REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as
of the ____ day of April, 1998, by and among XXXXX GOLF, INC., a Delaware
corporation (the "Company"), and the undersigned stockholders of the Company
(collectively, the "Stockholders").
IN CONSIDERATION OF the agreement by the Stockholders to terminate the
Stockholder's Agreement dated December 20, 1995 (the "Stockholder's
Agreement") by and among the Stockholders and the Company and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company hereby grants (1) to the Stockholders listed on
ANNEX A attached hereto certain rights to include shares of the Company's
common stock, par value $.001 per share (the "Common Stock"), held by such
Stockholders on the date hereof in the Company's initial underwritten public
offering (the "IPO") and (2) to each of the Stockholders, certain demand and
piggyback registration rights arising after, and existing for a period of
five (5) years from, the closing of the IPO with respect to the shares of
Common Stock held by the undersigned on the date hereof, in each case, on the
terms and conditions set forth below. As used in this Agreement, the term
"Holders" (whether singular or plural) includes only the Stockholders holding
Registrable Shares (as hereinafter defined) and other persons holding
Registrable Shares to whom registration rights have been transferred in
compliance with Section 4(c) hereof. Additionally, as used herein,
"Registrable Shares" shall mean (i) shares of Common Stock held by the
Stockholders on the date hereof (or subsequently transferred pursuant to
Section 4(c) hereof) and (ii) any Common Stock issued as a dividend or other
distribution with respect to or in exchange for or in replacement of the
shares referenced in (i) above; PROVIDED, HOWEVER, that Registrable Shares
shall not include any shares of Common Stock (x) which have previously been
registered or which have been sold to the public either pursuant to a
registration statement or Rule 144 promulgated under the Securities Act of
1933, as amended (the "Act"), (y) which are held by a Stockholder and whose
aggregate number is less than the amount of securities that may be sold in
any three month period in reliance upon Rule 144 (e) promulgated under the
Act, irrespective of whether the other requirements of Rule 144 have been
satisfied to allow for the sale of such shares thereunder or (z) which have
been sold in a private transaction in which the transferor's rights under
this Agreement are not assigned.
1. REQUESTED REGISTRATIONS.
(a) If the Company shall receive from any Holder or Holders who in
the aggregate hold not less than Forty Percent (40%) of the outstanding
Registrable Shares (the "Initiating Holders") at any time not earlier than
the latter of (i) the expiration of any applicable "lock-up" period
prescribed by the underwriters in connection with an IPO and (ii) the date on
which the Company shall become eligible to use the Form S-3 registration
statement (or any successor to such form) for the purpose of registering
outstanding securities for the account of any person other than the Company,
a written request that the Company effect any registration with respect to
all or a part of the Registrable Shares, the Company will:
(i) promptly give written notice of the proposed registration to
all other Holders; and
(ii) as soon as practicable, use reasonable commercial efforts to
effect such registration (including, without limitation, filing post-
effective amendments, appropriate qualifications under applicable blue
sky or other state securities laws, and appropriate compliance with
the Act) as would permit or facilitate the sale and distribution of
all or such portion of such Registrable Shares as are specified in
such request, together with all or such portion of the Registrable
Shares of any Holder or Holders joining in such request as are
specified in a written request received by the Company within twenty
(20) days after such written notice from the Company is mailed or
delivered.
(b) The Company shall not be obligated to effect, or to take any
action to effect, any registration pursuant to Section 1(a):
(i) in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in
effecting such registration, qualification, or compliance, unless the
Company is already subject to service in such jurisdiction and except
as may be required by the Act;
(ii) after the Company has initiated one (1) such registration
pursuant to Section 1(a) (counting for this purpose only a
registration statement which has been declared or ordered effective by
the U.S. Securities and Exchange Commission (the "Commission") and
maintained for a period of seventy-five (75) total days);
(iii) during the period starting with the date sixty (60) days
prior to the Company's good faith estimate of the date of filing of,
and ending on a date one hundred eighty (180) days after the effective
date of, a Company-initiated registration; provided that the Company
is actively employing in good faith all commercially reasonable
efforts to cause such registration statement to become effective; or
(iv) if the Company has given a Notice of Incidental Registration
Rights (as defined in Section 2(a) below).
(c) Subject to clauses (i) - (iv) of Section 1(b) above, the
Company shall file a registration statement covering the Registrable Shares
so requested to be registered as soon as practicable after receipt of the
request of the Initiating Holders; PROVIDED, HOWEVER, that if (i) in the good
faith judgment of the Board of Directors of the Company, such registration
would be detrimental to the Company and the Board of Directors of the Company
concludes, as a result, that it is necessary to defer the filing of such
registration statement at such time, and (ii) the Company shall furnish to
such Holders a certificate signed by the President of the Company
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stating that in the good faith judgment of the Board of Directors of the
Company, it would be detrimental to the Company for such registration
statement to be filed in the near future and that it is, therefore, necessary
to defer the filing of such registration, then the Company shall have the
right to defer such filing for a period of not more than one hundred eighty
(180) days after receipt of the request of the Initiating Holders.
(d) The registration statement filed pursuant to the request of the
Initiating Holders may include other securities of the Company, with respect
to which registration rights have been granted, and may include securities of
the Company being sold for the account of the Company.
(e) The Company will pay all costs and expenses necessary to effect
the registration of Registrable Shares pursuant to Section 1(a), including
the fees and expenses of its counsel, the fees and expenses of its
accountants, all other costs and expenses incident to the preparation,
printing and filing under the Act of any such registration statement, each
prospectus and all amendments and supplements thereof, the cost of furnishing
to the Holders copies of such registration statement, each preliminary
prospectus, the final prospectus and each amendment and supplement thereto,
all expenses incident to delivery of the Registrable Shares to any
underwriter or underwriters, but the Company will not pay any underwriting
commissions and discounts and brokerage commissions and fees payable with
respect to Registrable Shares by any Holder or any legal fees and expenses
incurred by any Holder.
(f) If, after the Company has effected the registration specified
in Section 1(a) (as determined in accordance with Section 1(b)(ii) hereof),
the Company shall receive from any Holder or Holders who in the aggregate
hold not less than Fifty Percent (50%) of the then outstanding Registrable
Shares (the "Triggering Holders"), a written request that the Company effect
any registration with respect to all or a part of the Registrable Shares, the
Company will:
(i) promptly give written notice of the proposed registration to
all other Holders; and
(ii) as soon as practicable, use reasonable commercial efforts to
effect such registration (including, without limitation, filing post-
effective amendments, appropriate qualifications under applicable blue
sky or other state securities laws, and appropriate compliance with
the Act) as would permit or facilitate the sale and distribution of
all or such portion of such Registrable Shares as are specified in
such request, together with all or such portion of the Registrable
Shares of any Holder or Holders joining in such request as are
specified in a written request received by the Company within twenty
(20) days after such written request from the Company is mailed or
delivered.
(g) The Company shall not be obligated to effect, or take any
action to effect, any registration pursuant to Section 1(f):
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(i) in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in
effecting such registration, qualification, or compliance, unless the
Company is already subject to service in such jurisdiction and except
as may be required by the Act;
(ii) after the Company has initiated two (2) such registrations
pursuant to Section 1(f) (counting for this purpose only registration
statements which have been declared or ordered effective by the
Commission and maintained for a period of 75 total days);
(iii) during the period starting with the date sixty (60) days
prior to the Company's good faith estimate of the date of filing of,
and ending on a date one hundred eighty (180) days after the effective
date of, a Company-initiated registration; provided that the Company
is actively employing in good faith all commercially reasonable
efforts to cause such registration statement to become effective; or
(iv) if the Company has given a Notice of Incidental
Registration.
(h) Subject to clauses (i) - (iv) of Section 1(g) above, the
Company shall file a registration statement covering the Registrable Shares
so requested to be registered as soon as practicable after receipt of the
request of the Triggering Holders; PROVIDED, HOWEVER, that if (i) in the good
faith judgment of the Board of Directors of the Company, such registration
would be detrimental to the Company and the Board of Directors of the Company
concludes, as a result, that it is necessary to defer the filing of such
registration statement at such time, and (ii) the Company shall furnish to
such Holders a certificate signed by the President of the Company stating
that in the good faith judgment of the Board of Directors of the Company it
would be detrimental to the Company for such registration statement to be
filed in the near future and that it is, therefore, necessary to defer the
filing of such registration, then the Company shall have the right to defer
such filing for a period of not more than one hundred eighty (180) days after
receipt of the request of the Triggering Holders.
(i) Each of the registration statements filed pursuant to the
request of the Triggering Holders may include other securities of the
Company, with respect to which registration rights have been granted, and may
include securities of the Company being sold for the account of the Company.
(j) The Triggering Holders, together with the other Holders joining
in such registration, shall, on a pro rata basis, pay all costs and expenses
necessary to effect the registrations of Registrable Shares pursuant to
Section 1(f), including the fees and expenses of the Company's counsel, the
fees and expenses of the Company's accountants, all of the costs and expenses
incident to the preparation, printing and filing under the Act of any such
registration statement, each prospectus and all amendments and supplements
thereof, the cost of furnishing to the Holders copies of such registration
statement, each preliminary prospectus, the final
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prospectus and each amendment and supplement thereto, all expenses incident
to delivery of the Registrable Shares to any underwriter or underwriters, any
underwriting commissions and discounts and brokerage commissions and fees
payable with respect to Registrable Shares sold by any Holder or any legal
fees and expenses incurred by any Holder. The Company may require, as a
precondition to commencing work on any registration statement filed in
accordance with Section 1(f) hereof, that the Triggering Holders, together
with the other Holders joining therein, provide a reasonable and customary
retainer to the Company and/or its advisors in order to offset certain of the
expenses contemplated hereby.
2. INCIDENTAL REGISTRATIONS.
(a) If at any time during the five (5) calendar years after the
consummation (which shall mean closing and funding) of an IPO of the Company,
the Company shall propose to register any Common Stock under the Act,
pursuant to a registration statement other than on Form S-4 or S-8 or any
successor to such forms (and specifically excluding the registration
statement relating to an IPO and all prospectus supplements and
post-effective amendments relating thereto) the Company shall give written
notice (the "Notice of Incidental Registration Rights") of such proposed
registration to all Holders as then reflected on its records. The Company
agrees to use reasonable commercial efforts to include in any such
registration statement the Registrable Shares held by any Holder who shall
deliver to the Company, not more than ten (10) days after receipt of the
Notice of Incidental Registration Rights, a written request for such
inclusion. Such written request may specify all or a part of a Holder's
Registrable Shares.
(b) If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the Notice of Incidental Registration Rights
given pursuant to Section 2(a). In such event, the right of any Holder to
registration pursuant to this Section 2 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Shares in the underwriting to the extent provided
herein. All Holders proposing to distribute their Registrable Shares through
such underwriting shall (together with the Company) enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters selected by the Company. If the managing
underwriter of such registration advises the Company in writing that in its
opinion the total number or dollar amount of securities requested to be
included in such registration exceeds the number or dollar amount of shares
of Common Stock that can be sold in such offering, the Company will include
in such offering: (i) first, all shares of Common Stock the Company proposes
to sell; (ii) second, up to the full number or dollar amount of Registrable
Shares requested by Holders to be included in such registration in excess of
the number or total dollar amount of shares of Common Stock the Company
proposes to sell which, in the opinion of such underwriter, can be sold,
allocated pro rata among the Holders on the basis of the number of
Registrable Shares requested to be included therein by each such Holder.
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(c) Upon the occurrence of each proposed registration under Section
2(a), unless the Company shall determine to terminate the same, the Company
will:
(i) as soon as practicable, use reasonable commercial efforts to
effect such registration (including, without limitation, filing post-
effective amendments, appropriate qualifications under applicable blue
sky or other state securities laws, and appropriate compliance with
the Act) as would permit or facilitate the sale and distribution of
the Registrable Shares which the Company has been requested to
register; and
(ii) use reasonable commercial efforts to have such registration
statement declared effective.
(d) The Company will pay all costs and expenses necessary to effect
the registration of Registrable Shares pursuant to Section 2(a), including
the fees and expenses of its counsel, the fees and expenses of its
accountants, all other costs and expenses incident to the preparation,
printing and filing under the Act of any such registration statement, each
prospectus and all amendments and supplements thereof, the cost of furnishing
to the Holders copies of such registration statement, each preliminary
prospectus, the final prospectus and each amendment and supplement thereto,
all expenses incident to delivery of the Registrable Shares to any
underwriter or underwriters, but the Company will not pay any underwriting
commissions and discounts and brokerage commissions and fees payable with
respect to Registrable Shares sold by any Holder or any legal fees and
expenses incurred by any Holder.
3. REGISTRATION IN CONNECTION WITH IPO.
(a) The Company hereby agrees to use reasonable commercial efforts
to permit the Stockholders to include up to that number of shares of Common
Stock listed next to each such Stockholder's name on ANNEX A attached hereto
("Secondary Shares") in the registration statement relating to the Company's
IPO.
(b) Each of the Stockholders hereby acknowledges and agrees that
the registration relating to the IPO involves an underwriting. As such, each
of the Stockholder's right to participation pursuant to this Section 3 shall
be conditioned upon such Stockholder's participation in such underwriting and
the inclusion of such Stockholder's Secondary Shares in the underwriting to
the extent provided herein. All Stockholders agree to enter into an
underwriting agreement in form acceptable to the Company with the
representative of the underwriters selected by the Company. If the managing
underwriter of such registration advises the Company in writing that in its
opinion the total number or dollar amount of securities requested to be
included in such registration exceeds the number or dollar amount of shares
of Common Stock that can be sold in the IPO or that the aggregate number of
Secondary Shares to be included in such registration exceeds the number that
should be sold in the IPO given the current state of the market or such other
factors as the managing underwriter deems relevant, the Company will include
in such offering: (i) first, all shares of Common Stock the Company
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proposes to sell; and (ii) second, up to the whole number of Secondary Shares
held by the Stockholders in excess of the number of shares of Common Stock
the Company proposes to sell which, in the sole opinion of such underwriter,
can or should be sold, allocated pro rata among the Stockholders on the basis
of the number of Secondary Shares held by each Stockholder.
(c) Upon the occurrence of the proposed IPO, unless the Company
shall determine to terminate the IPO, the Company will (i) as soon as
practicable, use reasonable commercial efforts to effect such registration
(including, without limitation, filing post-effective amendments, appropriate
qualifications under applicable blue sky or other state securities laws, and
appropriate compliance with the Act) as would permit or facilitate the sale
and distribution of the Secondary Shares; and (ii) use reasonable commercial
efforts to have such registration statement declared effective.
(d) The Company will pay all costs and expenses necessary to
effect the registration of the Secondary Shares in the IPO pursuant to this
Section 3, including the fees and expenses of its counsel, the fees and
expenses of its accountants, all other costs and expenses incident to the
preparation, printing and filing under the Act of any such registration
statement, each prospectus and all amendments and supplements thereof, the
cost of furnishing to the Stockholders copies of such registration statement,
each preliminary prospectus, the final prospectus and each amendment and
supplement thereto, all expenses incident to delivery of the Secondary Shares
to any underwriter or underwriters, but the Company will not pay any
underwriting commissions and discounts and brokerage commissions and fees
payable with respect to the Secondary Shares sold by any Stockholder or any
legal fees and expenses incurred by any Stockholder.
4. ADDITIONAL AGREEMENTS REGARDING REGISTRATION.
(a) In addition to the obligations set forth elsewhere herein, the
Company shall (in connection with any registration effected under Sections 1(a),
1(f), 2(a) or 3(a) hereof):
(i) notify the Holders participating therein, of the time when
the registration statement has been declared effective;
(ii) prepare and promptly file with the Commission and promptly
notify the Holders of the filing of such amendment or supplement to
such registration statement or prospectus as may be necessary to
correct any statement or omission, if at any time when a prospectus
relating to any security is required to be delivered under the Act,
any event shall have occurred as a result of which any such prospectus
or any other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading;
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(iii) in case the Holders or any underwriter for the Holders is
required to deliver a prospectus, at a time when the prospectus then
in effect may no longer be used under the Act, prepare such amendment
or amendments to such registration statement and such prospectus or
prospectuses as may be necessary to permit compliance with the
requirements of Section 10 of the Act;
(iv) advise the Holders promptly after it shall receive notice or
obtain knowledge thereof of the issuance of any stop order by the
Commission suspending the effectiveness of any such registration
statement or of the initiation or threatening of any proceeding for
that purpose; and
(v) furnish to the Holders as soon as available one copy of any
such registration statement and such reasonable number of copies of
each preliminary or final prospectus, or supplement required to be
prepared pursuant to this Agreement that each Holder may request.
(b) Each Holder who has any Registrable Shares included in any
registration statement (whether the Registrable Shares are included under
Sections 1(a), 1(f), 2(a) or 3(a) hereof) agrees by acquisition of such
Registrable Shares as follows:
(i) To furnish to the Company, in writing, such appropriate
information and covenants regarding the proposed methods of sale or
other disposition of the Registrable Shares as the Company, any
underwriter, the Commission and/or any state or other regulatory
authority may request;
(ii) To execute, deliver and/or file with or supply to the
Company, any underwriter, the Commission and/or any state or other
regulatory authority such information, documents, representations,
undertakings and/or agreements (A) necessary to carry out the
provisions of this Agreement, (B) necessary to effect the registration
or qualification of the Registrable Shares under the Act and/or any of
the laws and regulations of any jurisdiction, and (C) as the Company
may reasonably require to ensure the transfer or disposition of the
Registrable Shares is not in violation of the Act or any applicable
state securities laws;
(iii) To furnish to the Company, not later than every thirty (30)
days after the date of effectiveness of the applicable registration
statement, a report of the number of Registrable Shares sold during
such previous thirty-day (30) period;
(iv) To cancel any orders to sell and/or to reverse any sales of
Registrable Shares which, in the reasonable belief of the Company,
based upon the opinion of legal counsel experienced in securities law
matters, orders and/or sales were effected in violation of the Act or
any applicable state securities laws;
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(v) That, upon actual receipt of any notice from the Company (A)
of the happening of any event of the kind described in
Section 4(a)(iv); (B) regarding the suspension of the qualification or
exemption from qualification of a registration statement or any of the
Registrable Shares in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose; (C) of the happening
of any event, the existence of any condition or any information
becoming known (including, without limitation, pending corporate
developments, acquisitions, public filings or other material
non-public information) that requires the making of any changes in or
amendments or supplements to the registration statement so that it
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which
they were made, not misleading; or (D) of the determination by the
Company that a prospectus supplement or post-effective amendment to
the registration statement would be appropriate, THEN, and in each
such event, such Holder will forthwith discontinue disposition of such
Registrable Shares covered by such registration statement until such
Holder's receipt of the Company's written notice that the use of the
prospectus forming a part of the registration statement may be
resumed; and
(vi) That, without in any way limiting the Company's right to
suspend the effectiveness or usefulness of any registration statement
pursuant to Section 4(b)(v) above, the Company has no obligation to
keep any registration statement filed hereunder effective for any
period longer than seventy five (75) total days.
(c) The rights to cause the Company to register securities granted
to a Holder by the Company under either Section 1 or Section 2 may be
transferred or assigned by a Holder only to a transferee or assignee of not
less than 50,000 Registrable Shares (as presently constituted and subject to
subsequent adjustments for stock splits, stock dividends, reverse stock
splits, and the like), provided that the Company is given written notice at
the time of or within a reasonable time after said transfer or assignment,
stating the name and address of the transferee or assignee and identifying
the securities with respect to which such registration rights are being
transferred or assigned, and, provided further, that the transferee or
assignee of such rights assumes in writing the obligations of such Holder
under this Agreement.
5. [Intentionally Omitted]
6. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless each Holder and
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
against any losses, claims, damages or liabilities (or actions in respect
thereof), joint or several, to which such Holder or underwriter or such
controlling person may become subject, under the Act or otherwise, insofar as
such losses,
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claims, damages or liabilities (or actions in respect thereof) are caused by
any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which the Registrable Shares
were registered under the Act, any prospectus contained therein, or any
amendment or supplement 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, in light of the
circumstances under which they were made, not misleading; and will reimburse
the Holder, underwriter and each such controlling person for any legal or
other expenses reasonably incurred by such Holder, underwriter or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or actions in respect thereof; PROVIDED, HOWEVER, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage, liability or action in respect thereof arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with written information furnished by
such Holder or underwriter in writing for use in the preparation thereof.
(b) Each Holder will indemnify and hold harmless the Company, each
of its directors, each of its officers who have signed said registration
statement and each underwriter, and each person, if any, who controls (within
the meaning of the Act) the Company or any underwriter against any losses,
claims, damages or liabilities (or actions in respect thereof) to which the
Company, or any such director, officer, underwriter or controlling person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) are caused by any
untrue or alleged untrue statement of any material fact contained in said
registration statement, said prospectus, or amendment or amendments or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statement therein, in light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was so made or not made in reliance
upon and in conformity with written information furnished by the Holder for
use in the preparation thereof; and will reimburse any legal or other expense
reasonably incurred by the Company or any such director, officer, underwriter
or controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party pursuant hereto
of notice of any claims to which indemnity would apply or the commencement of
any action, such indemnified party will, if a claim thereof is to be made
against the indemnifying party pursuant hereto, notify the indemnifying party
of the commencement thereof; but the omission so to notify the indemnifying
party will not relieve the indemnifying party from any liability which it may
have to any indemnified party except to the extent the indemnifying party is
prejudiced from said failure to notify. In the event such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
in, and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party.
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(d) If the indemnification provided for in this Section 6 is held
by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred
to herein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such loss, liability, claim, damage,
or expense in such proportion as is appropriate to reflect the relative fault
of the indemnifying party on the one hand and the indemnified party on the
other in connection with the statements or omissions that resulted in such
loss, liability, claim, damage, or expense as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative
intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
(e) Notwithstanding the foregoing, and to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with any underwritten public offering
are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
7. TRANSFER WITHOUT REGISTRATION. The Common Stock shall not be
transferred, and the Company shall not be required to register any transfer
of any shares of the Common Stock on the books of the Company, unless the
Company shall have been provided with an opinion of counsel satisfactory to
it prior to such transfer that registration under the Act and applicable
state securities laws is not required in connection with the transaction
resulting in such transfer; PROVIDED, HOWEVER, that no such opinion of
counsel shall be required in order to effectuate a transfer pursuant to an
effective registration of the Registrable Shares. Each certificate issued
upon any transfer of the Common Stock transferred as above provided shall
bear an appropriate restrictive legend, except that such certificate shall
not bear such restrictive legend if the opinion of counsel referred to above
is to the further effect that such legend is not required in order to
establish compliance with the provisions of the Act or if such transfer is
made in accordance with the provisions of Rule 144 promulgated under the Act.
8. EXPIRATION. This Agreement and all registration rights granted to
the Holders hereunder will expire on the fifth anniversary of the date of
closing of am IPO of the Company unless terminated sooner or extended
pursuant to Section 9 hereof.
9. MODIFICATION AND TERMINATION. This Agreement shall not be modified
or extended, or terminated prior to the expiration hereof, except by a
written agreement signed by the parties hereto.
10. SURVIVAL. The indemnification provisions contained in Section 6 of
this Agreement will survive the expiration or earlier termination of this
Agreement for a period of time not to exceed the limitation period under
applicable statutes of limitation barring actions arising out of this
Agreement or the transactions contemplated hereby.
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11. COUNTERPARTS. This Agreement may be executed in multiple original
counterparts, each of which shall serve as an original for all purposes, but
all such counterparts together shall constitute one and the same Agreement.
[SIGNATURE PAGE FOLLOWS]
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EXECUTED as of the ______ day of _______________, 1998.
COMPANY:
XXXXX GOLF, INC.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
STOCKHOLDERS:
ROYAL HOLDING COMPANY, INC.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
------------------------------------
B. H. (BARNEY) XXXXX
------------------------------------
XXXXX XXXXXX
------------------------------------
XXXXXX X. XXXXXX
X-0
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XXXXXXX XXXXXX
LINCOLN TRUST COMPANY
By:
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Custodian FBO Xxxxxxx Xxxxxx
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XXXXX X. XXXXX
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XXXXX XXXXX
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XXXXX XXXXX
ADDITIONAL SELLING STOCKHOLDERS:
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(SIGNATURE)
Name:
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Address:
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S-2
ANNEX A
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STOCKHOLDERS
NAME SHARES OF COMMON STOCK (PRE-SPLIT)
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Royal Holding Company, Inc. 3,702,719
Xxxxxx Xxxxxx 919,300
X. X. Xxxxx 2,320,384
Xxxxx Xxxxxx 971,388
Xxxxx and Xxxxx Xxxxx 300,579
Xxxxx Xxxxx 125,000
Lincoln Trust Company, Custodian FBO
Xxxxxxx Xxxxxx 58,296
Xxxxxxx Xxxxxxxx 166,976
Xxxx X. Xxxxxxxxx 166,660
Xxxxx XxXxxxxx 55,869
Xxxx Xxxxx 44,413
Xxxxxxx X. Xxxxxx 40,000
Xxxxxxx X. & Xxxxxx X. Xxxxxxxxx 40,000
Xxxxxxxx X. & Xxxxxx X. Xxxxxxx 35,000
Xxxx Xxxxxxxx 29,553
Xxxxx Xxxxx 13,552
Xxx Xxxxxxxxx 12,152
Xxxx XxXxxxx 11,456
Xxx Xxxxxxxx 8,400
Xxx Xxxx 5,600
August F. and Xxxxxx Xxxxxxx 5,000
Xxxxx Xxxxxxxx 5,000
Xxxxx and Xxxxx Xxxxxx 5,000
Xxxxxxxx X. Xxxxxxx, cust. for Xxxxxxx X. Xxxxxxx 5,000
Xxxxxxxx X. Xxxxxxx, cust. for Xxxxxx X. Xxxxxxx 5,000
Xxxxxxxx X. Xxxxxxx, cust. for Xxxxxxx X. Xxxxxxx 5,000
Xxxxxxx X. Xxxxxxxxx, cust. for Xxxxxx Xxxxxxx Xxxxxxxxx 5,000
Xxxxxxx X. Xxxxxxxxx, cust. for Xxxxx X. Xxxxxxxxx 5,000
Royce and Xxxxxx Xxxxxx 5,000
Xxxxxxx and Xxxxx Xxxxxx 5,000
Xxxx Xxxxxxx 4,200
Xxx Xxxxx 3,472
Xxxx Xxxxxxxxx 3,472
Xxx Xxxxxxx 2,800
Xxxxxxx X. Xxxxxx, cust. for Xxxxxx Xxxx 2,500
Xxxxxxx X. Xxxxxx, cust. for Xxxxx Xxxx 2,500
Xxxxxxx Xxxxxx 1,400
Xxxxx and Xxxxx Xxxxxxx 1,000
Xxxxx Xxxxxxx as Trustee for Xxxx Xxxxxxx 500
Xxxxx Xxxxxxx as Trustee for Xxxxxxx Xxxxxxx 500
The parties hereto agree that the number of Secondary Shares to be
included by each of the Stockholders in the IPO shall be determined by
reference to the following:
(SxP) x (N divided by T), where:
S = the aggregate number of shares of Common Stock (including Company
shares and Secondary Shares) to be sold to the Underwriters in the
IPO;
P = the percentage of Secondary Shares included in the IPO, as determined
by the Underwriters and the Company in their reasonable discretion;
N = the number of shares of Common Stock requested to be included by such
Stockholder pursuant to that Waiver, Participation Notice and Consent
signed by the Stockholder; and
T = the total number of shares of Common Stock requested to be
included by all Stockholders.
