EXHIBIT 10.1
SELLING STOCKHOLDERS
REGISTRATION RIGHTS AGREEMENT
THIS SELLING STOCKHOLDERS REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is entered into effective as of June 27, 2005, by and among OUTDOOR
CHANNEL HOLDINGS, INC., a Delaware corporation (the "Company"), and each of the
persons named on the signature pages hereto who execute this Agreement (referred
to herein individually as a "Holder" and, collectively, as "Holders").
RECITALS
A. As of the date of this Agreement, Holders own shares of the
Company's issued and outstanding common stock (the "Shares") and/or options
exercisable into Shares.
B. The Company desires to provide for an orderly distribution pursuant
to an underwritten offering of the portion of the Shares held by the Holders
(including Shares underlying options) and desires to secure the agreement by the
Holders to a market standoff and to other provisions as set forth below.
In consideration of the mutual promises, representations,
warranties, covenants and conditions set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto mutually agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following respective meanings:
"1933 Act" or the "Act" shall mean the United States
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Commission" or "SEC" shall mean the United States Securities
and Exchange Commission.
"Common Stock" shall mean the voting shares, $0.001 par value
per share, of the Company.
"Proposed Registration" means the Registration Statement on
Form S-3 (No. 333-125084) filed by the Company pursuant to which the Company
proposes to register shares of its Common Stock and Registerable Securities for
the Holders for sale in connection with an underwritten offering on such terms
and conditions as the Company determines in its sole and absolute discretion.
"Registrable Securities" shall mean (i) the Shares, and (ii)
any shares of Common Stock issued by the Company pursuant to the exercise of
options by a Holder for sale in connection with the Proposed Registration as
permitted by the Company.
2. Piggy-Back Registration Rights.
2.1 Proposed Registration. Subject to the terms and conditions
contained in this Agreement, the Company has agreed to permit the Holders to
register Registrable Securities for sale in connection with the Proposed
Registration. The Holder's right to participate in the Proposed Registration
shall be subject to such terms and conditions as determined by the Company in
its sole and absolute discretion and Holder acknowledges that Holder shall have
no rights pursuant to this Agreement with regard to any other proposed
registration, transaction or offering by the Company.
2.2 Further Requirements. The underwriter(s) in the Proposed
Registration will be selected by the Company in its sole and absolute discretion
and the right of each Holder to include any of their Registrable Securities in
the Proposed Registration shall be conditioned upon such Holder's acceptance of
the terms of the underwriting as agreed upon between the Company and the
underwriters selected by the Company and the execution by the Holder of the
applicable Underwriting Agreement. The Company shall include in the Proposed
Registration only that number of Registrable Securities of each Holder which the
Company determines in its sole and absolute discretion and the Company shall
have the right, in its sole and absolute discretion, to reduce the size of the
Proposed Registration and withhold from the offering any Registrable Securities
it deems necessary or advisable. As requested by the Company or the underwriter
in the Proposed Registration, each Holder agrees to deliver to the custodian set
forth in the applicable custody agreement in advance of the effectiveness of the
Proposed Registration the Registrable Securities which such Holder desires to
sell in the Proposed Registration, including any such shares which may be sold
pursuant to the exercise of the underwriters' over-allotment option. In
addition, each Holder agrees to execute such custody agreements, powers of
attorney, option exercise notices, certificates, agreements and other
instruments as reasonably requested by the Company or the underwriters in order
to complete the transactions contemplated by the Proposed Registration.
2.3 Withdraw. A Holder shall only have the right to withdraw any of
such Holder's Registrable Securities proposed to be sold in the Proposed
Registration with the Company's consent. In its sole and absolute discretion,
the Company may decide not to proceed with the Proposed Registration and may
withdraw the registration statement filed in connection therewith. Any decision
by the Company not to proceed with the Proposed Registration or to withdraw such
registration statement shall not require the consent of any Holder.
2.4 Option Exercises. To the extent requested by the Company, each
Holder agrees to exercise such vested options to purchase shares of Common Stock
in order to sell the underlying shares of Common Stock in the Proposed
Registration as
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requested by the Company. In furtherance of the foregoing, each Holder agrees to
complete such exercise notices, agreements and other documentation as reasonably
permitted by the Company in order to facilitate such option exercises and to
provide for the direct payment to the Company of that portion of the proceeds as
the Company may request in order to pay the option exercise price and any
required tax withholdings.
2.5 Delay of Registration. Holders shall not have the right to
obtain or seek an injunction restraining or otherwise delaying any registration
as a result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
2.6 Furnish Information. Each Holder agrees to (i) furnish to the
Company such true and correct information regarding such Holder and the
Registrable Securities held by such Holder for use in connection with the
Proposed Registration as the Company may request, and (ii) cooperate with the
Company and its counsel in connection with the Proposed Registration. Each
Holder agrees to review the disclosures pertaining to such Holder contained in
the prospectus relating to the Proposed Registration and to promptly notify the
Company to the extent any such disclosures contain an untrue statement of a
material fact or otherwise omits to state therein a material fact required to be
stated therein or otherwise necessary to the make the statements therein not
misleading. To the extent that any Holder receives any confidential information
regarding the Company in connection with the Proposed Registration, such Holder
agrees to keep such information confidential and not to disclose such
information.
3. Market Stand-Off. In addition to any other agreements Holder may have
with the Company, each Holder hereby agrees that, upon request by the Company in
connection with the Proposed Registration (whether or not any of such Holder's
Registrable Securities are included in the Proposed Registration), for a period
commencing on the date of this Agreement and ending on such date following the
effective date of such registration statement as agreed to by the Company and
the underwriter, that such Holder will not, directly or indirectly, effect any
sale, offer to sell, hedge, pledge, make any short sale, or distribution (or
enter into any agreement to do any of the foregoing) of any Common Stock or any
securities similar to those being registered by the Company, or any securities
convertible into or exchangeable or exercisable for such securities, including a
sale pursuant to Rule 144 or 144A under the Act, except for sales included as
part of the Proposed Registration. In addition, each Holder hereby agrees to
enter into a "lock-up" agreement which the underwriter or underwriters may
reasonably request.
4. Registration Expenses; Information. The Company shall pay all expenses
incurred by the Company in complying with Section 2 hereof, including, without
limitation, all registration and filing fees (except those fees attributable to
the inclusion of the Registrable Securities), printing expenses, fees and
disbursements of counsel and independent public accountants for the Company,
transfer taxes, fees of transfer agents and registrars. Each Holder shall bear
such Holder's own selling costs, commissions,
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underwriters' discounts, and other expenses in connection with the Proposed
Registration, including, but not limited to, expenses and fees of counsel for
such Holder, expenses and fees for a custodian, and the registration fees
attributable to the inclusion of the Registrable Securities in connection with
the Proposed Registration. In addition to the foregoing, in the event the
underwriting agreement relating to the Proposed Registration is executed by a
Holder and the offering contemplated by the Proposed Registration fails to close
as a result of a breach of a representation, warranty or covenant by such Holder
contained in such underwriting agreement or the non-fulfillment of any covenant
by such Holder contained in such underwriting agreement, then such Holder agrees
to indemnify and hold harmless the Company and the other Holders against any and
all costs, losses, claims, damages or liabilities which result from the breach
by the Holder of such representation, warranty or covenant or the failure by
such Holder to fulfill any covenant pursuant to the underwriting agreement.
5. Indemnification.
5.1 Definition of Violation. For purposes of this Section 5, a
"Violation" shall mean: (i) any untrue statement or alleged untrue statement of
a material fact contained in such registration statement, or final prospectus
contained therein or any amendments or supplements thereto, or (ii) the omission
or alleged omission to state therein a material fact required to be stated
therein, or otherwise necessary to make the statements therein not misleading.
5.2 Holder's Indemnity. Each Holder whose Registrable Securities are
included in the Proposed Registration for sale agrees, severally, and not
jointly, to the extent permitted by law, to indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
registration statement for the Proposed Registration, and each person who
controls the Company (within the meaning of the 1933 Act), against any losses,
claims, damages, or liabilities (joint or several) to which any of the foregoing
persons may become subject (i) under the 1933 Act, or other federal or state law
insofar as such losses, claims, damages or liabilities (or action with respect
thereto) arise out of or are based upon any Violation which occurs in reliance
upon and in conformity with information furnished by such Holder to the Company
for use in connection with such registration, including information contained in
any applicable questionnaire completed by the Holder or (ii) as a result of any
breach by such Holder of the terms and conditions contained in this Agreement.
Each Holder whose shares are included in the Proposed Registration agrees to
reimburse the Company, each of its directors, its officers who signed the
registration statement for the Proposed Registration, and each person who
controls the Company for any out-of-pocket legal or other expenses incurred by
them in connection with investigating or defending any such loss, claim, damage
or liability, as such expenses are incurred.
5.3 Limitations. If the indemnification provided for in this Section
5 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any losses, claims, damages or liabilities
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall
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contribute to the amount paid or payable by such indemnified party as result of
such losses, claims, damages or liabilities in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand, and of
the indemnified party on the other hand, in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact related to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
5.4 Additional Provisions. The obligations of each Holder under this
Section 5 shall survive the completion of any offering of such Holder's
Registrable Securities in the Proposed Registration pursuant to this Agreement.
6. Miscellaneous
6.1 Governing Law. This Agreement shall be governed by and construed
under the laws of California, without giving effect to the conflicts of laws
principles thereof.
6.2 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and permitted assigns of the parties hereto. This Agreement and the
rights and obligations hereunder shall not be assignable by Holders without the
prior written consent of the Company.
6.3 Severability. If any provisions of this Agreement, or the
application thereof, shall for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances shall be interpreted so as best to reasonably
effect the intent of the parties hereto.
6.4 Entire Agreement. This Agreement and the documents referenced
herein constitute the entire understanding and agreement of the parties hereto
with respect to the subject matter hereof and thereof and supersede all prior
and contemporaneous agreements or understandings, inducements or conditions,
express or implied, written or oral, among the parties with respect hereto and
thereto.
6.5 Amendment and Waivers. Any term or provision of this Agreement
may be amended with respect to a particular Holder, and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) with respect to a particular
Holder only by a writing signed by the Company and such Holder.
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6.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original as against any party whose
signature appears thereon, and all of which together shall constitute one and
the same instrument. This Agreement shall be effective as to a particular Holder
when it has been signed by such Holder and by the Company.
[signature pages follow]
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[Company signature page]
IN WITNESS WHEREOF, this Agreement is hereby executed as of
the date first above written.
"COMPANY" OUTDOOR CHANNEL HOLDINGS, INC.
a Delaware corporation
By:/s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
[Holder signature pages]
"HOLDER"
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Address:
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"HOLDER"
/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Address:
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"HOLDER" Musk Ox Investments, LP
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: General Partner
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Address:
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"HOLDER" Musk Ox Investments, LP
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: General Partner
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Address:
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"HOLDER"
/s/ Xxxxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxxxx
Address:
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"HOLDER"
/s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
Address:
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"HOLDER"
/s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Address:
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"HOLDER"
/s/Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Address:
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"HOLDER"
/s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Address:
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"HOLDER"
/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Address:
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"HOLDER" The Multi-Generational Trust of Xxxxxxxxx
Xxxxxxxxx-Xxxxx dated July 3, 2001
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Trustee
Address: c/o Xxxxxxx Xxxx & Friedrich LLP
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
"HOLDER" The Xxxxxxxxx Xxxxxxxxx Irrevocable Trust
dated May 4, 2004
By: /s/ Xxxxxxxx X. Xxxxx, III
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Xxxxxxxx X. Xxxxx, III, Trustee
Address: 000 000xx Xxx XX
Xxxxxxx, XX 00000
"HOLDER" Xxxxxxxxx Xxxx Xxxxxxxxx-Xxxxx Charitable
Remainder Unitrust
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
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Xxxxxxxxx X. Xxxxxxxxx, Trustee
Address: 000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
"HOLDER" The Xxxxxx X. & Xxxxxxx X. Xxxxx Irrevocable
Childrens TR UA DTD November 16, 1992
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, Trustee
Address:
"HOLDER" The Xxxxxx X. & Xxxxxxx X. Xxxxx Irrevocable
Childrens TR UA DTD November 16, 1992
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
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Xxxxxxxxx X. Xxxxxxxxx, Trustee
Address: 000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
