DEBT REGISTRATION RIGHTS AGREEMENT
among
TRUE TEMPER CORPORATION
and
EMHART, INC.
-----------------------
Dated as of September 30, 1998
TABLE OF CONTENTS
Page
1. Definitions...........................................................1
2. Securities Subject to this Agreement..................................2
3. Shelf Registration....................................................3
4. Piggy-Back Registration...............................................3
5. Hold-Back Agreements..................................................4
6. Registration Procedures...............................................6
7. Registration Expenses................................................11
8. Indemnification......................................................12
9. Rule 144.............................................................15
10. Miscellaneous........................................................15
DEBT REGISTRATION RIGHTS AGREEMENT
This DEBT REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
made and entered into as of September 30, 1998, among True Temper Corporation, a
Delaware corporation (the "Company" and, together with its successors and
assigns, the "Issuer"), and the purchaser listed on the signature pages hereto
(together with its successors and assigns, the "Purchaser").
RECITALS
This Agreement is made pursuant to the Securities Purchase
Agreement ("Securities Purchase Agreement"), dated as of September 30, 1998, by
and among the Company and the Purchaser. In order to induce the Purchaser to
enter into the Securities Purchase Agreement, the Company has agreed to provide
the registration rights set forth in this Agreement. The execution of this
Agreement is a condition to the Closing under the Securities Purchase Agreement.
AGREEMENT
The parties agree as follows:
1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Exchange Act: The Securities Exchange Act of 1934, as amended.
Indemnified Parties: See Section 8(a) hereof.
Indemnifying Party: See Section 8(c) hereof.
NASD: National Association of Securities Dealers, Inc.
Notes: The Senior Increasing Rate Discount Notes issued
pursuant to the Securities Purchase Agreement in the form of Exhibit C to the
Securities Purchase Agreement.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
Piggy-Back Registration: See Section 4(a) hereof.
Prospectus: 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 by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
Registrable Securities: All Notes; provided that a Note ceases
to be a Registrable Security when it is no longer a Transfer Restricted
Security.
Registrants: The Issuer.
Registration Expenses: See Section 7 hereof.
Registration Statement: Any registration statement of the
Registrants 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,
all exhibits and all material incorporated by reference in such Registration
Statement.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended.
Shelf Registration: See Section 3(a) hereof.
Transfer Restricted Security: Registrable Securities upon
original issuance thereof; provided that a Registrable Security is no longer a
Transfer Restricted Security when such Registrable Security is sold to the
public pursuant to an effective Registration Statement.
"Underwritten Registration" or "Underwritten Offering": A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. Securities Subject to this Agreement
(a)......Registrable Securities. The securities entitled to
the benefits of this Agreement are the Registrable Securities.
(b)......Holders of Registrable Securities. A Person is deemed
to be a holder of Registrable Securities whenever such Person owns Registrable
Securities of record or has provided evidence reasonably satisfactory to the
Company that such Person has the right to acquire such Registrable Securities,
whether or not such acquisition has actually been effected and disregarding any
legal restrictions upon the exercise of such right.
3. Shelf Registration. The Registrants shall file, and shall
use their best efforts to cause to become effective a "shelf" registration
statement on any appropriate form pursuant to Rule 415 (or similar rule that may
be adopted by the SEC) under the Securities Act (a "Shelf Registration") on or
as soon as practicable after September 30, 1999 in order to permit registered
resales of all of the Registrable Securities. Subject to the last paragraph of
Section 6, the Registrants agree to use their best efforts thereafter to keep
such Shelf Registration continuously effective, and to prevent the happening of
any event of the kind described in Section 6(c) hereof that requires the
Registrants to give notice pursuant to the last paragraph of Section 6 hereof,
until such time as all the Registrable Securities covered by the Shelf
Registration have been sold pursuant to such Shelf Registration or have been
otherwise redeemed in full by the Company.
4. Piggy-Back Registration
(a)......If the Company proposes to file a registration
statement under the Securities Act with respect to an offering (other than an
offering the proceeds of which are to be used to redeem the Notes) by the
Company of any debt securities for its own account or for the account of any of
its security holders (provided that, in the case of a registration on demand of
such security holders, the holders of a majority in aggregate principal amount
of any such debt securities consent in writing) of any class of debt security
(other than a registration statement on Form S-4 or S-8 (or any substitute form
that may be adopted by the SEC) or the Shelf Registration, then the Company
shall give written notice of such proposed filing to the holders of Registrable
Securities as soon as practicable (but in no event less than 30 days before the
anticipated filing date), and such notice shall offer such holders the
opportunity to register such principal amount of Registrable Securities as each
such Holder may request (a "Piggy-Back Registration").
(b)......The Company shall use all reasonable efforts to cause
the managing underwriter or underwriters of a proposed underwritten offering to
permit the Registrable Securities requested to be included in the registration
statement for such offering to be included on the same terms and conditions as
any similar class of debt securities of the Company or of such other security
holders included therein. Notwithstanding the foregoing, if the managing
underwriter or underwriters of such offering deliver a written opinion to the
Company that either because of (i) the kind or combination of securities which
the holders of Registrable Securities, the Company and any other persons or
entities intend to include in such offering or (ii) the size of the offering
which such holders, the Company and such other persons intend to make, are such
that the success of the offering would be materially and adversely affected by
inclusion of the Registrable Securities requested to be included, then (a) in
the event that the size of the offering is the basis of such managing
underwriter's opinion, the amount of securities to be offered for the accounts
of such holders shall be reduced pro rata (according to the Registrable
Securities proposed for registration) to the extent necessary to reduce the
total amount of securities to be included in such offering to the amount
recommended by such managing underwriter or underwriters; provided that if
securities are being offered for the account of other persons or entities as
well as the Company, then with respect to the Registrable Securities intended to
be offered by such holders, the proportion by which the amount of such class of
securities intended to be offered by such holders is reduced shall not exceed
the proportion by which the amount of such class of securities intended to be
offered by such other persons or entities is reduced; and (b) in the event that
the kind (or combination) of securities to be offered is the basis of such
managing underwriter's opinion, (x) the Registrable Securities to be included in
such offering shall be reduced as described in clause (a) above (subject to the
proviso in clause (a)) or, (y) if the actions described in clause (x) would, in
the judgment of the managing underwriter, be insufficient to substantially
eliminate the adverse effect that inclusion of the Registrable Securities
requested to be included would have on such offering, such Registrable
Securities will be excluded from such offering.
5. Hold-Back Agreements
(a)......Restrictions on Public Sale by Holder of Registrable
Securities. Each holder of Registrable Securities whose Registrable Securities
are covered by a Registration Statement filed pursuant to Section 3 hereof
agrees, if requested by the managing underwriters in an underwritten offering,
not to effect any public sale or distribution of securities of the Registrants
of the same class as the securities included in such Registration Statement,
including a sale pursuant to Rule 144 under the Securities Act (except as part
of such underwritten registration), during the 30-day period prior to, and
during the 90-day period beginning on, the closing date of each underwritten
offering made pursuant to such Registration Statement, to the extent timely
notified in writing by the Registrants or the managing underwriters; provided,
however, that each holder of Registrable Securities shall be subject to the
hold-back restrictions of this Section 5(a) only once during any 365-day period.
The foregoing provisions shall not apply to any holder of
Registrable Securities if such holder is prevented by applicable statute or
regulation from entering any such agreement; provided, however, that any such
holder shall undertake, in its request to participate in any such underwritten
offering, not to effect any public sale or distribution of any Registrable
Securities held by such holder and covered by a Registration Statement
commencing on the date of sale of the Registrable Securities unless it has
provided 45 days prior written notice of such sale or distribution to the
underwriter or underwriters.
(b)......Restrictions on Sale of Debt Securities by the
Registrants and Others. The Registrants agree (1) not to effect any public or
private offer, sale or distribution of any of their debt securities or any class
or series of their capital stock having a preference in liquidation or with
respect to dividends, including a sale pursuant to Regulation D under the
Securities Act (other than any such sale or distribution of such securities in
connection with any merger or consolidation by the Issuer or any subsidiary of
the Issuer or the acquisition by the Issuer or a subsidiary of the Issuer of the
capital stock or substantially all the assets of any other Person or in
connection with any employee stock option or other benefit plan; provided that
in each such case the recipients of such securities agree to be bound by a
restriction on transfer comparable to that set forth in this Section 5(b)),
during the 10-day period prior to, and during the 135-day period beginning with,
the effectiveness of a Registration Statement filed under Section 3 to the
extent timely notified in writing by a holder of Registrable Securities or the
managing underwriters in an underwritten offering and (2) during the
aforementioned period, to cause each holder of each of the Registrants'
privately placed debt securities or any class or series of the Registrants'
capital stock having a preference in liquidation or with respect to dividends
purchased from the Registrants at any time on or after the date of this
Agreement to agree not to effect any public sale or distribution of any such
securities during such period, including a sale pursuant to Rule 144 under the
Securities Act (except as part of such registration, if permitted).
6. Registration Procedures. In connection with the
Registrants' Shelf Registration obligations set forth in Section 3 hereof, each
of the Registrants will use its best efforts to effect such registration to
permit the sale of such Registrable Securities in accordance with the intended
method or methods of distribution thereof, and pursuant thereto the Registrants
will, as expeditiously as possible:
(a)......prepare and file with the SEC, within the time period
provided in Section 3 hereof, a Registration Statement or Registration
Statements relating to the Shelf Registration on any appropriate form under the
Securities Act, which form shall be available for the sale of the Registrable
Securities in accordance with the intended method or methods of distribution
thereof and shall include all financial statements (including, if applicable,
financial statements of any Person that shall have guaranteed any indebtedness
of the Registrants) required by the SEC to be filed therewith, cooperate and
assist in any filings required to be made with the NASD, and use its best
efforts to cause such Registration Statement to become effective; provided that
before filing a Registration Statement or any amendments or supplements thereto,
the Registrants will furnish to the holders of the Registrable Securities
covered by such Registration Statement, copies of all such documents proposed to
be filed, which documents will be subject to the review by such holders, and the
Registrants will not file any Registration Statement or any amendments or
supplements thereto to which the holders of a majority in aggregate principal
amount of such Registrable Securities shall reasonably object;
(b)......prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep the Registration Statement effective until all Registrable Securities
covered by such Registration Statement have been sold; cause the Prospectus to
be supplemented by any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable 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;
(c)......notify the selling holders of Registrable Securities
promptly, and (if requested by any such Person) confirm such advice in writing,
(1) 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, (2) of any request
by the SEC for amendments or supplements to the Registration Statement or the
Prospectus or for additional information, (3) of the issuance by the SEC of any
stop order of which any Registrant or its counsel is aware suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose, (4) if at any time the representations and warranties of the
Registrants contemplated by paragraph (o) below cease to be true and correct,
(5) of the receipt by the Registrants 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 (6) of the Issuer's becoming aware that the Prospectus (including any
document incorporated therein by reference), as then in effect, includes an
untrue statement of material fact or omits to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(d)......make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of the Registration Statement at the
earliest possible moment;
(e)......if reasonably requested by a holder of Registrable
Securities being sold in connection with an underwritten offering, promptly
incorporate in a Prospectus such information as the holders of a majority in
aggregate principal amount 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 principal amount of Registrable Securities being sold, the purchase price
being paid therefor and 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 as promptly as
practicable upon being notified of the matters to be incorporated in such
Prospectus;
(f)......furnish to each selling holder of Registrable
Securities without charge, at least one signed copy of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference and
all exhibits (including those incorporated by reference);
(g)......deliver to each selling holder of Registrable
Securities without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such Persons
may reasonably request; the Registrants' consents to the use of the Prospectus
by each of the selling holders of Registrable Securities, in connection with the
offering and sale of the Registrable Securities covered by the Prospectus;
(h)......prior to any public offering of Registrable
Securities, use its best efforts to register or qualify or cooperate with the
selling holders of Registrable Securities, and their 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 such
seller reasonably requests in writing and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of such
Registrable Securities; provided that the Registrants will not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process or taxation in any such jurisdiction where it is not then so subject;
(i)......cooperate with the selling holders of Registrable
Securities to facilitate, to the extent commercially reasonable under the
circumstances, the timely preparation and delivery of certificates representing
such Registrable Securities to be sold and not bearing any restrictive legends;
and enable such Registrable Securities to be in such denominations and
registered in such names as such selling holders may request at least two
business days prior to any sale of such Registrable Securities;
(j)......use their 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 to consummate the disposition
of such Registrable Securities;
(k)......upon the occurrence of any event contemplated by
paragraph (c)(6) above, prepare a supplement or post-effective amendment to the
related 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 holders of the Registrable Securities, the
Prospectus will not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not misleading
in light of the circumstances then existing;
(l)......use commercially reasonable efforts to cause all
Registrable Securities covered by a Registration Statement to be listed on each
securities exchange on which similar securities issued by the Registrants are
then listed if such listing is permitted under the rules of such exchange and if
requested by the holders of a majority in aggregate principal amount of such
Registrable Securities;
(m)......cause the Registrable Securities covered by a
Registration Statement to be rated with such rating agencies as the holders of a
majority in aggregate principal amount of such Registrable Securities may
designate;
(n)......not later than the effective date of the Shelf
Registration, provide a CUSIP number for all Registrable Securities and provide
the transfer agent with printed certificates for the Registrable Securities
which are in a form eligible for deposit with The Depository Trust Company;
(o)......[This section intentionally omitted.]
(p)......make available for inspection by a representative of
the holders of a majority in principal amount of the Registrable Securities and
any attorney or accountant retained by such holders, all financial and other
records, pertinent corporate documents and properties of the Registrants as may
be reasonably necessary to enable them to exercise their due diligence
responsibilities, and provide reasonable access to appropriate officers of the
Issuer in connection with such due diligence responsibilities;
(q)......otherwise use their best efforts to comply with all
applicable rules and regulations of the SEC, and make generally available to
their security holders, earnings statements for the Registrants satisfying the
provisions of Section 11(a) of the Securities Act, no later than 45 days after
the end of any 12-month period (or 90 days, if such period is a fiscal year)
beginning with the first month of the Registrants' first fiscal quarter
commencing after the effective date of the Registration Statement, which
statements shall cover said 12-month periods; provided that the Issuer shall be
deemed to have complied with this Section 5(q) if it has satisfied Rule 158
under the Securities Act; and
(r)......promptly prior to the filing of any document which is
to be incorporated by reference into the 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 covered by
such Registration Statement, make the Registrants' representatives available for
discussion of such document with such selling holders and make such changes in
such document prior to the filing thereof as counsel for such selling holders
may reasonably request in writing.
The Registrants may require each seller of Registrable
Securities as to which any registration is being effected to furnish to the
Registrants such information regarding the distribution of such securities as
the Registrants may from time to time reasonably request in writing.
Each holder of Registrable Securities agrees by acceptance of
such Registrable Securities that, upon receipt of any notice from the
Registrants of the happening of any event of the kind described in Section
6(c)(3), (5) or (6) hereof that, in the reasonable judgment of the Registrant's
Board of Directors, it is advisable to suspend use of the prospectus for a
discrete period of time due to pending corporate developments, public filings
with the SEC or similar events, such holder will forthwith discontinue
disposition of Registrable Securities until such holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 6(k) hereof,
or until it is advised in writing (the "Advice") by the Registrants that the use
of such Prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in such Prospectus,
and, if so directed by the Registrants, such holder will deliver to the
Registrants (at the Registrants' expense) all copies, other than permanent file
copies then in such holder's possession, of such Prospectus covering such
Registrable Securities current at the time of receipt of such notice. The
Registrant shall use all reasonable efforts to insure that the use of the
prospectus may be resumed as soon as practicable, and in any event shall not be
entitled to required the Holder to suspend use of any prospectus for more than
thirty (30) business days in any twelve month period.
7. Registration Expenses
(a)......All reasonable expenses incident to the Registrants'
performance of or compliance with this Agreement, including without limitation
all (i) registration and filing fees, fees and expenses associated with filings
required to be made with the NASD, (ii) fees and expenses of compliance with
securities or blue sky laws (including fees and disbursements of counsel for the
selling holders in connection with blue sky qualifications of the Registrable
Securities and determination of their eligibility for investment under the laws
of such jurisdictions as the holders of a majority in aggregate principal amount
of the Registrable Securities being sold may reasonably designate), (iii)
printing expenses (including expenses of printing certificates for the
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and of printing prospectuses), (iv) fees and disbursements of counsel
for the Registrants and for the sellers of the Registrable Securities (subject
to the provisions of Section 6(b)), and customary out of pocket expenses and
fees paid by issuers to the extent provided for in any underwriting agreement
(excluding discounts, commissions or fees of underwriters, selling brokers,
dealer managers or similar securities industry professionals relating to the
distribution of the Registrable Securities, transfer taxes or legal expenses of
any Person other than the Registrants and the selling holders), (v) the cost of
securities acts liability insurance if the Registrants so desire and (vi) fees
and expenses of other Persons retained by the Registrants (all such expenses
being herein called "Registration Expenses") will be borne by the Registrants,
regardless whether the Registration Statement becomes effective. Each holder of
Registrable Securities will pay any fees or disbursements of counsel to such
holder (other than as provided in Section 7(b)) and all underwriting discounts
and commissions and transfer taxes, if any, and provide other fees, costs and
expenses of such holder (other than Registration Expenses) relating to the sale
or disposition of such holder's Registrable Securities. The Issuer, in any
event, will pay the Issuer's own internal expenses (including, without
limitation, all salaries and expenses of their officers and employees performing
legal or accounting duties), the expense of any annual audit, the fees and
expenses incurred in connection with the listing of the securities to be
registered on each securities exchange on which similar securities issued by the
Registrants are then listed, rating agency fees and the fees and expenses of any
Person, including special experts, retained by the Registrants.
(b)......In connection with the Shelf Registration hereunder,
the Registrants will reimburse the selling holders of Registrable Securities
being registered in such registration for the reasonable fees and disbursements
of not more than one counsel chosen by the selling holders of a majority in
principal amount of such Registrable Securities.
8. Indemnification
(a)......Indemnification by the Registrants. Each of the
Registrants jointly and severally agree to indemnify and hold harmless, to the
full extent permitted by law, each holder of Registrable Securities, their
officers, directors and employees and each Person who controls such holder
(within the meaning of the Securities Act) (the "Indemnified Parties") against
all losses, claims, damages, liabilities and expenses incurred by such party in
connection with any actual or threatened action arising out of or based upon any
untrue or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary Prospectus or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
the same arise out of or are based upon any such untrue statement or omission
made in reliance on and in conformity with any information furnished in writing
to the Registrants by such holder or its counsel expressly for use therein;
provided, that no Registrant shall be liable in any such case to the extent that
any such loss, claim, damage, liability or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission in the Prospectus, if such untrue statement or alleged untrue
statement, omission or alleged omission is completely corrected in an amendment
or supplement to the Prospectus and the holder of Registrable Securities
thereafter fails to deliver such Prospectus as so amended or supplemented prior
to or concurrently with the sale of the Registrable Securities to the person
asserting such loss, claim, damage, liability or expense after the Registrants
had furnished such holder with a sufficient number of copies of the same. Each
Registrant shall also indemnify underwriters, their officers and directors and
each Person who controls such Persons (within the meaning of the Securities Act)
to the same extent as provided above with respect to the indemnification of the
Indemnified Parties, if requested.
(b)......Indemnification by Holder of Registrable Securities.
In connection with the Shelf Registration, each holder of Registrable Securities
will furnish to the Registrants in writing such information and affidavits as
the Registrants reasonably request for use in connection with any Registration
Statement or Prospectus and agrees to indemnify and hold harmless, to the full
extent permitted by law, the Registrants, their directors and officers and each
Person who controls a Registrant (within the meaning of the Securities Act)
against any losses, claims, damages, liabilities and expenses resulting from any
untrue statement of a material fact contained in any Registration Statement or
Prospectus or any omission of a material fact required to be stated in the
Registration Statement or Prospectus or preliminary Prospectus or necessary to
make the statements therein not misleading, to the extent, but only to the
extent, that such untrue statement or omission relates to a holder and is made
in reliance on and in conformity with any information or affidavit furnished in
writing by such holder to the Registrants specifically for inclusion in such
Registration Statement or Prospectus. In no event shall the liability of any
selling holder of Registrable Securities hereunder be greater in amount than the
dollar amount of the proceeds received by such holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation. The
Registrants shall be entitled to receive indemnities from underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution of such Registrable Securities to the same
extent as provided above with respect to information or affidavit furnished in
writing by such Persons specifically for inclusion in any Prospectus or
Registration Statement.
(c)......Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder will (i) give prompt notice to the
applicable Registrant or holder of Registrable Securities, as the case may be
(in either case, as applicable, an "Indemnifying Party"), of any claim with
respect to which it seeks indemnification and (ii) permit such Indemnifying
Party to assume the defense of such claim with counsel reasonably satisfactory
to such Person; provided, however, that any Person entitled to indemnification
hereunder shall have the right to employ separate counsel and to participate in
the defense of such claim, but the fees and expenses of such counsel shall be at
the expense of such Person unless (a) the Indemnifying Party has agreed to pay
such fees or expenses, or (b) the Indemnifying Party has failed to assume the
defense of such claim or (c) in the reasonable judgment of any such Person,
based upon advice of its counsel, a conflict of interest may exist between such
Person and the Indemnifying Party with respect to such claims (in which case, if
the Person notifies the Indemnifying Party in writing that such Person elects to
employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense of such claim
on behalf of such Person). If such defense is not assumed by the Indemnifying
Party, the Indemnifying Party will not be subject to any liability for any
settlement made without its consent (but such consent will not be unreasonably
withheld). No Indemnifying Party will be required to consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Person entitled to
indemnification a release from all liability in respect to such claim or
litigation. Any Indemnifying Party who is not entitled to, or elects not to,
assume the defense of a claim will not be obligated to pay the fees and expenses
of more than one counsel for all Persons entitled to indemnification by such
Indemnifying Party with respect to such claim, unless in the reasonable judgment
of any such Person a conflict of interest may exist between such Person and any
other Person entitled to indemnification hereunder with respect to such claim,
in which event the Indemnifying Party shall be obligated to pay the fees and
expenses of such additional counsel or counsels, but only of one such additional
counsel for each group of similarly situated Persons in any one jurisdiction.
(d)......Contribution. If for any reason the indemnification
provided for in the preceding clauses (a) and (b) is unavailable to a Person
entitled to indemnification or is insufficient to hold it harmless as
contemplated by the preceding clauses (a) and (b), then the Indemnifying Party
shall contribute to the amount paid or payable by such Person as a result of
such loss, claim, damage or liability in such proportion as is appropriate to
reflect not only the relative benefits received by such Person and the
Indemnifying Party, but also the relative fault of such Person and the
Indemnifying Party, as well as any other relevant equitable considerations,
provided that no holder of Registrable Securities shall be required to
contribute an amount greater than the dollar amount of the proceeds received by
such holder of Registrable Securities with respect to the sale of any
securities. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
9 .Rule 144. The Registrants covenant that they will file the
reports required to be filed by them under the Securities Act and the Exchange
Act and the rules and regulations adopted by the SEC thereunder (or, if any of
them is not required to file such reports, the applicable party will, upon the
request of any holder of Registrable Securities made after September 30, 1999
make publicly available other information so long as necessary to permit sales
pursuant to Rule 144 under the Securities Act), and they will take such further
action as any holder of Registrable Securities may reasonably request, all to
the extent required from time to time to enable such holder to sell Registrable
Securities 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, or (b) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any holder of Registrable
Securities, the Registrants will deliver to such holder a written statement as
to whether they have complied with such information and filing requirements.
10. Miscellaneous
(a)......Remedies. Each holder of Registrable Securities, in
addition to being entitled to exercise all rights provided herein, in the
Securities Purchase Agreement or granted by law, including recovery of damages,
in connection with the breach by the Registrants of their obligations to
register the Registrable Securities will be entitled to specific performance of
its rights under this Agreement. The Registrants agree that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by any of them of the provisions of this Agreement and each agrees, to the
extent permitted under applicable law, to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b)......No Inconsistent Agreements. The Registrants will not
on or after the date of this Agreement enter into any agreement with respect to
their securities which is inconsistent with the rights granted to the holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the holders of Registrable Securities
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Registrants' securities under any other
agreements. The Registrants have not previously entered into any inconsistent
agreement with respect to their securities granting any registration rights to
any Person.
(c)......Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions of this Agreement may not be given unless the Registrants have
obtained the written consent of holders of at least 66 2/3 % of the principal
amount of the outstanding Registrable Securities (excluding Registrable
Securities held by the Company or one of its affiliates).
(d)......Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, facsimile or air courier guaranteeing overnight
delivery:
(i) if to a holder of Registrable Securities, at the
most current address given by such holder to the Registrants in
accordance with the provisions of this Section 10(d), which address
initially is, with respect to the Purchaser, the address set forth next
to the Purchaser's name on the signature pages of the Securities
Purchase Agreement, with copies to Miles & Stockbridge P.C., 00 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxx, Esq.
and Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xxxxxx X. Xxxxxxxx, Esq.; and
(ii).....if to the Registrants, initially to it at the address
set forth in the Securities Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 10(d), with a copy to Xxxxxxxx & Xxxxx, 000 Xxxx 00xx Xx., Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxxxx Xxxxx, Esq.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid if mailed; when
answered back, if delivered by facsimile; and on the next business day if timely
delivered to an air courier guaranteeing overnight delivery.
(e)......Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties hereto, including without limitation, and without the need for an
express assignment, subsequent holders of Registrable Securities.
(f)......Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate 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 agreement.
(g)......Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h)......New York Law; Submission to Jurisdiction; Waiver of
Jury Trial. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY
FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY HERETO IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(i)......Severability. 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 in any jurisdiction, the validity,
legality and enforceability of any such provision in such jurisdiction in every
other respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
(j)......Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement with respect to the subject
matter contained herein 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 Registrants with respect to the
securities sold pursuant to the Securities Purchase Agreement. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Debt
Registration Rights Agreement as of the date first written above.
TRUE TEMPER CORPORATION
By:/s/
Name:
Title:
EMHART, INC.
By:/s/
Name:
Title: