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EXHIBIT 2.7
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT dated as of October 17, 1997 by and
among Wheels Sports Group, Inc., a North Carolina corporation (the "Company")
and Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxx (the "Holders").
The parties agree as follows:
SECTION 1. DEFINITIONS. For purposes of this Agreement:
(a) "Common Stock" means the Company's Common Stock, $.01 par
value;
(b) "Registrable Securities" means 175,000 shares of Common
Stock to be issued to the Holders upon closing of that certain Merger
described in an Agreement and Plan of Reorganization of even date (the
"Agreement"; certain terms not defined herein but used herein are used
as defined in the Agreement);
(c) "register" and "registration" refer to a registration of
the Registrable Securities effected by filing a registration statement
or similar document pursuant to the Securities Act of 1933, as amended
(the "Act") and the declaring or ordering of effectiveness of such
registration statement; and
(d) The "Company" means Wheels Sports Group, Inc., a North
Carolina corporation.
SECTION 2. DEMAND REGISTRATION.
(a) If at any time after July 16, 1998 and before December
31, 1998, the Company receives a written request from a majority of
the Holders that the Company file a registration statement under the
Act covering the registration of Registrable Securities held by them,
then the Company shall, subject to the limitations of this Section 2,
use its best efforts to, within six months of the date of such
request, effect the registration under the Act of all Registrable
Securities and will keep such registration statement effective for a
minimum period of 24 months thereafter. The Company shall be obligated
to effect only one (1) registration pursuant to this Section 2(a).
(b) If the Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they
shall so advise the Company as a part of their request made pursuant
to this Section 2. The Holders shall (together with the Company as
provided in Section 3) enter into an underwriting agreement in
customary form with a mutually acceptable underwriter or underwriters.
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SECTION 3. "PIGGYBACK" RIGHTS. If (but without any obligation to do
so) during the period ending, July 16, 1997, the Company proposes to register
any of its securities under the Act in connection with a public offering for
cash proceeds payable in whole or in part to the Company other than with
respect to a Registration Statement filed on Form S-8 or Form S-4 or such other
similar form then tn effect under the Act), the Company shall, at such time,
subject to the provisions of Section 6 and 7 hereof and upon request of the
Holders cause to be registered under the Act all of the Registrable Securities
which the Holders request be registered; provided, however if the managing
underwriter of the public offering of securities proposed to be registered by
the Company advises the Holders in writing that marketing factors require a
limitation of the number of securities to be underwritten, then the number of
Registrable Securities of the Holders that may be included In the underwriting
shall be so limited pro rata. Such "piggyback rights" shall expire on the
registration and sale of the Registrable Securities pursuant to Section 2 above
or upon the sale of the Registrable Securities hereunder, but in no event later
than June 30, 1999.
SECTION 4. REGISTRATION PROCEDURE. Whenever required under this
Agreement to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as is reasonably possible:
(a) Furnish to the Holders of the Registrable Securities
covered by such registration statement such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by them.
(b) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in
usual and customary form, with the managing underwriter of such
offering. The Holders participating in such underwriting shall also
enter into and perform their obligations under such agreement.
(c) Notify the Holders of Registrable Securities covered by
such registration statement, at any time when a prospectus relating
thereto covered by such registration statement is required to be
delivered under the 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.
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SECTION 5. FURNISH INFORMATION. The Holders shall promptly furnish
to the Company in writing such reasonable information regarding the Holders,
the Registrable Securities held by the Holders, and the intended method of
disposition of such securities as shall be required to effect the registration
of their Registrable Securities.
SECTION 6. EXPENSES OF REGISTRATION. All of the foregoing expenses
relating to the Registrable Securities incurred in connection with
registration, filing or qualification pursuant to this Agreement, including
(without limitation) all registration, filing and qualification fees, printers'
bills, mailing and delivery expenses, accounting fees, and the fees and
disbursements of counsel for the Company, but excluding underwriting discounts
or fees, shall be borne by the Company.
SECTION 7. INDEMNIFICATION AND CONTRIBUTION. In the event any
Registrable Securities are included in a registration statement under this
Agreement:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, the officers and directors of
each Holder, any underwriter (as defined in the Act) for such holder,
and each person, if any, who controls such Holder or underwriter
within the meaning of the Act or the Securities Exchange Act of 1934
(the "Exchange Act"), against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under
the Act, the Exchange Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect
thereto) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto,
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the
Company will reimburse each such Holder, officer or director,
underwriter or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided
however, that the indemnity agreement contained in this Section 7(a)
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability, or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any
such loss, claim, damage, liability, or action to the extent that it
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration
statement,
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preliminary prospectus or final prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written
information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person;
provided, further, however, that if any losses, claims, damages or
liabilities arise out of or are based upon any untrue statement,
alleged untrue statement, omission or alleged omission contained in
any preliminary prospectus, and made in reliance upon and in
conformity with written information furnished by such Holder expressly
for use therein, which did not appear in the final prospectus, the
Company shall not have any such liability with respect thereto to such
Holder, any person who controls such Holder within the meaning of the
Act, or any director of such Holder, if such Holder delivered a copy
of the preliminary prospectus to the person alleging such losses,
claims, damages or liabilities and failed to deliver a copy of the
final prospectus, as amended or supplemented if it has been amended or
supplemented, to such person at or prior to the written confirmation
of the sale to such person, provided that such Holder had an
obligation to deliver a copy of the final prospectus to such person;
and
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each
of its officers who has signed the registration statement, each
person, if any, who controls the Company within the meaning of the
Act, any underwriter and any other Holder selling securities in such
registration statement or any of its directors or officers or any
person who controls such Holder or underwriter against any losses,
claims, damages or liabilities, joint or several) to which the Company
or any such director, officers, controlling person, or underwriter or
controlling person, or other such Holder or director, officer or
controlling person may become subject, under the Act, the Exchange Act
or other federal or state law, insofar as such losses, claims, damages
or liabilities (or actions in respect thereto) arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, if the untrue statement or omission or alleged
untrue statement or omission in respect of which such loss, claim,
damage or liability is asserted was made in reliance upon and in
conformity with written information furnished by such Holder expressly
for use in connection with such registration; and each such Holder
will reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer, controlling
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person, underwriter or controlling person, or other Holder, officer,
director, or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided
however, that the indemnity agreement contained in this Section 7(b)
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action, if such settlement is effected without
the consent of the Holder (which consent shall not be unreasonably
withheld); provided, further that the maximum liability of any selling
Holder under this Section 7(b) in regard to any registration statement
shall in no event exceed the amount of the proceeds received by such
selling Holder from the sale of securities under such registration
statement; provided, further however, that if any losses, claims,
damages or liabilities arise out of or are based upon an untrue
statement, alleged untrue statement, omission or alleged omission
contained in any preliminary prospectus which did not appear in the
final prospectus, such seller shall not have any such liability with
respect thereto to the Company, any person who controls the Company
within the meaning of the Act, any officer of the Company who signed
the registration statement or any director of the Company, if the
Company delivered a copy of the preliminary prospectus to the person
alleging such losses, claims, damages or liabilities and failed to
deliver a copy of the final prospectus, as amended or supplemented if
it has been amended or supplemented, to such person at or prior to the
written confirmation of the sale to such person, provided that the
Company had an obligation to deliver a copy of the final prospectus to
such person.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under
this Section 7, deliver to the indemnifying party a written notice of
the commencement thereof, and the indemnifying party shall have the
right to participate in and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly notified,
to assume the defense thereof with counsel mutually satisfactory to
the parties. An indemnified party shall have the right to retain its
own counsel, however, the fees and expenses of such counsel shall be
at the expense of the indemnified party, unless (i) the employment of
such counsel has been specifically authorized in writing by the
indemnifying party, (ii) the indemnifying party has failed to assume
the defense and employ counsel, or (iii) the named parties to any such
action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have
been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to
those
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available to the indemnifying party (in which case the indemnifying
party shall not have the right to assume the defense of such action on
behalf of such indemnified parry, it being understood, however, that
the indemnifying party 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 reasonable fees and expenses of more
than one separate firm of attorneys for all indemnified parties). The
failure to deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any indemnified party
under this Agreement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities or actions in
respect thereof referred to therein, then each indemnifying party
shall in lieu of; indemnifying such indemnified party contribute to
the amount paid or payable by such indemnified party as a result of
such losses, claims, damages, liabilities or actions in such
proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and selling Holders, on the other, in
connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or actions as well as any other
relevant equitable considerations, including the failure to give any
required notice The relative fault shall be 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 by such selling Holders on the other, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto
acknowledge and agree that it would not be Just and equitable if
contribution pursuant to this subparagraph (d) were determined by pro
rata allocation (even if all of the selling 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 above in this subparagraph (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages,
liabilities or actions in respect thereof referred to above in this
subparagraph (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this subparagraph (d), the amount
the selling Holders shall be required to contribute shall not exceed
the amount, if any, by which the total price at which the securities
sold by each of them were
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offered to the public exceeds the amount of any damages which they
would have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, or other
violation of law. 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 fraudulent
misrepresentation
SECTION 8. MISCELLANEOUS.
(a) Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the Company and to the Holders and their
respective heirs, personal representatives, successors and assigns.
(b) Notices. Except as otherwise provided herein, any
notice, consent or request to be given in connection with any term or
provision of this Agreement shall be deemed to have been given
sufficiently if sent by hand, registered or certified mail, postage
prepaid, facsimile transmission or courier (next day delivery), to the
Company or to the Holders at their respective addresses as provided on
or about the date hereof.
(c) Integration. This Agreement contains the entire
agreement between the parties with respect to the transactions
contemplated hereby and no party shall be bound by, nor shall any
party be deemed to have made, any covenants, representations,
warranties undertakings or agreements except those contained in such
entire Agreement. The section and paragraph headings contained in this
Agreement are for the reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
(d) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same agreement.
(e) Amendment. This Agreement may be amended, changed,
waived or terminated only in writing signed by each of the parties.
IN WITNESS WHEREOf, this Agreement has been executed effective as of
the date first above written.
WHEELS SPORTS GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx, Xx., President
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THE HOLDERS
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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