REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is made as of
May 6, 2001, by and between Saf-T-Hammer Corporation, a Nevada corporation (the
"Company"), with headquarters located at 00000 X. Xxxxxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, and Xxxxxx Xxxxx, 00000 00xx Xxx. X., Xxxx, XX 00000
(the "Rights Holder").
RECITALS
A. The Company and Rights Holder have entered into a Promissory Note &
Loan Agreement dated as of May 6, 2001 (the "Note"), pursuant to which the
Rights Holder has loaned the Company $5 million (the "Loan") and pursuant to
which the Company has issued the Rights Holder a Common Stock Purchase Warrant
dated of even date herewith (the "Warrant"). The Warrant authorizes the Rights
Holder to acquire shares of the Common Stock of the Company (the "Common
Stock").
B. To induce the Rights Holder to make the Loan, the Company has agreed
to provide certain registration rights under the Securities Act of 1933, as
amended, and the rules and regulations thereunder, or any similar successor
statute (collectively, the "Securities Act"), and applicable state securities
laws.
C. The parties desire to set forth in this Agreement all of the terms
and conditions relating to the registration rights applicable to the Registrable
Shares (as defined below).
NOW, THEREFORE, the parties agree as follows:
1. Definitions. As used in this Agreement, the following terms have the
following meanings:
Business Day: Each day other than a Saturday, a Sunday or any other day
on which commercial banks in New York City are authorized or required by law or
executive order to close.
Closing: The consummation of the SW Transaction (as defined in the
Note).
Commission: The Securities and Exchange Commission and any successor
federal agency having similar powers.
Exchange Act: The Securities Exchange Act of 1934, as amended or any
similar replacement federal statute, as at the time in effect, and any reference
to a particular section of such Act shall include a reference to the comparable
section, if any, of any such similar replacement federal statute.
NASD: National Association of Securities Dealers, Inc.
NASDAQ: The NASDAQ Stock Market, Inc.
Person: An individual, partnership, joint venture, corporation, trust,
unincorporated organization or government or any department or agency thereof.
Prospectus: The prospectus included in any Registration Statement,
including all amendments (including, but not limited to, post-effective
amendments) and supplements to such prospectus and all material incorporated by
reference in such prospectus.
Registrable Shares: Those certain shares of Common Stock held by the
Rights Holder that are to be issued upon conversion of any proportion of the
Warrant. Any particular Registrable Shares shall cease to be Registrable Shares
when (x) a Registration Statement with respect to the sale of such Registrable
Shares shall have become effective under the Securities Act and such Registrable
Shares shall have been disposed of in accordance with such Registration
Statement, (y) such Registrable Shares shall have been distributed to the public
pursuant to Rule 144 (or any successor provision) under the Securities Act or
(z) such Registrable Shares shall have ceased to be outstanding.
Registration Expenses: All expenses incurred by the Company in
complying with ARTICLE 2 hereof, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel for the
Company, reasonable fees and disbursements of special counsel for the Rights
Holder, blue sky fees and expenses and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company which shall be paid in any event by the
Company).
Registration Statement: A registration statement of the Company
covering Registrable Shares pursuant to this Agreement, including the
Prospectus, all amendments (including, but not limited to, post-effective
amendments) and supplements to such registration statement, all exhibits to such
registration statement and all material incorporated by reference in such
registration statement.
Securities Act: The Securities Act of 1933, as amended or any similar
replacement federal statute, as at the time in effect, and any reference to a
particular section of such Act shall include a reference to the comparable
section, if any, of any such similar replacement federal statute.
Selling Expenses: All underwriting discounts and selling commissions
applicable to the sale of the Company's capital stock.
2. Mandatory Registration.
2.1 Mandatory Registration. The Company shall prepare, and, on or prior
to forty-five (45) days after the date of the Closing (the "Filing Date"), file
with the SEC a Registration Statement on Form SB-2 (or, if Form SB-2 is not then
available, on such form of Registration Statement as is then available to effect
a registration of all of the Registrable Securities, subject to the consent of
the Rights Holder) covering the resale of all of the Registrable Securities.
2.2 Furnishing Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to SECTION 2.1 that the
Rights Holder shall furnish to the Company such information regarding himself,
the Registrable
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Shares held by him and the intended method of disposition of such securities as
shall be required to effect the registration of the Registrable Shares.
2.3 Assignment of Registration Rights. The registration rights of the
Rights Holder under this Agreement may be assigned (but only with all related
obligations) by Rights Holder to a transferee or assignee of such securities
that (i) is an entity as to which the Rights Holder is the beneficial owner of
at least a majority of the equity therein and the Rights Holder has voting
control thereover, (ii) is a member of the Rights Holder's family or a trust for
the benefit of an individual Rights Holder. Upon any such permissible
assignment, the assigning Rights Holder shall provide the Company with written
notice of such transfer stating the name and address of the transferee and
identifying the securities with respect to which the rights under this Agreement
have been assigned. Except as expressly set forth above, the rights of the
Rights Holder under this Agreement may not be assigned, transferred or otherwise
conveyed without the prior written consent of the Company in its sole
discretion.
3. Resale Limitations. Notwithstanding anything else to the contrary
contained herein, the Rights Holder may not sell any Registrable Securities
within the first six (6) months following the date on which the Registration
Statement required by SECTION 2.1 becomes effective (the "Effective Date")
without the prior written consent of the Company.
4. Registration Procedures. With respect to the Registration Statement
required to be filed under SECTION 2.1, the Company shall:
4.1 Prepare and file with the Commission a Registration Statement with
respect to such Registrable Shares and use all reasonable efforts to cause such
Registration Statement to become effective, and, upon the request of the Rights
Holder, keep such Registration Statement effective for the earliest of ten (10)
year from the Effective Date, until the Rights Holder has completed the
distribution related thereto, or until the Registrable Shares may otherwise be
sold to the public pursuant to Rule 144 (or any successor provision).
4.2 Prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used in connection
with such Registration Statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement for the period set forth in
SECTION 4.1.
4.3 Furnish to the Rights Holder such number of copies of the
Prospectus, in conformity with the requirements of the Securities Act, and such
other documents as may reasonably be requested in order to facilitate the
disposition of Registrable Shares owned.
4.4 Use its reasonable efforts to register and qualify the securities
covered by such Registration Statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Rights
Holder; provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify
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to do business or to file a general consent to service of process in any such
states or jurisdictions.
4.5 Notify the Rights Holder when the Prospectus is required to be
delivered under the Securities Act of the happening of any event as a result of
which the Prospectus included in such Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing. The Company will
use reasonable efforts to amend or supplement such Prospectus in order to cause
such Prospectus not to include any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
5. Assignment. Neither this Agreement nor any other rights, interests
or obligations hereunder may be assigned by any of the parties hereto, except in
the case of the Company, by operation of law. Each permitted assignee pursuant
to this SECTION 5 shall be deemed to have agreed to be bound by the terms of
this Agreement.
6. Indemnification.
6.1. Indemnification by the Company. In the event of any registration
of any Registrable Shares under the Securities Act pursuant to SECTION 2, the
Company shall indemnify and hold harmless Rights Holder against all losses,
claims, damages, liabilities (or proceedings in respect thereof) and expenses
(under the Securities Act or common law or otherwise), joint or several, arising
out of or based upon any untrue statement or alleged untrue statement of a fact
contained in any Registration Statement or Prospectus (and as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary Prospectus or caused by any omission or alleged
omission to state therein a fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities (or proceedings in respect thereof) or expenses are
caused by any untrue statement or alleged untrue statement contained in or by
any omission or alleged omission from information furnished in writing to the
Company by Rights Holder expressly for use therein.
6.2. Indemnification by Rights Holder. In connection with any
Registration Statement in which Rights Holder are participating, Rights Holder
agree to indemnify and hold harmless the Company, its officers and directors and
each Person, if any, who controls the Company within the meaning of Section 15
of the Securities Act, against any losses, claims, damages, liabilities, (or
proceedings in respect thereof) and expenses (under the Securities Act or common
law or otherwise), joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a fact contained in any Registration
Statement or Prospectus (and as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
Prospectus or caused by any omission or alleged omission to state therein a fact
required to be stated therein or necessary to make the statements therein not
misleading, but only
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to the extent that such untrue statement is contained in or such omission is
from information so furnished in writing by Rights Holder expressly for use
therein.
6.3. Notice of Claims, etc. Any Person entitled to indemnification
under the provisions of this SECTION 6 shall (a) give prompt notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (b) unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist in respect
of such claim, permit such indemnifying party to assume the defense of such
claim, with counsel reasonably satisfactory to the indemnified party; and if
such defense is so assumed, such indemnifying party shall not enter into any
settlement without the consent of the indemnified party if such settlement
attributes liability to the indemnified party and such indemnifying party shall
not be subject to any liability for any settlement made without its consent
(which shall not be unreasonably withheld); and any underwriting agreement
entered into with respect to any Registration Statement provided for under this
Agreement shall so provide. In the event an indemnifying party shall not be
entitled, or elects not, to assume the defense of a claim, such indemnifying
party shall not be obligated to pay the fees and expenses of more than one
counsel or firm of counsel for all parties indemnified by such indemnifying
party in respect of such claim, unless in the reasonable judgment of any such
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties in respect of such claim. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of Rights Holder and shall survive the transfer of such
shares by Rights Holder.
6.4. Other Indemnification. Indemnification similar to that specified
in the preceding subdivisions of this SECTION 6 (with appropriate modifications)
shall be given by the Company to Rights Holder, on the one hand, and by Rights
Holder to the Company, on the other hand, with respect to any required
registration or other qualification of such Registrable Shares under any federal
or state law or regulation of any governmental authority other than the
Securities Act.
6.5. Payment. The indemnification required by this SECTION 6 shall be
made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred. Any indemnified party receiving indemnification
payments will repay the same to the Company in the event it is ultimately
determined that such indemnification payments were not permitted by applicable
law.
6.6. Other Remedies. If for any reason the foregoing indemnity is
unavailable, or is insufficient to hold harmless an indemnified party, other
than by reason of the exceptions provided therein, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such losses, claims, damages, liabilities or expenses (a) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other from
the offering of Registrable Shares (taking into account the portion of the
proceeds of the offering realized by each such party) and as adjusted to
appropriately reflect not only the relative benefits received by the
indemnifying party on the one hand
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and the indemnified party on the other but also the relative fault of the
indemnifying party and the indemnified party as well as any other relevant
equitable considerations.
7. Expenses. Except as specifically provided herein, all Registration
Expenses incurred in connection with any registration pursuant to ARTICLE 2
herein shall be borne by the Company. All Selling Expenses incurred in
connection with any registrations hereunder shall be borne by the Rights Holder.
8. Rules 144 and 144A. The Company will file the reports required to be
filed by it under the Securities Act and the rules and regulations adopted by
the Commission thereunder (or, if the Company is not required to file such
reports, will, upon the request of Rights Holder, make publicly available other
information), all to the extent required from time to time to enable Rights
Holder to sell Registrable Shares without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, (b) Rule 144A
under the Securities Act, as such Rule may be amended from time to time, or (c)
any similar rule or regulation hereafter adopted by the Commission. Upon the
request of Rights Holder, the Company will deliver to Rights Holder a written
statement as to whether it has complied with such requirements.
9. Amendments. This Agreement may be amended only by the written
consent of the parties hereto.
10. Notices. All notices and other communications given pursuant to
this Agreement shall be in writing and shall be deemed to have been duly given
(a) on receipt, if delivered personally, (b) three Business Days after it has
been mailed by first-class, registered or certified mail, return receipt
requested, postage prepaid, (c) the next Business Day after it has been sent by
nationally recognized overnight courier (appropriately marked for overnight
delivery); or (d) upon transmission, if it is sent by telecopy (with request for
immediate confirmation of receipt in a manner customary for communications of
such type):
(i) if to the Company, to:
Saf-T-Hammer Corporation
00000 X. Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx, President
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxxxxxx, Esq.
Xxxxxxx & Xxxxxxx, PLC
0 X. Xxxxxxx Xxx., 00xx xxxxx
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
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(ii) if to the Rights Holder:
Xxxxxx Xxxxx
00000 00xx Xxx. X.
Xxxx, XX 00000
With a copy to:
Xxxx Xxxxxxxxx, Esquire
Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX, 00000
Fax: (000) 000-0000
or, in each case, at such other address as may be specified in writing
(in accordance with the terms of this SECTION 10).
11. Remedies. The Rights Holder in addition to being entitled to
exercise all rights provided herein and granted by law, including recovery of
damages, will be entitled to specific performance of his rights under this
Agreement.
12. Arbitration.
(a) All disputes and controversies related to this Agreement shall be
fully and finally resolved by binding and non-appealable arbitration, before a
single arbitrator selected by the procedure set forth below, held in Seattle,
Washington.
(b) The single arbitrator (the "Arbitrator") shall be selected from
among the Seattle, Washington members of the American Arbitration Association
(the "AAA") by mutual agreement of the disputing parties, or if the disputing
parties are unable to agree, by the following means:
(i) The disputing parties shall simultaneously exchange lists
each containing the names of five members of their choice of the Panel
who have indicated a willingness to serve.
(ii) If a single name appears on all lists, that individual
shall be appointed.
(iii) If more than one name appears on all lists, the
Arbitrator shall be selected from the common names by mutual agreement
of the disputing parties or by lot.
(iv) If the lists contain no names in common, four names shall
be stricken from each disputing party's list by the other disputing
parties and the Arbitrator shall be selected from the remaining names
by mutual agreement of the disputing parties or by lot.
(v) If the AAA ceases to exist or it is otherwise impossible
to select the Arbitrator from the Panel as contemplated by this
Agreement, the Arbitrator shall be selected by the President of the AAA
in the manner that the President deems closest to satisfying the
purposes of this section, or, if such person is
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unable to do so, by the President of the Association of the Bar of King
County, Washington.
(c) The Arbitrator, after appropriate consultation with the disputing
parties, shall (i) determine, in his or her sole discretion, the rules governing
the arbitration proceeding, including whether and to what extent the parties
shall have any right to pre-hearing discovery or other forms of disclosure, the
manner of presentation of arguments and/or evidence before or at any hearing,
whether and to what extent formal rules of evidence shall govern the proceeding
and the parties' rights following the proceeding, and (ii) be governed in
exercising such discretion by the goal of reaching a fair and reasonable
decision in an expeditious and efficient manner while endeavoring to streamline
the process and avoid undue litigation costs.
(d) The Arbitrator shall assess the costs of the proceeding (including
the prevailing disputing party's reasonable attorney's fees) on any unsuccessful
disputing party to the extent the Arbitrator concludes that such disputing party
is unsuccessful, unless he or she concludes that matters of equity or important
considerations of fairness dictate otherwise.
(e) The Arbitrator shall be required to state his or her decision in
writing and may, but shall not be required to, elaborate on the reasons for such
decision.
(f) All proceedings in connection with any arbitration, including its
existence, the content of the proceedings and any decision, shall be kept
confidential to the maximum extent possible consistent with the law.
13. Promissory Note & Loan Agreement. This Registration Rights
Agreement has been executed pursuant to that certain Promissory Note & Loan
Agreement between the Company and the Rights Holder dated as of May 6, 2001 (the
"Note"). Upon a Rescission Request (as defined in the Note), this Registration
Rights Agreement including all rights granted hereunder shall, without further
act or notice by any party, be cancelled and be deemed to be of no further force
or effect.
14. Miscellaneous. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective of the Company and Rights
Holder. This Agreement embodies the entire agreement and understanding between
the Company and Rights Holder and supersedes all prior agreements and
understandings relating to the subject matter hereof. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE
OF WASHINGTON. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held 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. The headings in this Agreement
are for purposes of reference only and shall not limit or otherwise affect the
meaning hereof. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered effective as of the date first above written.
SAF-T-HAMMER CORPORATION, a Nevada corporation
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxxxx X. Xxxxx
-----------------------------------------
Its: CEO
------------------------------------------
/s/ Xxxxxx Xxxxx
------------------------------------------
Xxxxxx Xxxxx
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