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EXHIBIT 4.5
SECURITIES HOLDERS
AND REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
▇▇▇▇ SPORTS HOLDINGS, L.L.C.
▇▇▇▇ SPORTS CORP.
AND THE INVESTORS
SIGNATORY HERETO
DATED AS OF AUGUST __, 2000
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TABLE OF CONTENTS
Section 1. Preemptive Rights.......................................1
Section 2. Transfers...............................................1
Section 3. Registration Rights.....................................4
Section 4. Operating Policies.....................................14
Section 5. Legends................................................14
Section 6. Specific Performance, Etc..............................15
Section 7. Termination............................................15
Section 8. Miscellaneous..........................................16
Section 9. Definitions............................................17
(i)
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SECURITIES HOLDERS AND REGISTRATION RIGHTS AGREEMENT
This SECURITIES HOLDERS AND REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is entered into as of August ___, 2000, by and among (i) ▇▇▇▇
Sports Corp., a Delaware corporation (the "Company"), (ii) ▇▇▇▇ Sports Holdings,
L.L.C., a Delaware limited liability company ("BSH"), Chartwell Managers LLC (as
to Section 2(a)(iv) hereof only) and (iii) the additional parties listed on
Schedule A attached hereto ("Investors"). BSH and Investors are sometimes
collectively referred to herein as the "Holders." Unless otherwise defined
herein, capitalized terms shall have the meanings set forth in Section 9 hereof.
WHEREAS, it is a condition precedent to the obligations of each of
▇▇▇▇ Sports, Inc. and Investors to close the transactions contemplated at the
Second Closing in the Investment Agreement among ▇▇▇▇ Sports, Inc., ▇▇▇▇ Sports
Corp., First Union Investors, Inc., GarMark Partners, L.P. and Fleet Corporate
Finance, Inc. dated as of August______ , 2000 (the "Investment Agreement") that
each of BSH and Investors shall have entered into this Agreement.
NOW THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, BSH and Investors
hereby agree as follows:
Section 1. Preemptive Rights. The Company shall not be permitted
to issue (an "Issuance") additional Equity Interests, other than pursuant to an
Exempt Issuance, unless, prior to such Issuance, the Company notifies each
Holder in writing of the Issuance and grants to each Holder the right (the
"Right") to subscribe for and purchase the proportion of such Equity Interests
so issued (at the same price and on the same terms as contemplated by the
Issuance) which equals the proportion that the number of shares of Common Stock
(assuming conversion of Convertible Securities into Common Stock) held by such
Holder bears to the total number of shares of Common Stock (assuming conversion
or exercise of all of the Convertible Securities into Common Stock). The Right
may be exercised by each Holder by written notice to the Company received by the
Company within 15 days after receipt of notice from the Company of the Issuance,
and the closing of the purchase and sale pursuant to the exercise of the Right
shall occur at least 10 days after the Company receives notice of the exercise
of the Right and prior to or concurrently with the closing of the Issuance.
Section 2. Transfers.
(a) Tag-Along Rights.
(i) If BSH (the "Selling Holder")
proposes to Transfer any shares of its Common Stock or other equity interests in
the Company (the "Tag Along Shares") or proposes to Transfer equity (a "BSH
Sale") of BSH to any Person (the "Transferee"), in a private sale (a "Tag Along
Sale"), the remaining Holders (the "Non-Selling Holders") that hold securities
of the type to be transferred or securities convertible into or exercisable for
such securities (or, in the case of a BSH Sale, Holders holding Common Stock or
Convertible Securities) shall have the right (the "Tag Along Right"), but not
the obligation, to tag-along, as to any securities of the same class as the Tag
Along Shares (or shares of Common Stock or
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Convertible Securities, in the case of a BSH Sale), to any such Tag Along Sale,
on the same terms and conditions as the Selling Holder(s) (or Equivalent Terms
(as defined) in the case of a BSH Sale) (the "Sale Terms"), pursuant to the
procedures set forth hereunder.
(ii) In the event any Selling Holder wishes to
Transfer Tag Along Shares, the Selling Holder shall first deliver a notice of
transfer to the Non-Selling Holders (the "Notice of Transfer"). Each Non-Selling
Holder may exercise its Tag Along Right by delivering to the Selling Holder in
the notice of the Notice of Transfer within twenty (20) calendar days after
receipt of the Notice of Transfer (the "Offer Period") a notice stating that
such Non-Selling Holder intends to exercise its tag-along rights and that it
desires to sell its own securities ("Tagging Shares") in accordance with the
Sale Terms (the "Tag Along Notice", and the Non-Selling Holder rendering such
Tag Along Notice, the "Tagging Holder"). If no Tag Along Notice is received by
the Selling Holders within the Offer Period, it shall be understood that the
Non-Selling Holders have waived its Tag-Along Rights hereunder and, subject to
paragraph 2(a) and 2(b), the Selling Holders shall be free to Transfer the Tag
Along Shares.
(iii) If one or more Tag Along Notices are
received by the Selling Holders within the respective term, then the Selling
Holders shall, for a period not to exceed fifteen (15) business days after the
end of the Offer Period, seek to obtain from the Transferee an offer, for the
consideration and on the same terms and conditions described in the Sale Terms
(or Equivalent Terms in the case of BSH sale), for all of the Tag Along Shares
and all of the Tagging Shares pertaining to the Tagging Holders. In the case the
prospective Transferee refuses to purchase Tagging Shares from a Tagging Holder,
then the Selling Holders, at their sole discretion, shall be entitled to either
(i) proceed to consummate the Tag Along Sale in a manner such that all of the
Selling Holders and the Tagging Holders participate in such Tag Along Sale pro
rata to their then current holdings of Shares of Common Stock (assuming
conversion of all Convertible Securities held by the Selling Holders and the
Tagging Holders into Common Stock) or (ii) refuse to consummate the Tag Along
Sale. For purposes of paragraph 2(b) "Equivalent Terms" shall be terms and
conditions for the sale of Common Stock that are substantially similar to those
received by the seller of BSH equity in such BSH Sale, as determined by BSH in
its reasonable discretion so long as such terms are no more favorable to the
Selling Holders.
(iv) Any Transfer by Chartwell Investments II,
L.P. or its Affiliates of BSH membership interests that triggers a tag-along
right in favor of members of BSH under Section 6.2 of the LLC Agreement shall
give the Holders a tag along right therewith with respect to their Common Stock
or Convertible Securities on Equivalent Terms as if such Holders were Members of
BSH and such Common Stock or Convertible Securities were BSH membership
interests.
(b) Drag-Along Rights.
(i) If BSH proposes to make a bona fide
Transfer of at least 85% of its Shares and Convertible Securities, in the
aggregate (assuming conversation of all Convertible Securities for purposes of
determining the percentage sold), to an Unaffiliated Third Party, BSH shall have
the right (a "Drag-Along Right"), exercisable upon 10 days' prior written notice
to
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Investors, to require each Investor to sell the same percentage of its Shares
and Convertible Securities to the Unaffiliated Third Party on the same terms and
conditions as BSH. Notwithstanding anything to the contrary, to the extent BSH
exercises its Drag-Along Right pursuant to this Section 2(b), the provisions of
Section 2(a) hereof shall not be applicable to the transaction that triggered
such Drag-Along Right. For purposes of this Section 2(b), "on the same terms and
conditions as the BSH sale" and similar phrases shall take into account all
consideration and economic rights received by BSH and its Affiliates in such
transaction other than reimbursement of expenses and payment of fees for
services actually rendered.
(ii) BSH shall deliver a written notice to
Investors setting forth the identity of, and the consideration per share to be
paid by, the Unaffiliated Third Party (the "Drag-Along Notice"). Not later than
15 days following the delivery of the Drag-Along Notice, Investors shall deliver
to BSH certificates representing all of the Shares and Convertible Securities
owned by it to be sold pursuant to this Section 2(b), accompanied by all
necessary documents and instructions to effect such transfer. Investors shall be
required only to represent and warrant, on a several but not joint basis, title
to their respective Shares or Convertible Securities, due authorization, no
conflicts, legal compliance and similar representations as to such Investor and
its status ("Investor's Representations"), and shall not be required to enter
into any covenants or agreements other than (i) indemnities as to such
Investor's Representations and other indemnities as to which the Unaffiliated
Third Party's recourse is solely to a pro rata escrowed hold back of the
purchase price determined by BSH; (ii) as to persons within such Investor who
have access to confidential information concerning BSH or its Affiliates
received from BSH or its subsidiaries to maintain the confidentiality thereof on
terms deemed reasonable to BSH in light of the nature of the transaction; and
(iii) the use of commercially reasonable efforts to take such actions as are
deemed necessary or appropriate by BSH to obtain regulatory consents or
approvals required to consummate the transaction.
(iii) If any Investor should fail to deliver
certificates representing all of the Shares and Convertible Securities owned by
it to be sold pursuant to this Section 2(b), Investor shall cause the books and
records of the Company to show that such Shares and Convertible Securities are
bound by the provisions of this Section 2 and that such Shares and Convertible
Securities shall be transferred only to the Unaffiliated Third Party upon
surrender for transfer by the holder thereof.
(iv) If, within 90 days after the delivery of
the Drag-Along Notice, such sale to the Unaffiliated Third Party is not
completed, BSH shall return to each Investor all certificates representing
Shares and Convertible Securities that such Investor delivered for sale pursuant
hereto.
(v) Any sale by Chartwell Investments II,
L.P. or its Affiliates of BSH membership interests that trigger drag along
obligations for members of BSH under Section 6.2(b) of the LLC Agreement shall
trigger drag along obligations of Holders hereunder with respect to their Common
Stock and Convertible Securities as if such Holders were members of BSH and such
Common Stock or Convertible Securities were BSH membership interests.
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Section 3. Registration Rights.
(a) Registration Rights.
(i) Right to Piggyback. Subject to the last
sentence of this subsection (i), whenever, after an initial public offering of
Common Stock by the Company, the Company proposes to register any Common Stock
under the Act and the registration form to be used may be used for the
registration of the Registrable Securities (other than a registration statement
on Forms S-4 or S-8 or any similar successor forms) (a "Piggyback Registration"
or a "Registration"), the Company will give written notice to all holders of
Registrable Securities, at least 30 days prior to the anticipated filing date,
of its intention to effect such a Registration, which notice will specify the
proposed offering price, the kind and number of securities proposed to be
registered, the distribution arrangements and such other information that at the
time would be appropriate to include in such notice, and will, subject to
subsection (a)(ii) below, include in such Piggyback Registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 20 business days after the delivery of the Company's
notice; provided, however, that if, at any time after giving 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 register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each holder and, thereupon, (A) in the case of a determination
not to register, the Company shall be relieved of its obligation to register any
Registrable Securities under this Section 3(a)(i) in connection with such
registration (but not from its obligation to pay the registration expenses
incurred in connection therewith) and (B) in the case of a determination to
delay registering, the Company shall be permitted to delay registering any
Registrable Securities under this Section 3(a)(i) during the period that the
registration of such other securities included in such Registration Statement is
delayed. The Company further agrees to supplement or amend a Registration
Statement if required by applicable laws, rules or regulations or by the
instructions applicable to the registration form used by the Company for such
Registration Statement. Each Holder shall be permitted to withdraw all or any
part of such Holder's Registrable Securities from a registration at any time
prior to the effective date of the Registration Statement by notifying the
Company of such withdrawal not later than two business days prior to such
effective date. Except as may otherwise be provided in this Agreement,
Registrable Securities with respect to which such request for registration has
been received will be registered by the Company and offered to the public in a
Piggyback Registration pursuant to this Section 3 on the terms and conditions at
least as favorable as those applicable to the registration of shares of Common
Stock to be sold by the Company and by any other Person selling under such
Piggyback Registration (including the right to participate in an initial public
offering of Common Stock of the Company).
(ii) Priority on Piggyback Registrations. If
the managing underwriter or underwriters, if any, advise the holders of
Registrable Securities in writing that in its or their reasonable opinion or, in
the case of a Piggyback Registration not being underwritten, the Company shall
reasonably determine (and notify the holders of Registrable Securities of such
determination), after consultation with an investment banker of nationally
recognized standing,
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that the number or kind of securities proposed to be sold in such registration
(including Registrable Securities to be included pursuant to subsection (a)(i)
above) will adversely affect the success of such offering, the Company will
include in such registration the number of securities, if any, which, in the
opinion of such underwriter or underwriters, or the Company, as the case may be,
can be sold as follows: (x) first, the shares the Company proposes to sell and
(y) second, the Registrable Securities and other shares of Common Stock
requested to be included in such registration by the holders thereof entitled to
participate in such registration. To the extent that the privilege of including
Registrable Securities or other shares of Common Stock in any Piggyback
Registration must be allocated among the holders thereof, the allocation shall
be made pro rata based on the number of shares of Common Stock that each such
participant shall have requested to include therein.
(iii) Selection of Underwriters. If any
Piggyback Registration is an underwritten offering, the Company will select a
managing underwriter or underwriters to administer the offering, which managing
underwriter or underwriters will be of nationally recognized standing.
(iv) Expenses. In each Piggyback
Registration, the Company shall pay up to $15,000 in fees and expenses
of one counsel for all holders of Registrable Securities included therein.
(b) [RESERVED]
(c) Registration Procedures. With respect to any
Piggyback Registration, the Company will, subject to subsection (3)(a)(ii),
above, as expeditiously as practicable:
(i) prepare and file with the SEC, within 90
days after mailing the applicable notice, a Registration Statement or
Registration Statements relating to the applicable Registration on any
appropriate form under the Act, which form shall be available for the sale of
the Registrable Securities in accordance with the intended method or methods of
distribution thereof; provided, however, that the Company will include in any
Registration Statement on a form other than Form S-1 all information that the
holders of the Registrable Securities so to be registered shall reasonably
request, including all financial statements required by the SEC to be filed with
Form S-1, cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc. ("NASD"), and use its
reasonable best efforts to cause such Registration Statement to become
effective; provided further, that before filing a Registration Statement or
Prospectus related thereto or any amendments or supplements thereto, the Company
will furnish to the holders of the Registrable Securities covered by such
Registration Statement and the underwriters, if any, copies of all such
documents proposed to be filed, which documents will be subject to the
reasonable review of such holders and underwriters and their respective counsel;
(ii) prepare and file with the SEC such
amendments and post-effective amendments to the Registration Statement as may be
necessary to keep each Registration Statement effective for the applicable
period, or such shorter period which will terminate when all Registrable
Securities covered by such Registration Statement have been sold; cause each
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Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act; and comply with the
provisions of the Act with respect to the disposition of all securities covered
by such Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof set forth
in such Registration Statement or supplement to the Prospectus; the Company
shall not be deemed to have used its reasonable best efforts to keep a
Registration Statement effective during the applicable period if it voluntarily
takes any action that would result in selling holders of the Registrable
Securities covered thereby not being able to sell such Registrable Securities
during that period unless such action is required under applicable law,
provided, however, that the foregoing shall not apply to actions taken by the
Company in good faith and for valid business reasons, including without
limitation the acquisition or divestiture of assets, so long as the Company
promptly thereafter complies with the requirements of subsection (xi) of this
subsection (c), if applicable;
(iii) notify the selling holders of Registrable
Securities and the managing underwriters, if any, promptly, and (if requested by
any such Person) confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to the Registration Statement or any post-effective amendment, when the
same has become effective, (B) of any request by the SEC for amendments or
supplements to the Registration Statement or the Prospectus or for additional
information, (C) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose, (D) if at any time the representations and warranties of the
Company contemplated by subsection (xiv) below cease to be true and correct, (E)
of the receipt by the Company of any notification with respect to the suspension
of the qualification of the Registrable Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose and (F) of
the happening of any event which makes any statement made in the Registration
Statement, the Prospectus or any document incorporated therein by reference
untrue or which requires the making of any changes in the Registration
Statement, the Prospectus or any document incorporated therein by reference in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading;
(iv) use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement at the earliest possible moment;
(v) if requested by the managing underwriter
or underwriters, if any, or a holder of Registrable Securities being sold in
connection with an underwritten offering, promptly incorporate in a Prospectus
supplement or post-effective amendment such information as the managing
underwriters and the holders of a majority of the Registrable Securities being
sold agree should be included therein relating to the plan of distribution with
respect to such Registrable Securities, including, without limitation,
information with respect to the number of Registrable Securities being sold to
such underwriters, the purchase price being paid therefor by such underwriters
and with respect to any other terms of the underwritten (or best efforts
underwritten) offering of the Registrable Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment promptly after being
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notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(vi) furnish to each selling holder of
Registrable Securities and each managing underwriter, without charge, at least
one signed copy of the Registration Statement and any amendment or supplement
thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those incorporated
by reference);
(vii) deliver to each selling holder of
Registrable Securities and the underwriters, if any, without charge, as many
copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such selling holder of Registrable Securities
and underwriters may reasonably request; the Company consents to the use of each
Prospectus or any amendment or supplement thereto by each of the selling holders
of Registrable Securities and the underwriters, if any, in connection with the
offer and sale of the Registrable Securities covered by such Prospectus or any
amendment or supplement thereto;
(viii) prior to any public offering of
Registrable Securities, register or qualify or cooperate with the selling
holders of Registrable Securities, the underwriters, if any, and their
respective counsel in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or "blue sky"
laws of such jurisdictions as any seller or underwriter reasonably requests in
writing, and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
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 that would subject it to general
service of process in any such jurisdiction where it is not then so subject,
unless this limitation would materially adversely impair the ability of
Investors to sell the Registrable Securities covered by the Registration
Statement;
(ix) cooperate with the selling holders of
Registrable Securities and the managing underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends and to be in such
denominations and registered in such names as the managing underwriters may
request at least two business days prior to any sale of Registrable Securities
to the underwriters;
(x) use its reasonable best efforts to cause
the Registrable Securities covered by the applicable Registration Statement to
be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof or the
underwriters, if any, to consummate the disposition of such Registrable
Securities;
(xi) upon the occurrence of any event
contemplated by subsection (iii)(F) above, prepare a supplement or
post-effective amendment to the Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material
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fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(xii) cause all Registrable Securities covered
by any Registration Statement to be listed on each securities exchange on which
similar securities issued by the Company are then listed, or cause such
Registrable Securities to be authorized for trading on the Nasdaq National
Market if any similar securities issued by the Company are then so authorized,
if requested by the holders of a majority of such Registrable Securities or the
managing underwriters, if any;
(xiii) provide a CUSIP number for all
Registrable Securities, not later than the effective date of the applicable
Registration Statement;
(xiv) enter into such agreements (including an
underwriting agreement) and take all such other actions in connection therewith
in order to expedite or facilitate the disposition of such Registrable
Securities and in such connection, upon the request of the holders of a majority
of the Common Stock participating in any Registration, (A) make such
representations and warranties to the holders of such Common Stock and the
underwriters, if any, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings; (B) obtain opinions of
counsel to the Company and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the holders of a majority of the Common Stock being
sold) addressed to each selling holder and the underwriters, if any, covering
the matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such holders and
underwriters; (C) obtain "comfort" or "procedures" letters and updates thereof
from the Company's independent certified public accountants addressed to the
selling holders of Common Stock and the underwriters, if any, such letters to be
in customary form and covering matters of the type customarily covered in
"comfort" or "procedures" letters to underwriters in connection with primary
underwritten offerings; (D) if an underwriting agreement is entered into, the
same shall set forth in full the indemnification provisions and procedures set
forth in subsection (f) below with respect to all parties to be indemnified
pursuant to said subsection; and (E) the Company shall deliver such documents
and certificates as may be requested by the holders of a majority of the Common
Stock being sold and the managing underwriters, if any, to evidence compliance
with subsection (iii)(F) above and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the Company;
(xv) make available for inspection by a
representative of Investors, any underwriter participating in any disposition
pursuant to such Registration, and any attorney or accountant retained by the
sellers or underwriter, all relevant financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors and employees to supply all information, reasonably
requested by any such representative, underwriter, attorney or accountant in
connection with such Registration Statement; provided, however, that any
records, information or documents that are designated by the Company in writing
as confidential shall be kept confidential by such Persons unless
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disclosure of such records, information or documents is required by court or
administrative order or any regulatory body having jurisdiction;
(xvi) otherwise use its reasonable best efforts
to comply with all applicable rules and regulations of the SEC, and make
generally available to its security holders, earnings statements satisfying the
provisions of Section 11(a) of the Act, no later than 45 days after the end of
any 12-month period (or 90 days, if such period is a fiscal year) (A) commencing
at the end of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm or best efforts underwritten offering, or (B) if not sold
to underwriters in such an offering, beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of the
Registration Statement, which statements shall cover said 12-month periods; and
(xvii) promptly prior to the filing of any
document that is to be filed as an exhibit or incorporated by reference into any
Registration Statement or Prospectus (after initial filing of the Registration
Statement), provide copies of such document to counsel to the selling holders of
Registrable Securities and to the managing underwriters, if any, make the
Company's representatives available for discussion of such document and make
such changes in such document prior to the filing thereof as counsel for such
selling holders or underwriters may reasonably request.
The Company may require each seller of Registrable Securities as to
which any Registration is being effected to furnish to the Company such
information regarding the proposed distribution of such securities as the
Company may from time to time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in subsection (iii)(F) of this
subsection (c), such holder will forthwith discontinue disposition of
Registrable Securities pursuant to the Registration Statement until such
holder's receipt of copies of the supplemented or amended Prospectus as
contemplated by subsection (xi) of this subsection (c), or until it is advised
in writing (the "Advice") by the Company that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus, and, if so directed by the
Company, such holder will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such holder's possession, of
the Prospectus covering such Registrable Securities current at the time of
receipt of such notice. In the event the Company shall give any such notice, the
time periods referred to in subsection (ii) of this subsection (c) shall be
extended by the number of days during the period from and including the date of
the giving of such notice to and including the date when each seller of
Registrable Securities covered by such Registration Statement shall have
received the copies of the supplemented or amended prospectus contemplated by
subsection (xi) of this subsection (c) or the Advice.
(d) Restrictions on Public Sale.
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(i) Public Sale by Holders of Registrable
Securities. To the extent not inconsistent with applicable law, each party whose
Registrable Securities are included in a Registration Statement hereunder, if
requested by the managing underwriter or underwriters for such Registration,
agrees not to effect any public sale or distribution of Registrable Securities,
including a sale pursuant to Rule 144, during the 10 business days prior to, and
during the 180-day period (or such shorter period as may be agreed to by such
underwriters) beginning on, the effective date of a Registration Statement
pursuant to such Registration (except as part of such Registration).
(ii) Public Sale by the Company and Others.
If requested by the managing underwriter or underwriters for any underwritten
Registration, neither the Company nor Investor will effect any public sale or
distribution of Common Stock for its own account (or securities convertible into
or exchangeable or exercisable for Common Stock) during the 10 business days
prior to, and during the 180-day period beginning on, the effective date of such
Registration, except pursuant to such Registration.
(iii) Other Registrations. If the Company has
previously filed a Registration Statement with respect to Registrable
Securities, and if such previous Registration has not been withdrawn or
abandoned, the Company will not file or cause to be effected any other
registration of any of its Common Stock (or securities convertible into or
exchangeable for, or options to purchase, Common Stock) under the Act (except on
Forms S-4 or S-8 or any similar successor form), whether on its own behalf or at
the request of any holder or holders of Common Stock (or securities convertible
into or exchangeable or exercisable for Common Stock), until a period of at
least 90 days has elapsed from the effective date of such previous Registration;
provided, however, that if the holders of 50% or more of the aggregate number of
Registrable Securities included in such previous Registration shall agree in
writing, such period may be shortened by the Company but not to a period shorter
than one month.
(e) Registration Expenses. All expenses incident to
the Company's performance of or compliance with this Agreement will be borne by
the Company, including, without limitation, all registration and filing fees,
the fees and expenses of the counsel and accountants for the Company (including
the expenses of any "comfort" or "procedures" letters and special audits
required by or incident to the performance of such persons), all other costs and
expenses of the Company incident to the preparation, printing and filing under
the Act of the Registration Statement (and all amendments and supplements
thereto) and furnishing copies thereof and of the Prospectus included therein,
the costs and expenses incurred by the Company in connection with the
qualification of the Registrable Securities under the state securities or "blue
sky" laws of various jurisdictions, the costs and expenses associated with
filings required to be made with the NASD (including, if applicable, the fees
and expenses of any "qualified independent underwriter" and its counsel as may
be required by the rules and regulations of the NASD), the costs and expenses of
listing the Registrable Securities for trading on a national securities exchange
or authorizing them for trading on the Nasdaq National Market and all other
costs and expenses incurred by the Company in connection with any Registration
hereunder; provided, however, that, except as otherwise provided in subsection
(a)(iv) above, the Company shall not bear the costs and expenses of any Investor
or any other holder of Registrable Securities
-10-
13
for underwriters' commissions or expenses, brokerage fees, transfer taxes, or
the fees and expenses of any counsel, accountants or other representative
retained by any Investor or any other holder of Registrable Securities.
(f) Indemnification.
(i) Indemnification by the Company. The
Company agrees to indemnify and hold harmless (x) each Holder and (y) each
Person, if any, who controls (within the meaning of Section 15 of the Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") any Holder (any of the Persons referred to in this clause (y) being
hereinafter referred to as a "controlling person") and (z) the respective
officers, directors, partners, employees, representatives and agents of any
Holder or any controlling person (any person referred to in clause (x), (y) or
(z) may hereinafter be referred to as an "Indemnified Holder"), to the fullest
extent lawful, from and against any and all losses, claims, damages, liabilities
and judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus (or any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or any violation by the Company of any
rule or regulation promulgated pursuant to any Federal, state or common law rule
or regulation including, without limitation, the Securities Act, except, with
respect to any Holder, insofar as such losses, claims, damages, liabilities or
judgments (1) are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished in writing to the
Company by such Holder expressly for use therein or (2) with respect to any
preliminary prospectus, result from the fact that such Holder sold Common Stock
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, as amended or
supplemented, if the Company shall have previously furnished copies thereof to
the Holders in accordance with this Agreement and the final prospectus, as
amended or supplemented, would have corrected such untrue statement or omission.
In case any action shall be brought against any of the Indemnified
Holders or any Person controlling any of the Indemnified Holders, based upon any
Registration Statement or Prospectus, or any amendment or supplement thereto,
and with respect to which indemnity may be sought against the Company, such
Indemnified Holder (or the Indemnified Holder controlled by such controlling
person) shall promptly notify the Company in writing and the Company shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Holder and payment of all fees and expenses.
Such Indemnified Holder or any such controlling person shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be paid by such
Indemnified Holder, unless (x) the employment of such counsel shall have been
specifically authorized in writing by the Company, (y) the Company shall have
failed to assume the defense and employ counsel or (z) the named parties to any
such action (including any impleaded parties) include both such Indemnified
Holder or such controlling person and the Company and such Indemnified Holder or
such controlling person shall have been advised by such counsel that it
-11-
14
would be inappropriate for the same counsel to represent the Indemnified Holder
and the Company (in which case the Company shall not have the right to assume
the defense of such action on behalf of such Indemnified Holder or such
controlling person, it being understood, however, that the Company shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for the
Indemnified Holders and all controlling persons, which firm shall be designated
in writing by the Indemnified Holders and that all such fees and expenses
reasonably incurred shall be reimbursed as they are incurred). The Company shall
not be liable for any settlement of any such action effected without the written
consent of the Company, but if settled with the written consent of the Company,
the Company agrees to indemnify and hold harmless any Indemnified Holder and any
such controlling person from and against any amounts payable pursuant to such
written consent in connection with such settlement. Notwithstanding the
immediately preceding sentence, if in any case where the fees and expenses of
counsel are at the expense of the Company and an Indemnified Holder shall have
requested the Company to reimburse such Indemnified Holder for such fees and
expenses of counsel as incurred, the Company agrees that they shall be liable
for any settlement of any action effected without their written consent if (x)
such settlement is entered into more than 30 business days after the receipt by
the Company of the aforesaid request and (y) the Company shall have failed to
reimburse such Indemnified Holder in accordance with such request for
reimbursement prior to the date of such settlement. The Company shall not,
without the prior written consent of such Indemnified Holder, effect any
settlement of any pending or threatened proceeding in respect of which such
Indemnified Holder is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Holder, unless such settlement includes an
unconditional release of such Indemnified Holder from all liability on claims
that are the subject matter of such proceeding at no cost to such Indemnified
Holder.
(ii) Indemnification by Holders. Each Holder
agrees to indemnify and hold harmless the Company and any Person controlling the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
the each of the Indemnified Holders, but only with reference to information
relating to such Holder that was furnished in writing by such Holder expressly
for use in any Registration Statement. In no event shall the liability of any
selling Holder hereunder be greater in amount than the dollar amount of the
proceeds received by such Holder upon the sale of the Common Stock giving rise
to such indemnification obligation.
(iii) Contribution. If the indemnification
provided for in this Section 3(f) is unavailable to an indemnified party in
respect of any losses, claims, damages, liabilities or judgments referred to
therein, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities and judgments in such
proportion as is appropriate to reflect the relative fault of the Company, on
the one hand, and such Holder, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and such
Holder, on the other hand, shall be
-12-
15
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, on the one hand,
or such Holder, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 3(f)(iii) were determined by
pro rata allocation (even if the Holders 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 the immediately preceding paragraph. The
losses, claims, damages, liabilities or judgments of an indemnified party
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim prior to the indemnifying party's
assumption of the defense thereof or subsequent thereto to the extent permitted
by the second sentence of the second paragraph of Section 3(f)(i) hereof.
Notwithstanding the provisions of this Section 3(f), none of the Holders (and
their related Indemnified Holders) shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the net proceeds received
by such Holder with respect to the sale of shares of Common Stock 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. 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'
obligations to contribute pursuant to this Section 3(f)(iii) are several in
proportion to the respective amount of Common Stock sold by each of the Holders
pursuant to any Registration and not joint.
(g) Rule 144 or 144A. The Company agrees that at
all times after it has filed a Registration Statement pursuant to the
requirements of the Act relating to any class of equity securities of the
Company, it will file in a timely manner all reports required to be filed by it
pursuant to the Act and the Exchange Act and will take such further action as
any holder of Registrable Securities may reasonably request in order that such
holder may effect sales of Shares pursuant to Rule 144. At any reasonable time
and upon request of any Investor, the Company will furnish such Investor with
such information as may be necessary to enable such Investor to effect sales of
Common Stock pursuant to Rule 144 under the Act and will deliver to such
Investor a written statement as to whether the Company has complied with such
requirements. Notwithstanding the foregoing, the Company may deregister any
class of its equity securities under Section 12 of the Exchange Act or suspend
its duty to file reports with respect to any class of its securities pursuant to
Section 15(d) of the Exchange Act if it is then permitted to do so pursuant to
the Exchange Act and the rules and regulations thereunder.
(h) Participation in Underwritten Registrations. No
Holder may participate in any underwritten Registration hereunder unless such
Holder (i) agrees to sell its Shares of Common Stock on the basis provided in
any underwriting arrangements, and (ii) accurately completes in a timely manner
and executes all questionnaires, powers of attorney, underwriting
-13-
16
agreements, lock-up agreements and other documents customarily required under
the terms of such underwriting arrangements.
(i) Other Registration Rights. The Company will not
grant to any Person any piggyback registration rights with respect to the Common
Stock of the Company other than piggyback registration rights that are not
inconsistent with the terms of this Section 3.
(j) Termination. Investors rights pursuant to this
Section 3 shall terminate upon the last to occur of the following: (i) the third
anniversary of an initial Public Offering of the Common Stock, (ii) such time as
Investors are eligible to sell all of its Shares under Rule 144(k) under the
Act, and (iii) such time as the Company has established a market capitalization
of at least $150,000,000, having at least $75,000,000 of publicly traded Common
Stock. The provisions of this Section 3 shall terminate as to any Registrable
Security on the date such Registration Security is sold pursuant to an effective
Registration Statement or pursuant to Rule 144 (or any similar provision then in
force under the Act).
Section 4. Book and Records. The Company shall keep the books
and records of the Company in accordance with generally accepted accounting
principles as applied in the United States. The Company shall furnish each
Holder promptly after transmission, copies of (x) all reports, officers'
certificates, and other information furnished by the Company to equity holders
of the Company generally and (y) all reports filed by the Company with any
securities exchange or the SEC.
Section 5. Legends.
(a) The parties hereto agree that each certificate
representing shares of Common Stock or Convertible Securities shall bear the
following legends until such time as the same are no longer applicable:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED
HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO THE TERMS OF, AND ARE ENTITLED TO THE BENEFITS SET FORTH
IN, A SECURITIES HOLDERS AND REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST ___, 2000, A COPY OF WHICH IS ON FILE AT
THE OFFICE OF ▇▇▇▇ SPORTS CORP. ▇▇▇▇ SPORTS CORP. WILL
FURNISH A COPY OF SUCH SECURITIES HOLDERS AND REGISTRATION
RIGHTS AGREEMENT TO THE RECORD HOLDER HEREOF
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17
WITHOUT CHARGE UPON WRITTEN REQUEST TO ▇▇▇▇ SPORTS CORP. AT
ITS PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE."
Section 6. Specific Performance, Etc. The Company,
each Investor and BSH, in addition to being entitled to exercise all rights
provided herein, in the Company's Certificate of Incorporation or granted by
law, including recovery of damages, will be entitled to specific performance of
its rights under this Agreement. The Company, each Investor and BSH agree that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agree to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
Section 7. Termination. Except where an earlier time is
provided herein, the rights and obligations of the parties other than those set
forth in Section 3 (which shall survive for the periods indicated therein) shall
terminate upon a Termination Event.
-15-
18
Section 8. Miscellaneous.
(a) Notices. All notices and other communications
provided for or permitted hereunder shall be in writing and shall be deemed to
have been duly given if delivered personally or sent by telecopy, overnight
courier or registered or certified mail (return receipt requested) postage
prepaid to the parties at the following addresses (or such other address for any
party as shall be specified by like notice, provided, however, that notices of a
change of address shall be effective only upon receipt thereof). Notice sent by
mail shall be effective five days after mailing.
(i) If to the Company at:
▇▇▇▇ Sports Corp.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to any Holders to the address indicated
on Schedule A adjacent to such Holder's
name.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers of or consents to departures from the
provisions hereof may not be given unless approved by the Company in writing and
the Company has obtained the written consent of BSH and holders of not less than
a majority of the shares of Common Stock (assuming conversion of all Convertible
Securities) subject to this Agreement which are not owned by BSH. No action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as
waiver of any preceding or succeeding breach and no failure by any party to
exercise any right or privilege hereunder shall be deemed a waiver of such
party's rights or privileges hereunder or shall be deemed a waiver of such
party's rights to exercise the same at any subsequent time or times hereunder.
-16-
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(c) Successors and Assigns; Third Party Beneficiaries.
This Agreement shall inure to the benefit of and be binding upon the parties and
their respective successors and permitted assigns.
(d) Counterparts. This Agreement may be executed in
one or more counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same
instrument.
(e) Headings. The headings in this Agreement are for
convenience of reference only and shall not affect the meaning of any provision
of this Agreement.
(f) Governing Law. The validity, performance,
construction and effect of this Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed therein. The parties hereto agree to submit to the
jurisdiction of the courts of the State of Delaware in any action or proceeding
arising out of or relating to this Agreement.
(g) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(h) Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings other than those set forth or
referred to herein with respect to the registration rights granted by the
Company with respect to the Registrable Securities. This Agreement supersedes
all prior agreements and understandings between the parties with respect to such
subject matter.
Section 9. Definitions. The following terms, as used herein,
have the following respective meanings:
"Affiliate" shall mean (i) any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company, (ii) any spouse, immediate family member or other relative who has the
same principal residence of any person described in clause (i) above, (iii) any
trust in which any such Persons described in clause (i) or (ii) above has a
beneficial interest and (iv) any corporation or other organization of which any
such Persons described in clause (i) or (ii) above collectively own more than
50% of the equity or voting power of such entity; provided, however, that in no
event shall any Investor be deemed to be an Affiliate of the Company. For
purposes of this definition, ownership of 10% or more of the voting common
equity of a Person shall be deemed to be control of such Person.
"Common Stock" shall mean the shares of common stock, par value $.01
per share, of the Company and all other classes of the Company's voting or
non-voting common stock which may exist on the date of this Agreement or which
may be created in the future.
-17-
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"Convertible Securities" shall mean securities convertible into or
exchangeable for, or options or warrants to purchase, Common Stock.
"Equity Interests" means with respect to any Person, any capital stock
of such Person or membership interests, partnership interests (whether general
or limited) or other equity interests in such Person, regardless of type, class,
preference or designation, and all warrants, options, purchase rights,
conversion or exchange rights, voting rights, calls or claims of any character
with respect thereto, outstanding from time to time.
"Exempt Issuance" shall mean (i) any issuance of Equity Interests to
officers, employees, consultants or directors of the Company or any Subsidiary
thereof (other than issuances to employees, officers or directors of Chartwell
Managers LLC) primarily for compensatory purposes, (ii) any issuance, pro rata
to all holders of Common Stock, of Equity Interests as a dividend on,
subdivision of, or other distribution in respect of, the Common Stock, (iii) any
issuance of Common Stock to Holders upon exercise of the Warrants, (iv) any
issuance of Equity Interests which are sold in an offering registered under the
Securities Act of 1933, as amended (the "Act") (v) the issuance of Equity
Interests as consideration for the purchase price of assets or businesses being
acquired by the Company or any of its Subsidiaries, (vi) the issuance of
preferred stock which is not convertible into Common Stock, and (vii) the
issuance of nominally priced Equity Interests in conjunction with the issuance
of debt or nonconvertible preferred stock.
"Initial Shares" shall mean the Shares of Common Stock owned by
Investors and BSH as of the date hereof.
"LLC Agreement" means the Amended and Restated Limited Liability
Company Agreement of ▇▇▇▇ Sports Holdings, L.L.C.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Prospectus" shall mean the Prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and all other amendments and supplements
to the Prospectus, including post-effective amendments, and all material
incorporated by reference in such Prospectus.
"Registrable Securities" means the Shares, but with respect to any
Share, only until such time as such Share (i) has been effectively registered
under the Act and disposed of in accordance with the Registration Statement
covering it or (ii) has been sold to the public pursuant to Rule 144 (or any
similar provision then in force) under the Act and the legend referred to in
Section 5 has been removed or the Company has authorized the removal thereof
from the certificate representing such Share.
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21
"Registration Statement" means any registration statement of the
Company filed pursuant to the Act and which covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including the
Prospectus amendments and supplements to such Registration Statement, including
post-effective amendments, and all exhibits and all material incorporated by
reference in such Registration Statement.
"Related Party" with respect to BHS shall mean: (i) any partner,
Member, controlling Holder, Subsidiary or Family Member (in the case of an
individual) of BSH or (ii) any trust, corporation, partnership or other entity,
the beneficiaries, Holders, partners, Member, owners or Persons directly or
indirectly beneficially holding a 51% or more controlling interest of which
consist of BSH and/or such other Persons referred to in the immediately
preceding clause (i).
"Shares" shall mean the Initial Shares plus (i) any additional shares
of Common Stock issued to holders of Shares as part of a dividend on,
subdivision of, or other distribution in respect of Common Stock that is made
pro rata to all holders of Common Stock, (ii) any additional shares of Common
Stock issued to holders of Shares or Convertible Securities pursuant Section 1
hereof, and (iii) any additional shares of Common Stock issued to holders of
Convertible Securities upon conversion of such Convertible Security.
"Subsidiary" shall mean with respect to any Person, (i) a corporation a
majority of whose capital stock with voting power, under ordinary circumstances,
to elect directors is at the time, directly or indirectly, owned by such Person,
by one or more Subsidiaries of such Person or by such Person and one or more
Subsidiaries thereof or (ii) any other Person (other than a corporation) in
which such Person, one or more Subsidiaries thereof or such Person and one or
more Subsidiaries thereof, directly or indirectly, at the date of determination
thereof has at least a majority ownership interest and the power to direct the
policies, management and affairs thereof.
"Termination Event" shall mean a Public Offering of Common Stock
pursuant to an effective registration statement under the Act covering the offer
and sale of Common Stock for the account of the Company, in which the aggregate
proceeds to the Company equal or exceed $50,000,000.
"Transfer" means to sell, exchange, transfer, assign, pledge,
hypothecate or to otherwise dispose.
"Unaffiliated Third Party" means any Person who, immediately prior to
the contemplated transaction (i) is not owned, directly or indirectly, by
Chartwell Investments II, L.P. and all of its Affiliates in an amount exceeding
3% of the equity of such Person ("Subject Entity"), (ii) is not controlling,
controlled by or under common control with any such Subject Entity, (iii) is not
the spouse or descendent (by birth or adoption) of any such Subject Entity or a
trust for the benefit of such Subject Entity and/or such other Persons and (iv)
is neither a portfolio company of any such Subject Entity nor a subsidiary of
any portfolio company of any such Subject Entity.
"Warrants" means the Warrants to purchase an aggregate of 63,250 shares
of Common Stock of BSC originally issued August ___ , 2000 to Investors.
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[SIGNATURE PAGES FOLLOW]
-20-
23
IN WITNESS WHEREOF, the parties have executed this Holders and
Registration Rights Agreement as of the date first above written.
▇▇▇▇ SPORTS, CORP.
By:
----------------------------------------------------
Name:
--------------------------------------------------
Title:
-------------------------------------------------
The undersigned agrees to the provisions of Section 2(a)(iv) hereof.
CHARTWELL MANAGERS LLC
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
24
IN WITNESS WHEREOF, the parties have executed this Holders and
Registration Rights Agreement as of the date first above written.
▇▇▇▇ SPORTS HOLDINGS, L.L.C.
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
Number of shares of Common Stock held:
-------------------------------------------------
-2-
25
IN WITNESS WHEREOF, the parties have executed this Holders and
Registration Rights Agreement as of the date first above written.
FIRST UNION INVESTORS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Warrants to purchase __________________ shares
of Common Stock
-3-
26
IN WITNESS WHEREOF, the parties have executed this Holders and
Registration Rights Agreement as of the date first above written.
GARMARK ADVISORS LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Warrants to purchase __________________ shares
of Common Stock
-4
27
IN WITNESS WHEREOF, the parties have executed this Holders and
Registration Rights Agreement as of the date first above written.
FLEET CORPORATE FINANCE, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Warrants to purchase __________________ shares
of Common Stock
-5-
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SCHEDULE A
-----------------------------------------------------------------------------------------------
Holder Address
------- ----------
----------- ------------------------------------------- ---------------------------------------
----------- ------------------------------------------- ---------------------------------------
1 ▇▇▇▇ Sports Holdings, L.L.C.
----------- ------------------------------------------- ---------------------------------------
2 First Union Investors, Inc.
----------- ------------------------------------------- ---------------------------------------
3 Garmark Advisors LLC
----------- ------------------------------------------- ---------------------------------------
4 Fleet Corporate Finance, Inc.
-----------------------------------------------------------------------------------------------
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