EXHIBIT 99.3
EXECUTION COPY
COLLEGIATE PACIFIC INC.
5.75% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2009
REGISTRATION RIGHTS AGREEMENT
November 26, 2004
Xxxxxx Xxxxxx Partners LLC
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Collegiate Pacific Inc., a Delaware corporation (the "COMPANY"), proposes
to issue and sell to Xxxxxx Xxxxxx Partners LLC (the "INITIAL PURCHASER") upon
the terms set forth in a purchase agreement dated November 22, 2004 (the
"PURCHASE AGREEMENT"), $40,000,000 aggregate principal amount (plus up to an
additional $10,000,000 principal amount) of its 5.75% Convertible Senior
Subordinated Notes due 2009 (the "SECURITIES"). The Securities will be
convertible into shares of the Company's Common Stock, par value $0.01 per share
(the "COMMON STOCK"), at the conversion price set forth in the Final Offering
Circular dated November 22, 2004. The Securities will be issued pursuant to an
Indenture, dated as of November 26, 2004 (the "INDENTURE"), among the Company
and The Bank of New York Trust Company, N.A., as trustee (the "TRUSTEE"). As an
inducement to the Initial Purchaser to enter into the Purchase Agreement, the
Company agrees with the Initial Purchaser, for the benefit of the Holders (as
hereinafter defined), as follows:
1. Definitions.
(a) Capitalized terms used herein without definition shall have
the meanings ascribed to them in the Purchase Agreement. As used in this
Agreement, the following defined terms shall have the following meanings:
"ADDITIONAL INTEREST" has the meaning assigned thereto in Section 7(b)
hereof.
"AFFILIATE" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with such specified person. For purposes of this definition, control of a person
means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AGREEMENT" means this Registration Rights Agreement, as the same may be
amended from time to time.
"CLOSING DATE" means the Closing Date as defined in the Purchase
Agreement.
"COMMISSION" means the Securities and Exchange Commission, or any other
federal agency at the time administering the Exchange Act or the Securities Act,
whichever is the relevant statute for the particular purpose.
"DTC" means The Depository Trust Company.
"DEFAULT DATE" has the meaning assigned thereto in Section 7(b) hereof.
"DEFAULT PERIOD" has the meaning assigned thereto in Section 7(b) hereof.
"DEFAULT TERMINATION DATE" has the meaning assigned thereto in Section
7(b) hereof.
"EFFECTIVE DATE" has the meaning assigned thereto in Section 2(b)(i)
hereof.
"EFFECTIVE TIME" means the time at which the Commission declares the Shelf
Registration Statement effective or at which the Shelf Registration Statement
otherwise becomes effective.
"ELECTING HOLDER" has the meaning assigned thereto in Section 3(a)(iii)
hereof.
"EVENT OF DEFAULT" has the meaning assigned thereto in Section 7(a)
hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"HOLDER" means any person that is the record owner of Registrable
Securities (and includes any person that has a beneficial interest in any
Registrable Security in book-entry form).
"MANAGING UNDERWRITERS" means the investment banker(s) or manager(s) that
shall administer an underwritten offering, if any, conducted pursuant to Section
6 hereof.
"NASD RULES" means the rules of the National Association of Securities
Dealers, Inc., as amended from time to time.
"NOTICE AND QUESTIONNAIRE" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Appendix A
hereto.
The term "PERSON" means an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"PROSPECTUS" means the prospectus (including, without limitation, any
preliminary prospectus, any final prospectus and any prospectus that discloses
information previously omitted
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from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Securities Act) included in the Shelf
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 the Shelf Registration Statement and by all other
amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by the Company under the Exchange Act and incorporated
by reference therein.
"REGISTRABLE SECURITIES" means all or any portion of the Securities issued
from time to time under the Indenture in registered form and the shares of
Common Stock issuable upon conversion, repurchase or redemption of such
Securities; provided, however, that a security ceases to be a Registrable
Security when it is no longer a Restricted Security.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to the
Company's performance of and compliance with this Agreement, including without
limitation: (i) all registration and filing fees and expenses (including,
without limitation, fees and expenses (x) with respect to filings to be made
pursuant to the NASD Rules and (y) incurred in connection with compliance with
state securities or blue sky laws (including reasonable fees and disbursements
of counsel for any underwriters or Holders in connection with blue sky
qualification of any of the Registrable Securities)); (ii) all expenses of any
persons in preparing or assisting in preparing, word processing, printing and
distributing the Shelf Registration Statement, the Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements
and other documents relating to the performance of and compliance with this
Agreement; (iii) all rating agency fees; (iv) all fees and disbursements
relating to the qualification of the Indenture under applicable securities laws;
(v) expenses of printing certificates for Registrable Securities in a form
eligible for deposit with DTC; (vi) the fees and disbursements of the Trustee
and its counsel; (vii) the fees and disbursements of counsel for the Company;
and (viii) the fees and disbursements of the independent public accountants of
the Company, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance.
"REGISTRATION PERIOD" has the meaning assigned thereto in Section 2(b)(i)
hereof.
"RESTRICTED SECURITY" means any Security or share of Common Stock issuable
upon conversion thereof except any such Security or share of Common Stock that
(i) has been effectively registered under the Securities Act and sold in a
manner contemplated by the Shelf Registration Statement, (ii) has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision thereto), or (iii) has otherwise been
transferred and a new Security or share of Common Stock not subject to transfer
restrictions under the Securities Act has been delivered by or on behalf of the
Company in accordance with Section 3.5(3) of the Indenture.
"RULES AND REGULATIONS" means the published rules and regulations of the
Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
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"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement
filed under the Securities Act providing for the registration of, and the sale
on a continuous or delayed basis by the Holders of, all of the Registrable
Securities pursuant to Rule 415 under the Securities Act and/or any similar rule
that may be adopted by the Commission, filed by the Company pursuant to the
provisions of Section 2 of this Agreement, including the Prospectus contained
therein, any amendments and supplements to such registration statement,
including post-effective amendments, and all exhibits and all material
incorporated by reference in such registration statement.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as amended,
or any successor thereto, and the rules, regulations and forms promulgated
thereunder, as the same shall be amended from time to time.
The term "UNDERWRITER" means any underwriter of Registrable Securities in
connection with an offering thereof under the Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a
percentage of the "PRINCIPAL AMOUNT" of Registrable Securities or to a
percentage of Registrable Securities, Common Stock shall be treated as
representing the principal amount of Securities that was surrendered for
conversion or exchange in order to receive such number of shares of Common
Stock.
2. Shelf Registration.
(a) The Company shall, no later than 90 calendar days following
the Closing Date, file with the Commission a Shelf Registration Statement
relating to the offer and sale of the Registrable Securities by the Holders from
time to time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement and, thereafter,
shall use its reasonable efforts to cause such Shelf Registration Statement to
be declared effective under the Securities Act as soon as practicable and in any
event no later than 180 calendar days following the Closing Date; provided,
however, that no Holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use the Prospectus
forming a part thereof for resales of Registrable Securities unless such Holder
is an Electing Holder.
(b) The Company shall use its reasonable efforts:
(i) to keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus forming a part thereof to be usable
by Holders until the earliest of: (A) the sale of all Registrable Securities
covered by the Shelf Registration Statement; (B) the expiration of the period
referred to in Rule 144(k) of the Securities Act, or any successor rule thereto,
with respect to all Registrable Securities (assuming for the purposes hereof
that the Holders are not Affiliates of the Company); and (C) two years from the
date (the "EFFECTIVE DATE") such Shelf Registration Statement is declared
effective (such period being referred to herein as the "REGISTRATION PERIOD").
The Company shall be deemed not to have used its reasonable efforts to keep the
Shelf Registration Statement effective during the Registration Period if the
Company voluntarily takes any action that would result in Holders of Registrable
Securities covered thereby not being able to offer and sell any of such
Registrable Securities during that period, unless such
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action is (1) required by applicable law and the Company thereafter promptly
complies with the requirements of Section 3(j) below or (2) permitted pursuant
to Section 2(c) below;
(ii) after the Effective Time, promptly upon the request of
any Holder that is not then an Electing Holder, to take any action reasonably
necessary to enable such Holder to use the Prospectus forming a part thereof for
resales of Registrable Securities, including, without limitation, any action
necessary to identify such Holder as a selling securityholder in the Shelf
Registration Statement as contemplated by Section 3(a)(ii) hereof; provided,
however, that nothing in this subparagraph shall relieve such Holder of the
obligation to return a completed and signed Notice and Questionnaire to the
Company in accordance with Section 3(a)(ii) hereof; and
(iii) if at any time the Securities, pursuant to Article XII
of the Indenture, are convertible into securities other than Common Stock, to
cause, or to cause any successor under the Indenture to cause, such securities
to be included in the Shelf Registration Statement no later than the date on
which the Securities may then be convertible into such securities.
(c) The Company may suspend the use of the Prospectus for a period
not to exceed 45 days in any 90-day period or an aggregate of 90 days in any
365-day period if the Board of Directors of the Company shall have determined in
good faith that because of valid business reasons (not including avoidance of
the Company's obligations hereunder), including the acquisition or divestiture
of assets, pending corporate developments and similar events, it is in the best
interests of the Company to suspend such use, and prior to suspending such use
the Company provides the Holders with written notice of such suspension, which
notice need not specify the nature of the event giving rise to such suspension.
3. Registration Procedures. In connection with the Shelf Registration
Statement, the following provisions shall apply:
(a) (i) Not less than 30 calendar days prior to the Effective
Time, the Company shall mail the Notice and Questionnaire to the Holders. No
Holder shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement as of the Effective Time, and no Holder shall be entitled
to use the Prospectus for resales of Registrable Securities at any time, unless
such Holder has returned a completed and signed Notice and Questionnaire to the
Company by the deadline for response set forth therein; provided, however,
Holders shall have at least 28 calendar days from the date on which the Notice
and Questionnaire is first mailed to such Holders to return a completed and
signed Notice and Questionnaire to the Company.
(ii) After the Effective Time, the Company shall, upon the
request of any Holder that is not then an Electing Holder, promptly send a
Notice and Questionnaire to such Holder. The Company shall not be required to
take any action to name such Holder as a selling securityholder in the Shelf
Registration Statement or to enable such Holder to use the Prospectus for
resales of Registrable Securities until such Holder has returned a completed and
signed Notice and Questionnaire to the Company. Upon receipt of a completed and
signed Notice and Questionnaire, the Company shall as promptly as practicable
thereafter, and in any event upon the later of (A) ten (10) days after the date
of receipt of such Notice and Questionnaire or (B) if the use of the Prospectus
has been suspended by the Company under Section 2(c) hereof at the time of
receipt of
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the Notice and Questionnaire, ten (10) days after the expiration of the period
during which the use of the Prospectus is suspended, (1) if required by
applicable law, file with the Commission a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by applicable law, file a
supplement to the Prospectus or file any other required document so that the
Holder delivering such Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and the related Prospectus in
such a manner as to permit such Holder to deliver such Prospectus to purchasers
of the Registrable Securities in accordance with applicable law and, (2) if the
Company shall file a post-effective amendment to the Shelf Registration
Statement, use its reasonable efforts to cause such post-effective amendment to
be declared effective under the Securities Act as promptly as is practicable,
but in any event by the date that is forty-five (45) days after the date such
post-effective amendment is required by this clause to be filed. Notwithstanding
the foregoing, the Company shall not be required to file more than one
post-effective amendment to the Shelf Registration Statement during any thirty
(30) day period.
(iii) The term "ELECTING HOLDER" shall mean any Holder that
has returned a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(a)(i) or 3(a)(ii) hereof.
(b) The Company shall (i) furnish to each Electing Holder, prior
to the Effective Time, a copy of the Shelf Registration Statement initially
filed with the Commission, and shall furnish to such Holders, prior to the
filing thereof with the Commission, copies of each amendment thereto and each
amendment or supplement, if any, to the Prospectus included therein, and shall
use its reasonable efforts to reflect in each such document, at the Effective
Time or when so filed with the Commission, as the case may be, such comments as
such Holders and their respective counsel reasonably may propose and (ii) name
the Electing Holders as selling securityholders in the Shelf Registration
Statement.
(c) The Company shall promptly take such action as may be
necessary so that (i) the Shelf Registration Statement and any amendment thereto
and the Prospectus and any amendment or supplement thereto (and each report or
other document incorporated therein by reference in each case) complies in all
material respects with the Securities Act, the Exchange Act and the Rules and
Regulations, (ii) the Shelf Registration Statement and any amendment thereto
does not, when it becomes effective, contain an 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 and (iii) the Prospectus and any
amendment or supplement thereto, does not at any time during the Registration
Period include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(d) The Company shall promptly notify each Electing Holder in
writing:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when a Shelf Registration
Statement or any post-effective amendment thereto has become effective;
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(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for such purpose;
(iv) if the Company receives any notification with respect to
the suspension of the qualification of the securities included in the Shelf
Registration Statement for sale in any jurisdiction or the initiation of any
proceeding for such purpose; and
(v) of the happening of any event or the existence of any
state of facts that requires the making of any changes in the Shelf Registration
Statement or the Prospectus so that, as of such date, the Shelf Registration
Statement and the Prospectus do not contain an untrue statement of a material
fact and do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading.
A notice pursuant to clauses (ii) through (v) above may be accompanied by
an instruction to suspend the use of the Prospectus until the requisite changes
to the Prospectus have been made or such other action is taken to remedy the
fact or event that led to the suspension of the use of the Prospectus.
(e) The Company shall use its reasonable efforts: (i) to prevent
the issuance of any order suspending the effectiveness of the Shelf Registration
Statement; (ii) if issued, to obtain the withdrawal of any such order at the
earliest possible time; and (iii) to provide immediate notice to each Electing
Holder of the withdrawal of such order.
(f) The Company shall furnish to each Electing Holder, without
charge, at least one copy of the Shelf Registration Statement and all
post-effective amendments thereto, including financial statements and schedules,
and, if such Electing Holder so requests in writing, all reports, other
documents and exhibits that are filed with or incorporated by reference in the
Shelf Registration Statement.
(g) The Company shall, during the Registration Period, deliver to
each Electing Holder, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such Electing Holder may reasonably request. The Company consents (except
during the periods specified in Section 2(c) above or during the continuance of
any event described in clauses (ii) through (v) of Section 3(d) above) to the
use of the Prospectus and any amendment or supplement thereto by each of the
Electing Holders in connection with the offering and sale of the Registrable
Securities covered by the Prospectus and any amendment or supplement thereto
during the Registration Period.
(h) The Company shall: (i) prior to any offering of Registrable
Securities pursuant to the Shelf Registration Statement, register or qualify or
cooperate with the Electing Holders and their respective counsel in connection
with the registration or qualification of such Registrable Securities for offer
and sale under the securities or "blue sky" laws of such jurisdictions
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within the United States as any Electing Holder may reasonably request; (ii)
keep such registrations or qualifications in effect and comply with such laws so
as to permit the continuance of offers and sales in such jurisdictions for so
long as may be necessary to enable any Electing Holder or underwriter, if any,
to complete its distribution of Registrable Securities pursuant to the Shelf
Registration Statement; and (iii) take any and all other actions necessary or
advisable to enable the disposition in such jurisdictions of such Registrable
Securities; provided, however, that in no event shall the Company be obligated
to (A) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but for this
Section 3(h) or (B) file any general consent to service of process in any
jurisdiction where it is not then so subject.
(i) Except with respect to Registrable Securities in book-entry
only form, the Company shall cooperate with the Electing Holders to facilitate
the timely preparation and delivery of certificates representing Registrable
Securities to be sold pursuant to the Shelf Registration Statement, which shall
be free of any restrictive legends and in such denominations and registered in
such names as the Electing Holders may request a reasonable period of time prior
to sales of such Registrable Securities pursuant to the Shelf Registration
Statement.
(j) Upon the occurrence of any fact or event contemplated by
clauses (ii) through (v) of Section 3(d) above during the Registration Period,
the Company shall promptly prepare a post-effective amendment to the Shelf
Registration Statement or an amendment or supplement to the related Prospectus
or file any other required document or take such other action so that, (A) with
respect to clauses (ii) through (iv) of Section 3(d), the fact or event which
has led to the suspension of the use of the Prospectus is remedied, and (B) with
respect to clause (v) of Section 3(d), as thereafter delivered to purchasers of
the Registrable Securities included therein, the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading. If the Company provides notice to the Electing
Holders of the occurrence of any fact or event contemplated by clauses (ii)
through (v) of Section 3(d) above along with an instruction to suspend the use
of the Prospectus, the Electing Holder shall suspend the use of the Prospectus
until the requisite changes to the Prospectus have been made or such other
action is taken to remedy the fact or event that led to the suspension of the
use of the Prospectus.
(k) Not later than the Effective Time, the Company shall provide a
CUSIP number for the Registrable Securities that are debt securities.
(l) The Company will comply with all Rules and Regulations to the
extent and so long as they are applicable to the Shelf Registration Statement
and will make generally available to its securityholders (or otherwise provide
in accordance with Section 11(a) of the Securities Act) an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act, no later than
45 days after the end of a 12-month period (or 90 days, if such period is a
fiscal year) beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Shelf Registration Statement,
which statement shall cover such 12-month period. For purposes of this
paragraph, the term "effective date" with respect to the Shelf Registration
Statement shall have the meaning assigned to it in paragraph (c) of Rule 158 (or
any successor provision thereto) under the Securities Act.
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(m) Not later than the Effective Time, the Company shall cause the
Indenture to be qualified under the Trust Indenture Act. In connection with such
qualification, the Company shall cooperate with the Trustee and the Holders (as
defined in the Indenture) to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the terms of
the Trust Indenture Act; and the Company shall execute, and shall use its best
efforts to cause the Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required to be filed with
the Commission to enable such Indenture to be so qualified in a timely manner.
In the event that any such amendment or modification referred to in this Section
3(m) involves the appointment of a new trustee under the Indenture, the Company
shall appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
(n) The Company shall enter into such customary agreements
(including an underwriting agreement in customary form in the event of an
underwritten offering) and take all other appropriate action in order to
expedite and facilitate the registration and disposition of the Registrable
Securities.
(o) The Company shall: (i) make available for inspection by the
Electing Holders, any underwriter participating in any disposition pursuant to
the Shelf Registration Statement, and any attorney, accountant or other agent
retained by such Electing Holders or any such underwriter, at reasonable times
and in a reasonable manner, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries; and (ii)
cause the Company's officers, directors and employees to supply all information
reasonably requested by such Electing Holders or any such underwriter, attorney,
accountant or agent in connection with the Shelf Registration Statement, in each
case, as is customary for similar due diligence examinations; provided that such
inspection and information gathering shall, to the greatest extent possible, be
coordinated by one counsel designated by and on behalf of the Electing Holders
and other parties.
(p) The Company will use its best efforts to cause the Common
Stock issuable upon conversion of the Securities to be listed on the American
Stock Exchange or other stock exchange or trading system on which the Common
Stock primarily trades on or prior to the 60th calendar day following the
Closing Date.
(q) In the event that any broker-dealer registered under the
Exchange Act shall underwrite, participate as a member of an underwriting
syndicate or selling group or assist in the distribution of any Registrable
Securities covered by the Shelf Registration Statement, whether as an Electing
Holder or as an underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, the Company shall assist such broker-dealer in
complying with the requirements of the NASD Rules, including, without
limitation, by (i) if the NASD Rules shall so require, engaging a "qualified
independent underwriter" (as defined in Rule 2720 of the NASD Rules (or any
successor provision thereto)) to participate in the preparation of the
registration statement relating to such Registrable Securities, to exercise
usual standards of due diligence in respect thereto and to recommend the public
offering price of such Registrable Securities, (B) indemnifying any such
qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof, and (C) providing such information to
such broker-dealer as may be required in order for such broker-dealer to comply
with the requirements of the NASD Rules.
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(r) The Company shall use its reasonable efforts to take all other
steps necessary to effect the registration, offering and sale of the Registrable
Securities covered by the Shelf Registration Statement contemplated hereby.
(s) The Company may require each Electing Holder to furnish to the
Company such information regarding the Electing Holder and the distribution of
the Registrable Securities as the Company may from time to time reasonably
request for inclusion in the Shelf Registration Statement, and the Company may
exclude from such registration the Registrable Securities of any Electing Holder
that unreasonably fails to furnish such information within a reasonable time
after receiving such request.
4. Registration Expenses. The Company will bear all Registration
Expenses incurred in connection with the performance of its obligations
hereunder. The Company will also bear or reimburse the Electing Holders for the
reasonable fees and disbursements of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation, as counsel for the Holders in connection with the
Shelf Registration Statement. Each Electing Holder shall pay all underwriting
discounts and commissions and transfer taxes, if any, and, subject to the
preceding sentence, the expenses of its own counsel, relating to the sale or
disposition of such Electing Holder's Registrable Securities pursuant to the
Shelf Registration Statement.
5. Indemnification and Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Electing Holder and each person, if any, who
controls any Electing Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Shelf Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Electing Holder furnished to the Company in writing by such Electing Holder
expressly for use in the Shelf Registration Statement, any amendment thereof,
any preliminary prospectus, the Prospectus or any amendments or supplements
thereto. In connection with any underwritten offering permitted hereunder, the
Company will also indemnify the underwriters, their officers and directors and
each person who controls such underwriters (within the meaning of the Securities
Act and the Exchange Act) to the same extent as provided above with respect to
the indemnification of the Electing Holders, if requested by such Electing
Holders.
(b) Indemnification by the Electing Holders. Each Electing Holder
agrees, severally and not jointly, to indemnify and hold harmless the Company,
the directors of the Company, the officers of the Company who sign the Shelf
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or
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Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Shelf Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to information relating to such
Electing Holder furnished to the Company in writing by such Electing Holder
expressly for use in the Shelf Registration Statement, any amendment thereof,
any preliminary prospectus, the Prospectus or any amendments or supplements
thereto. In no event shall the liability of any Electing Holder hereunder be
greater in amount than the dollar amount of the proceeds received by such
Electing Holder from the sale of such Electing Holder's Registrable Securities
(after deducting any fees, discounts and commissions applicable thereto)
pursuant to the Shelf Registration Statement.
(c) Indemnification Procedures. In case any proceeding (including
any governmental investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to this Section 5, such person
(the "INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all indemnified parties, and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Electing Holders and such control persons of any Electing
Holders, such firm shall be designated in writing by the Electing Holders
holding a majority of the Registrable Securities covered by the Shelf
Registration Statement. In the case of any such separate firm for the Company
and such directors, officers and control persons of the Company, such firm shall
be designated in writing by the Company. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
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party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) Contribution Agreement. To the extent the indemnification
provided for in paragraph (a) or paragraph (b) of this Section 5 is unavailable
to an indemnified party or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying party under
such paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party or parties 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 Company on the one hand and the
Electing Holders on the other hand 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 or by the Electing Holders and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Electing Holders' respective obligations
to contribute pursuant to this Section 5(d) are several in proportion to the
respective principal amount of Registrable Securities of each such Electing
Holder that were registered pursuant to the Shelf Registration Statement, and
not joint.
(e) Contribution Amounts. The Company and the Electing Holders
agree that it would not be just or equitable if contribution pursuant to Section
5(d) were determined by pro rata allocation (even if the Electing Holders were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
Section 5(d). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in Section 5(d) shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Electing Holder shall be required to contribute
any amount in excess of the amount by which the total price at which Registrable
Securities sold by such Electing Holder exceeds the amount of any damages that
such Electing Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(f) Remedies Not Exclusive. The remedies provided for in this
Section 5 are not exclusive and shall not limit any rights or remedies that may
otherwise be available to any indemnified party at law or in equity.
(g) Survival of Provisions. The indemnity and contribution
provisions contained in this Section 5 shall remain operative and in full force
and effect regardless of (i) any termination
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of this Agreement, (ii) any investigation made by or on behalf of any Electing
Holder or any person controlling any Electing Holder, or by or on behalf of the
Company, its officers or directors or any person controlling the Company and
(iii) any sale of the Registrable Securities pursuant to the Shelf Registration
Statement.
6. Underwritten Offering. Any Holder who desires to do so may sell
Registrable Securities (in whole or in part) in an underwritten offering;
provided that (i) the Electing Holders of at least 33-1/3% in aggregate
principal amount of the Registrable Securities then covered by the Shelf
Registration Statement shall request such an offering and (ii) at least such
aggregate principal amount of such Registrable Securities shall be included in
such offering; and provided further that the Company shall not be obligated to
cooperate with more than one underwritten offering during the Registration
Period. Upon receipt of such a request, the Company shall provide all Holders
written notice of the request, which notice shall inform such Holders that they
have the opportunity to participate in the offering. In any such underwritten
offering, the Managing Underwriters will be selected by, and the underwriting
arrangements with respect thereto (including the size of the offering) will be
approved by, the holders of a majority of the Registrable Securities to be
included in such offering; provided, however, that such Managing Underwriters
and underwriting arrangements must be reasonably satisfactory to the Company. No
Holder may participate in any underwritten offering contemplated hereby unless
(a) such Holder agrees to sell such Holder's Registrable Securities to be
included in the underwritten offering in accordance with any approved
underwriting arrangements, (b) such Holder completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such approved
underwriting arrangements, and (c) if such Holder is not then an Electing
Holder, such Holder returns a completed and signed Notice and Questionnaire to
the Company in accordance with Section 3(a)(ii) hereof within a reasonable
amount of time before such underwritten offering. Notwithstanding the foregoing,
upon receipt of a request from the Managing Underwriters or a representative of
holders of a majority of the Registrable Securities to be included in an
underwritten offering to prepare and file an amendment or supplement to the
Shelf Registration Statement and Prospectus in connection with an underwritten
offering, the Company may delay the filing of any such amendment or supplement
for up to 30 days if the Board of Directors of the Company shall have determined
in good faith that the Company has a bona fide business reason for such delay.
7. Additional Interest.
(a) The occurrence of any of the following will constitute an
"EVENT OF DEFAULT" hereunder:
(i) the Company fails to file a Shelf Registration Statement
with the Commission on or prior to the 90th day following the Closing Date;
(ii) such Shelf Registration Statement is not declared
effective by the Commission on or prior to the 180th day following the Closing
Date;
-13-
(iii) the Company fails to file a post-effective amendment to
the Shelf Registration Statement, or the post-effective amendment is not
declared effective, within the periods required by Section 3(a)(ii) hereof; or
(iv) the Shelf Registration Statement ceases to be effective
(or the Company prevents or restricts Holders from effecting sales pursuant
thereto) for more than 45 days, whether or not consecutive, in any 90-day
period, or for more than 90 days, whether or not consecutive, during any 365-day
period. In calculating the 45 or 90 day period, days on which the Company has
been obligated to pay Additional Interest in respect of a prior Event of Default
under this clause (iv) within the applicable 90-day or 365-day period, as the
case may be, shall not be included.
(b) Upon the occurrence of any Event of Default, the Company shall
be required to pay additional interest ("ADDITIONAL INTEREST") at a rate per
annum equal to one-quarter of one percent (0.25%) of the aggregate principal
amount of Registrable Securities, from and including the Default Date (as
hereinafter defined) to but excluding the Default Termination Date (as
hereinafter defined) (the "DEFAULT PERIOD"); provided, however, that if the
Default Period exceeds 90 days, from and after the 91st day after the Default
Date such Additional Interest shall accrue at a rate per annum equal to one-half
of one percent (0.50%) of the aggregate principal amount of Registrable
Securities. The term "DEFAULT DATE" shall mean: (i) with respect to clause (i)
of Section 7(a) above, the 91st calendar day following the Closing Date; (ii)
with respect to clause (ii) of Section 7(a) above, the 181st calendar day
following the Closing Date; (iii) with respect to clause (iii) of Section 7(a)
above, the first day following the date upon which the post-effective amendment
was required to be filed or declared effective, as the case may be, pursuant to
Section 3(a)(ii) above; and (iv) with respect to clause (iv) of Section 7(a)
above, the 46th day of such 90-day period or the 91st day of such 365-day
period, as the case may be. The term "DEFAULT TERMINATION DATE" shall mean (x)
with respect to clauses (i) through (iii) of Section 7(a) above, the date the
Shelf Registration Statement or the post-effective amendment, as the case may
be, is either so filed or so filed and subsequently declared effective, as the
case may be, and (y) with respect to clause (iv) of Section 7(a) above, the date
the Shelf Registration Statement again becomes effective or the Holders of
Registrable Securities are again able to make sales under the Shelf Registration
Statement. Notwithstanding the foregoing, no Additional Interest shall accrue as
to any Registrable Security from and after the earlier of (1) the date such
security is no longer a Registrable Security and (2) the expiration of the
Registration Period.
(c) Any amounts to be paid as Additional Interest shall be paid
semi-annually in arrears, with the first semi-annual payment due on the first
Interest Payment Date (as defined in the Indenture), as applicable, following
the applicable Default Date. In determining the amount of Additional Interest to
be paid with respect to shares of Common Stock issued upon conversion of the
Securities, the rate set forth in Section 7(b) hereof shall be applied to the
Conversion Price(s) (as defined in the Indenture) in effect during the
applicable Default Period.
(d) Except as provided in Section 8(a) hereof, the Additional
Interest shall be the exclusive monetary remedy available to the Holders for
Events of Default. In no event shall the Company be required to pay Additional
Interest in excess of the applicable maximum amount of
-14-
one-half of one percent (0.5%) set forth above, regardless of whether one or
multiple Events of Default exist.
8. Miscellaneous.
(a) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if the Company fails to perform any of
its obligations hereunder and that the Initial Purchaser and the Holders from
time to time may be irreparably harmed by any such failure, and accordingly
agree that the Initial Purchaser and such Holders, in addition to any other
remedy to which they may be entitled at law or in equity and without limiting
the remedies available to the Electing Holders under Section 7 hereof, shall be
entitled to compel specific performance of the obligations of the Company under
this Agreement in accordance with the terms and conditions of this Agreement, in
any court of the United States or any State thereof having jurisdiction.
(b) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, except by the Company and the
written consent of the Holders of a majority in principal amount of the
Registrable Securities then outstanding (provided that holders of Common Stock
issued upon conversion of Securities shall not be deemed holders of Common
Stock, but shall be deemed to be holders of the aggregate principal amount of
Securities from which such Common Stock was converted). Each Holder of
Registrable Securities outstanding at the time of any such amendment, waiver or
consent or thereafter shall be bound by any amendment, modification, supplement,
waiver or consent effected pursuant to this Section 8(b).
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be given as provided in the Indenture.
(d) Parties in Interest. The parties to this Agreement intend that
all Holders of Registrable Securities shall be entitled to receive the benefits
of this Agreement and that any Electing Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration Statement. All
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and assigns
of the parties hereto and any Holder from time to time of the Registrable
Securities. In the event that any transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by gift, bequest, purchase,
operation of law or otherwise, such transferee shall, without any further
writing or action of any kind, be entitled to receive the benefits of and, if an
Electing Holder, be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement to the aforesaid
extent.
(e) Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
(f) Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
-15-
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
(h) Partial Enforceability. The invalidity or unenforceability of
any section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other section, paragraph or provision hereof.
If any section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
(i) Survival. The respective indemnities, agreements,
representations, warranties and other provisions set forth in this Agreement or
made pursuant hereto shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Electing Holder, any director, officer or partner of such Holder, or any
controlling person of any of the foregoing, and shall survive the transfer and
registration of the Registrable Securities of such Holder.
[Remainder of page intentionally left blank]
-16-
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
COLLEGIATE PACIFIC INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
Accepted as of the date hereof
Xxxxxx Xxxxxx Partners LLC
By: Xxxxxx Xxxxxx Partners LLC
By: /s/ Xxxxxxxxx Xxxxxxx
-----------------------------------
Name: Alexacnder Chefetz
Title: Partner
APPENDIX A
Completed by:_________________________
NOTICE OF REGISTRATION STATEMENT
AND
SELLING SECURITYHOLDER QUESTIONNAIRE
5.75% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2009
OF
COLLEGIATE PACIFIC INC.
Collegiate Pacific, Inc. ("Collegiate Pacific") has filed or intends to
file with the U.S. Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (the "Shelf Registration Statement") for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended
(the "Securities Act"), 5.75% Convertible Senior Subordinated Notes due 2009
(the "Notes") or common stock, $0.01 par value per share (the "Common Stock"
and, together with the Notes, the "Securities"), of Collegiate Pacific in
accordance with the terms of that certain Registration Rights Agreement, dated
as of November 26, 2004 (the "Registration Rights Agreement"), between
Collegiate Pacific and the initial purchaser named therein. All capitalized
terms not otherwise defined herein shall have the meaning ascribed thereto in
the Registration Rights Agreement.
Each beneficial owner of Securities is entitled to the benefits of the
Registration Rights Agreement. In order to sell or otherwise dispose of any
Securities pursuant to the Shelf Registration Statement, a beneficial owner of
Securities generally will be required to be named as a selling securityholder in
the related prospectus, deliver a prospectus to purchasers of Securities and be
bound by those provisions of the Registration Rights Agreement applicable to
such beneficial owner (including certain indemnification provisions described
below). Beneficial owners that do not complete this Notice and Questionnaire and
deliver it to Collegiate Pacific as provided below will not be named as selling
securityholders in the prospectus and therefore will not be permitted to sell
any Securities pursuant to the Shelf Registration Statement. Beneficial owners
are encouraged to complete and deliver this Notice and Questionnaire prior to
the effectiveness of the Shelf Registration Statement so that such beneficial
owners may be named as selling securityholders in the related prospectus at the
time of effectiveness. Upon receipt of a completed Notice and Questionnaire from
a beneficial owner following the effectiveness of the Shelf Registration
Statement, Collegiate Pacific will, as promptly as practicable, file such
amendments to the Shelf Registration Statement or supplements to the related
prospectus as are necessary to permit such holder to deliver such prospectus to
purchasers of Securities. Collegiate Pacific has agreed to pay additional
amounts pursuant to the Registration Rights Agreement under certain
circumstances set forth therein.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Securities are advised to consult
their own securities law counsel regarding the consequences of being named or
not being named as a selling securityholder in the Shelf Registration Statement
and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Securities hereby gives notice to Collegiate Pacific of its intention to sell or
otherwise dispose of Securities beneficially owned by it and listed below in
Item 3 (unless otherwise specified under such Item 3) pursuant to the Shelf
Registration Statement. The undersigned, by signing and returning this Notice
and Questionnaire, understands that it will be bound by the terms and conditions
of this Notice and Questionnaire and the Registration Rights Agreement.
Pursuant to the Registration Rights Agreement, the undersigned has agreed
to indemnify and hold harmless Collegiate Pacific's directors and officers and
each person, if any, who controls Collegiate Pacific within the meaning of
either Section 15 of the Securities Act or Section 20 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), from and against certain losses
arising in connection with statements concerning the undersigned made in
Collegiate Pacific's Shelf Registration Statement or the related prospectus in
reliance upon the information provided in this Notice and Questionnaire.
If the Selling Securityholder transfers all or any portion of the
Securities listed in Item 3 below after the date on which such information is
provided to Collegiate Pacific, the Selling Securityholder agrees to notify the
transferee(s) at the time of the transfer of its rights and obligations under
this Notice and Questionnaire and the Registration Rights Agreement.
QUESTIONNAIRE
Please respond to every item, even if your response is "none." If you need
more space for any response, please attach additional sheets of paper. Please be
sure to indicate your name and the number of the item being responded to on each
such additional sheet of paper, and to sign each such additional sheet of paper
before attaching it to this Questionnaire. Please note that you may be asked to
answer additional questions depending on your responses to the following
questions.
IF YOU HAVE ANY QUESTIONS ABOUT THE CONTENTS OF THIS QUESTIONNAIRE OR AS
TO WHO SHOULD COMPLETE THIS QUESTIONNAIRE, PLEASE CONTACT XXXXXXX X. XXXXXX AT
COLLEGIATE PACIFIC INC. AT TELEPHONE NUMBER: (000) 000-0000.
-2-
COMPLETED QUESTIONNAIRES SHOULD BE RETURNED AS SOON AS POSSIBLE BUT NO LATER
THAN ________ TO COLLEGIATE PACIFIC INC. AS FOLLOWS:
COPY BY FACSIMILE TO INVESTOR RELATIONS FAX: (000) 000-0000
With The Original Copy To Follow To:
COLLEGIATE PACIFIC INC.
00000 XXXXXX XXXXX, XXXXX 000
XXXXXX, XX 00000
ATTENTION: INVESTOR RELATIONS
The undersigned hereby provides the following information to Collegiate Pacific
and represents and warrants that such information is accurate and complete:
1. Your Identity and Background - as the Beneficial Holder of the Securities.
(a) Your full legal name:
(b) Your business address (including street address) (or residence if no
business address), telephone number and facsimile number:
Address:
____________________________________________________________________
____________________________________________________________________
Telephone No.:______________________________________________________
Fax No.:____________________________________________________________
(c) Are you a broker-dealer registered pursuant to Section 15 of the
Exchange Act?
[ ] Yes.
[ ] No.
(d) If your response to Item 1(c) above is no, are you an "affiliate" of
a broker-dealer registered pursuant to Section 15 of the Exchange
Act?
[ ] Yes.
[ ] No.
For the purposes of this Item 1(d), an "affiliate" of a registered
broker-dealer shall include any company that directly, or indirectly
through one or more intermediaries, controls, or is controlled by,
or is under common control with, such broker-dealer, but does not
include any individuals employed by such broker-dealer or its
affiliates.
(e) If your response to 1(d) above is yes, please name the
broker-dealer(s) with whom you are affiliated.
____________________________________________________________________
____________________________________________________________________
(f) Full legal name of person through which you hold the Securities
(i.e. name of your broker or the DTC participant, if applicable,
through which your Registered Securities are held):
Name of broker:_____________________________________________________
DTC No.:____________________________________________________________
Contact person:_____________________________________________________
Telephone No.:______________________________________________________
2. Your Relationship with Collegiate Pacific Inc.
(a) Have you or any of your affiliates, officers, directors or principal
equity holders (owners of 5% or more of your equity securities) held
any position or office or have you had any other material
relationship with Collegiate Pacific (or its predecessors or
affiliates) within the past three years?
[ ] Yes.
[ ] No.
(b) If your response to item 2(a) above is yes, please state the nature
and duration of your relationship with Collegiate Pacific:
3. Your Interest in the Securities.
(a) State the type of Securities (Notes or Common Stock) and the
principal amount or number of such Securities beneficially owned by
you. Check any of the following that applies to you.
[ ] I own Notes:
Principal amount of the Notes beneficially owned:
________________________________________________________________
[ ] I own shares of Common Stock, that were issued upon conversion
of the Notes:
Number of shares of the Common Stock beneficially owned:
________________________________________________________________
(b) Other than as set forth in your response to Item 3(a) above, do you
beneficially own any other securities of Collegiate Pacific Inc.?
[ ] Yes.
[ ] No.
(c) If your answer to item 3(b) above is yes, state the type, the
aggregate amount and, if other than Common Stock, the CUSIP No(s).
of such other securities of Collegiate Pacific beneficially owned by
you:
Type:_______________________________________________________________
Aggregate amount:___________________________________________________
CUSIP No(s).________________________________________________________
(d) Did you acquire the securities listed in Item 3(a) above in the
ordinary course of business?
[ ] Yes.
[ ] No.
(e) At the time of your purchase of the securities listed in Item 3(a)
above, did you have any agreements or understandings, directly or
indirectly, with any person to distribute the securities?
[ ] Yes.
[ ] No.
(f) If your response to Item 3(e) above is yes, please describe such
agreements or understandings.
____________________________________________________________________
____________________________________________________________________
4. Nature of Your Ownership.
(a) (i) If the name of the beneficial holder of the Securities set forth
in your response to Item 1(a) above is that of a limited
partnership, state the names, business addresses (including street
address) (or residence address, if no business address), telephone
numbers and facsimile numbers of the general partners of such
limited partnership:
BUSINESS OR TELEPHONE AND
FULL LEGAL NAME RESIDENCE ADDRESS FACSIMILE NUMBERS
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
(ii) With respect to each general partner listed in Item 4(a)(i) above
who is not a natural person, and is not publicly held, name each
shareholder (or other interest holder) of such general partner. If
any of these named shareholders or other interest holders are not
natural persons or publicly held entities, please provide the same
information. This process should be repeated until you reach
natural persons or a publicly held entity.
BUSINESS OR TELEPHONE AND
FULL LEGAL NAME RESIDENCE ADDRESS FACSIMILE NUMBERS
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
(b) (i) If the name of the beneficial holder of the Securities set forth
in your response to Item 1(a) above is that of a limited liability
company, state the names, business addresses (including street address)
(or residence address, if no business address), telephone numbers and
facsimile numbers of the managing members of such limited liability
company.
BUSINESS OR TELEPHONE AND
FULL LEGAL NAME RESIDENCE ADDRESS FACSIMILE NUMBERS
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
(ii) With respect to each managing member listed in Item 4(b)(i) above
who is not a natural person, and is not publicly held, name each
shareholder (or other interest
holder) of such managing member. If any of these named shareholders or
other interest holders are not natural persons or publicly held entities,
please provide the same information. This process should be repeated until
you reach natural persons or a publicly held entity.
BUSINESS OR TELEPHONE AND
FULL LEGAL NAME RESIDENCE ADDRESS FACSIMILE NUMBERS
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
(c) (i) If the name of the beneficial holder of the Securities set forth
in your response to Item l(a) above is that of a corporation that is
not publicly held, state the names, business addresses (including
street address) (or residence address, if no business address),
telephone numbers and facsimile numbers of the controlling
shareholders (the "Controlling Persons").
BUSINESS OR TELEPHONE AND
FULL LEGAL NAME RESIDENCE ADDRESS FACSIMILE NUMBERS
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
(ii) If any Controlling Person is not a natural person and is not a
publicly held entity, name each controlling shareholder or other
interest holder of such Controlling Person. If any of these named
shareholders or other interest holders are not natural persons or
publicly held entities, please provide the same information. This
process should be repeated until you reach natural persons or a
publicly held entity.
BUSINESS OR TELEPHONE AND
FULL LEGAL NAME RESIDENCE ADDRESS FACSIMILE NUMBERS
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
(d) If the beneficial holder of the Securities set forth in response to
Item 1(a) is an investment or hedge fund, name the individual or
individuals who have or share voting or investment power over the
Securities and describe their relationship with the beneficial owner.
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
IF YOU NEED MORE SPACE FOR THIS RESPONSE, PLEASE ATTACH ADDITIONAL SHEETS
OF PAPER. PLEASE BE SURE TO INDICATE YOUR NAME AND THE NUMBER OF THE ITEM BEING
RESPONDED TO ON EACH SUCH ADDITIONAL SHEET OF PAPER, AND TO SIGN EACH SUCH
ADDITIONAL SHEET OF PAPER BEFORE ATTACHING IT TO THIS QUESTIONNAIRE. PLEASE NOTE
THAT YOU MAY BE ASKED TO ANSWER ADDITIONAL QUESTIONS DEPENDING ON YOUR RESPONSES
TO THE FOLLOWING QUESTIONS.
5. Plan of Distribution.
Except as set forth below, the undersigned (including its donees or pledgees)
intends to distribute the Securities listed above in Item 3 pursuant to the
Shelf Registration Statement only as follows (if at all): Such Securities may be
sold from time to time directly by the undersigned or, alternatively, through
underwriters, broker-dealers or agents. If the Securities are sold through
underwriter broker-dealers or agents, the Selling Securityholder will be
responsible for underwriting discounts or commissions or agents' commissions.
Such Securities may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying prices determined at
the time of sale or at negotiated prices. Such sales may be effected in
transactions (which may involve block transactions) (i) on any national
securities exchange or quotation service on which the Securities may be listed
or quoted at the time of sate, (ii) in the over-the-counter market, (iii) in
transactions otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. In connection
with sales of the Securities or otherwise, the undersigned may enter into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the Securities in the course of hedging positions they assume. The
undersigned, may also sell Securities short and deliver Securities to close out
short positions, or loan or pledge Securities to broker-dealers that in turn may
sell such securities.
State any exceptions here:
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
Note: In no event will such method(s) of distribution take the form of an
underwritten offering of the Securities without the prior agreement of
Collegiate Pacific in its sole discretion.
The undersigned acknowledges that its obligation to comply with the provisions
of the Exchange Act and the rules thereunder relating to stock manipulation,
particularly Regulation M thereunder (or any successor rules or regulations), in
connection with any offering of Securities pursuant to the Registration Rights
Agreement. The undersigned agrees that neither it nor any person acting on its
behalf will engage in any transaction in violation of such provisions.
The undersigned hereby acknowledges its obligations under the Registration
Rights Agreement to indemnify and hold harmless certain persons as set forth
therein. Pursuant to the Registration Rights
Agreement, Collegiate Pacific has agreed under certain circumstances to
indemnify the undersigned against certain liabilities.
In accordance with the undersigned's obligation under the Registration Rights
Agreement to provide such information as may be required by law (including
interpretations of the staff of the Commission with which Collegiate Pacific is
required to comply) for inclusion in the Shelf Registration Statement, the
undersigned agrees to promptly notify Collegiate Pacific of any inaccuracies or
changes in the information provided herein that may occur subsequent to the date
hereof at any time while the Shelf Registration Statement remains effective. IN
PARTICULAR, THE UNDERSIGNED AGREES TO PROMPTLY NOTIFY COLLEGIATE PACIFIC IF IT
SELLS OR OTHERWISE TRANSFERS ANY OF THE SECURITIES OTHER THAN PURSUANT TO THE
SHELF REGISTRATION STATEMENT.
All notices to the beneficial owner hereunder and pursuant to the Registration
Rights Agreement shall be made in writing to the undersigned at the address set
forth in Item 1(b) of this Notice and Questionnaire.
By signing below, the undersigned acknowledges that it is the beneficial owner
of the Securities set forth herein, represents that the information provided
herein is accurate, consents to the disclosure of the information contained in
this Notice and Questionnaire and the inclusion of such information in the Shelf
Registration Statement and the related prospectus. The undersigned understands
that such information will be relied upon by Collegiate Pacific in connection
with the preparation or amendment of the Shelf Registration Statement and the
related prospectus.
Once this Notice and Questionnaire is executed by the undersigned beneficial
owner and received by Collegiate Pacific, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives and assigns of Collegiate
Pacific and the undersigned beneficial owner. This Agreement shall be governed
in all respects by the laws of the State of New York.
IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Name of Beneficial Owner:
_____________________________________________
(Please Print)
Signature:___________________________________
Name and Title:______________________________
(Please Print)
Date:________________________________________
