terminate at the earliest time
at which the Company determines that such disclosure could be made without
unduly interfering with the interests of the Company. The period of any
such delay is referred to herein as a "Blackout Period". In no event may
any Blackout Period exceed 90 days from the date of the Suspension Notice,
and the Company shall not be permitted to impose more than one Blackout
Period in any calendar
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8 EX-10.4
year. The Company shall give prompt notice to the Holder of the
termination of any Suspension Notice or Blackout Period.
(j) The Company will prepare and deliver in a timely manner, but
in no event later than two business days prior to the consummation of a
sale of shares of Common Stock, certificates representing Restricted Shares
to be sold and not bearing any restrictive legends.
(k) The Company will comply with all applicable rules and
regulations of the Commission and will make generally available to its
security holders as soon as practicable but in any event not later than
eighteen (18) months after the effective date of the applicable
Registration Statement an earnings statement satisfying the provisions of
Section 11(a) of the Act or Rule 158 promulgated thereunder.
(l) The Company may require each Holder of Shares to be sold
pursuant to the Registration Statement to furnish to the Company such
information regarding such Holder, the shares of Common Stock beneficially
owned by the Holder and the intended method of distribution of Shares as
the Company may from time to time reasonably require for inclusion in the
Registration Statement, and the Company may exclude from such registration
the shares of Common Stock of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(m) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and
take all such other action, if any, as Holders of a majority of the Shares
being sold or the managing underwriters (if any) shall reasonably request
in order to facilitate the disposition of the Shares pursuant to the
Registration Statement; provided, however, that the Company shall have no
obligation to pay any discounts or underwriting commission attributable to
Restricted Shares sold for the account of Holders, or any expenses of the
underwriters other than those customarily reimbursed by sellers of
securities, including (A) fees and expenses of filings and counsel in
connection with the qualification of the Shares for offering and sale under
state securities laws, (B) fees and expenses of filings and counsel
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the underwriting and (C) other
expenses in the event that the underwriting agreement is terminated after
its execution but prior to closing of the sale thereunder. The Company
agrees that, in connection with an underwritten registration, it will enter
into an underwriting agreement in customary form that will contain
applicable indemnification provisions similar to those contained in Section
5 hereof, providing for general indemnification by the Company of the
underwriters and for indemnification by the Holders of the underwriters
that is limited to losses derived from misstatements or omissions made in
reliance upon and in conformity with written information furnished to the
Company by such Holder expressly for use therein.
(n) The Company, if requested by Holders of a majority of the
Shares being sold, or the managing underwriters (if any) in connection with
the Registration Statement, shall use its best efforts to cause (i) its
counsel to deliver an opinion relating to the Registration
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9 EX-10.4
Statement and the Common Stock, in customary form addressed to such Holders
and the managing underwriters (if any), thereof as of the effective date of
such Registration Statement and the closing of any underwriting; (ii) its
officers to execute and deliver all customary documents and certificates
requested by Holders of a majority of the Shares being sold or the managing
underwriters (if any), including an underwriting agreement containing
customary representations, agreements and indemnification on the part of
the Company; and (iii) its independent public accountants to provide a
comfort letter in customary form, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement of
Auditing Standards No. 72.
(o) The Company will use its best efforts to cause the shares of
Common Stock covered by the Registration Statement to be listed on each
securities exchange, if any, or NASDAQ on which similar securities issued
by the Company are then listed, if so requested by Holders of a majority of
shares of Common Stock covered by the Registration Statement, or by the
managing underwriters (if any).
4. Registration Expenses. The Company will bear all expenses
incurred in connection with the performance of its obligations under this
Agreement, including without limitation filing fees, printing costs, and
(subject to the provisions of Section 2(a)(iii)) the costs and expenses of
a roadshow or other management presentations to investors relating to the
Company, but not the underwriting commissions or discounts associated with
the sale of Restricted Shares, and the Company will reimburse the Holders
for the reasonable fees (not exceeding $10,000), disbursements and expenses
of counsel (and any local counsel as reasonably required) chosen by the
Holders of a majority of the shares of Common Stock to be sold pursuant to
a Registration Statement acting for the Holders in connection therewith.
5. Indemnification.
(a) The Company shall indemnify and hold harmless each of the
Holders of Common Stock to be included in such registration against any
losses, claims, damages or liabilities, joint or several, to which such
Holder may become subject under the Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement under which such shares of Common Stock were registered under the
Act, or any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such Holder, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and the Company shall
reimburse such Holder for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company
shall not be liable to any such person in any such case to the extent that
any such loss, claim, damage or liability (or actions in respect thereof)
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration
Statement, or
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preliminary, final or summary prospectus, or amendment or supplement
thereto, in reliance upon and in conformity with written information
furnished to the Company by, or on behalf of, such person expressly for use
in connection therewith.
(b) Each Holder agrees, as a condition to including any shares
of Common Stock in the Registration Statement filed pursuant to Section 2
hereof and to entering into any underwriting agreement with respect
thereto, severally and not jointly, to (i) indemnify and hold harmless the
Company and all other Holders against any losses, claims, damages or
liabilities to which the Company or such other Holders may become subject
under the Act, the Exchange Act, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, or any preliminary,
final or summary prospectus contained therein or furnished by the Company
to any such Holder, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Holder expressly
for use in connection therewith and (ii) reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses
are incurred; provided, however, that no such Holder shall be required to
undertake liability to any person under this Section 5(b) for any amounts
in excess of the dollar amount of the proceeds to be received by such
Holder from the sale of such Holder's Common Stock pursuant to such
registration.
(c) Promptly after receipt by an indemnified party under
Sections 5(a) or 5(b) hereof written notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to
be made against an indemnifying party pursuant to the indemnification
provisions of or contemplated by this Section 5, notify such indemnifying
party in writing of the commencement of such action; but the omission so to
notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party other than under the indemnification
provisions of or contemplated by Sections 5(a) or 5(b) hereof. In case any
such action shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, such indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, 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, such
indemnifying party shall not be liable to such indemnified party for any
legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. Such
indemnifying party shall not enter into any settlement with a party without
obtaining an unconditional release of each indemnified party with respect
to any and all claims against each indemnified party. An indemnified party
shall not
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enter into any settlement without the consent of the indemnifying party
which shall not be unreasonably withheld.
(d) Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Sections 5(a) or 5(b) are
unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party or by such
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The parties hereto agree that it would not be just and equitable
if contributions pursuant to this Section 5(d) were determined by pro rata
allocation (even if the Holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in this Section 5(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 5(d),
no Holder shall be required to contribute any amount in excess of the
amount by which the dollar amount of the proceeds received by such Holder
from the sale of any shares of Common Stock (after deducting any fees,
discounts and commissions applicable thereto) exceeds the amount of any
damages which such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission,
and no underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Common Stock underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The Holders' and any underwriters' obligations in this Section 5(d) to
contribute shall be several in proportion to the principal amount of Common
Stock registered or underwritten, as the case may be, by them and not
joint.
(e) The obligations of the Company under this Section 5 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
partner of each Holder, agent and underwriter and each person, if any, who
controls any Holder, agent or underwriter within the meaning of the
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12 EX-10.4
Act; and the obligations of the Holders and any underwriters contemplated
by this Section 5 shall be in addition to any liability which the
respective Holder or underwriter may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Company
and to each person, if any, who controls the Company within the meaning of
the Act.
6. Underwritten Registrations. If any of the Restricted Shares
covered by the Registration Statement are to be sold in an underwritten
offering, the Company shall have the right to select the lead investment
banker or lead manager that will administer the offering, subject to the
consent of the Holders of a majority of such Restricted Shares included in
such offering, which consent will not be unreasonably withheld, and the
Holders of a majority of such Restricted Shares included in such offering
will have the right to select one or more co-investment bankers or co-lead
managers to administer the offering, subject to consent of the Company,
which consent will not be unreasonably withheld.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Restricted
Shares on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and
(ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
7. Holdback Agreement. The Company agrees, if so requested by
the managing underwriters of any underwritten offering, (i) not to effect
any sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, during
the seven days prior to and during the 90-day period beginning on the
effective date of any underwritten Demand Registration (except as part of
such underwritten registration or pursuant to registrations on Form S-4 or
S-8 or any successor form) and (ii) to use its best efforts to cause each
executive officer, director and any affiliate of the Company to agree not
to effect any sale or distribution (including sales pursuant to Rule 144)
of any such securities during such period (except as part of such
underwritten registration, if otherwise permitted), unless the underwriters
managing the registered public offering otherwise agree.
8. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Company
has obtained the written consent of Holders of a majority of the Shares.
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of the Holders whose Shares are being sold pursuant to the
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority of the Shares
being sold by such Holders pursuant to the Registration Statement.
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13 EX-10.4
(b) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-
class mail, telex, telecopier, or air courier guaranteeing overnight
delivery: (i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
8(b), which, with respect to the Purchaser shall initially be: Silver Oak
Capital, L.L.C., c/o Xxxxxx, Xxxxxx & Co., L.P., 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxx (Telecopy: (212)
867-5436); and (ii) if to the Company: Xxxxxxx Sports Inc., 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxx Xxxxxxxxxx (Telecopy:
(000) 000-0000). All such notices and communications shall be deemed to
have been duly given: when delivered by hand, if personally delivered;
three business days after being delivered to a next-day air courier; when
answered back, if faxed; and when receipt is acknowledged by the
recipient's telecopier machine, if telecopied.
(c) Successors And Assigns. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto
and their respective successors and assigns.
(d) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same instrument.
(e) Governing Law. This Agreement shall be governed by the laws
of the State of New York (regardless of the laws that might otherwise
govern under applicable principles of conflicts of law) as to all matters,
including but not limited to matters of validity, construction, effect,
performance and remedies.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Severability. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their reasonable efforts
to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such term,
provision, covenant or restriction that may be hereafter declared invalid,
illegal, void or unenforceable.
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14 EX-10.4
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first above written.
XXXXXXX SPORTS INC.
XXXXX XXXXXXXXXX
By: ____________________________________
Name: Xxxxx Xxxxxxxxxx
Title: CFO & Executive V.P.
SILVER OAK CAPITAL, L.L.C.
XXXXXXX X. XXXXXX
By: __________________________________
Name: Xxxxxxx X. Xxxxxx
Title:
