EXHIBIT 10.5
REGISTRATION RIGHTS AGREEMENT
by and between
THE HOCKEY COMPANY,
and
CAISSE DE DEPOT ET PLACEMENT DU QUEBEC
Dated as of March 14, 2001
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of
March 14, 2001, is by and between THE HOCKEY COMPANY, a corporation organized
and existing under the laws of the state of Delaware (the "COMPANY"), and CAISSE
DE DEPOT ET PLACEMENT DU QUEBEC, a legal person constituted under the laws of
Quebec ("CDP").
WHEREAS, pursuant to a Restated and Amended Credit Agreement dated as
of March 14, 2001, among others, the Company and CDP (as amended or modified in
accordance with the terms thereof, the "CREDIT AGREEMENT"), CDP has extended
credit to the Company on the terms and conditions set forth in the Credit
Agreement.
WHEREAS, pursuant to a Warrant Agreement dated as of March 14, 2001
between the Company and CDP (as amended or modified in accordance with the terms
thereof, the "WARRANT AGREEMENT"), the Company has agreed to issue certain
common share purchase warrants as provided in the Warrant Agreement (the
"WARRANTS"). The Warrants will permit CDP to purchase shares of common stock,
par value of $0.01 (the "COMMON SHARES"), of the Company.
WHEREAS, CDP may purchase or otherwise acquire other Common Shares or
Common Stock Equivalents (as defined below); and
WHEREAS, in connection with (i) the Company and CDP entering into the
Credit Agreement, and (ii) the Company and CDP entering into the Warrant
Agreement, the Company has agreed to provide the registration rights set forth
in this Agreement.
ACCORDINGLY, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings
ascribed to them below:
"AFFILIATE" means (i) with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person or (ii) with respect to any
individual, shall also mean the spouse or child of such individual; PROVIDED,
that neither the Company nor any Person controlled by the Company shall be
deemed to be an Affiliate of any Holder.
"CERTIFICATE OF INCORPORATION" means the certificate of incorporation
of the Company, as amended.
"COMMON SHARES" means the Common Shares, par value $.01 per share, of
the Company and any equity securities issued or issuable with respect to the
Common Shares in connection with a reclassification, recapitalization, merger,
consolidation or other reorganization.
"COMMON STOCK EQUIVALENTS" means any securities, including Warrants and
options, convertible into, or exercisable or exchangeable for, or other rights
(including, without limitation, pursuant to the Credit Agreement or the
Agreement, dated March 14, 2001, among the Company, WS Acquisition LLC and CDP,
as amended or modified in accordance with the terms thereof) to acquire, Common
Shares.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"HOLDER" or "HOLDERS" means any Person who is or becomes a signatory to
this Agreement who holds Registrable Securities.
"IPO" means the initial underwritten offering of Common Shares
registered under the Securities Act with aggregate gross proceeds of at least
$10 million.
"PERSON" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivisions thereof.
"REGISTRABLE SECURITIES" shall mean (i) Common Shares held by CDP or
its Affiliates; (ii) any Common Shares issued or issuable, upon the exercise of
the Warrants, exercise, exchange or conversion of any other Common Stock
Equivalents held by CDP or its Affiliates; or (iii) any shares issued or
issuable, directly or indirectly, upon any subdivision, combination or
reclassification of such shares or share dividend in respect to the Common
Shares referenced in clauses (i) and (ii) above; PROVIDED, HOWEVER, that with
respect to a registration statement pursuant to Section 2.1 or Section 2.2,
Registrable Securities shall include all Common Shares (including shares
obtainable upon the exercise, exchange or conversion of any Warrants or other
Common Stock Equivalents) held by CDP or its Affiliates. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
when (i) a registration statement with respect to the sale of such securities
shall have been declared effective under the applicable securities laws and such
securities shall have been disposed of in accordance with such registration
statement or (ii) such securities shall have been sold (other than in a
privately negotiated sale) pursuant to Rule 144 (or any successor provision)
under the Securities Act and in compliance with the requirements of Rule 144.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
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2. REGISTRATION RIGHTS.
2.1. DEMAND REGISTRATIONS.
(a) (i) Subject to Sections 2.1(b) and 2.3 below, at any time
and from time to time, CDP shall have the right to require the Company to file a
registration statement under the Securities Act covering all or any part of
their respective Registrable Securities, by delivering a written request
therefor to the Company specifying the number of Registrable Securities to be
included in such registration by such Holder(s) and the intended method of
distribution thereof. All such requests by any Holder pursuant to this Section
2.1(a)(i) are referred to herein as "DEMAND REGISTRATION REQUESTS," and the
registrations so requested are referred to herein as "DEMAND REGISTRATIONS"
(with respect to any Demand Registration, the Holder(s) making such demand for
registration being referred to as the "INITIATING HOLDER"). As promptly as
practicable, but no later than ten days after receipt of a Demand Registration
Request, the Company shall give written notice (the "DEMAND EXERCISE NOTICE") of
such Demand Registration Request to all Holders of record of Registrable
Securities.
(ii) The Company, subject to Sections 2.3 and 2.6, shall
include in a Demand Registration (x) the Registrable Securities of the
Initiating Holder and (y) the Registrable Securities of any other Holder who
shall have made a written request to the Company for inclusion in such
registration (which request shall specify the maximum number of Registrable
Securities intended to be disposed of by such Holder) within 15 days after the
receipt of the Demand Exercise Notice.
(iii) The Company shall, as expeditiously as possible, use
its best efforts to (x) effect such registration under the Securities Act
(including, without limitation, by means of a shelf registration pursuant to
Rule 415 under the Securities Act if so requested and if the Company is then
eligible to use such a registration) of the Registrable Securities which the
Company has been so requested to register, for distribution in accordance with
such intended method of distribution, and (y) if requested by the Initiating
Holder or the Holders of a majority of the Registrable Securities participating
in such registration, obtain acceleration of the effective date of the
registration statement relating to such registration.
(b) The Demand Registration rights granted in Section 2.1(a)
may only be exercised after the closing of an IPO and are also subject to the
following limitations: (i) CDP shall have the right to make a Demand
Registration Request only if CDP and its Affiliates have acquired at any time
beneficial ownership (as determined for purposes of Section 13(d) of the
Exchange Act) of at least 739,964 Common Shares (appropriately adjusted to
reflect any stock dividends, stock splits, combinations, recapitalizations,
reclassifications or any other similar transactions after the date of this
Agreement)(whether or not CDP and its Affiliates continue at any time thereafter
to have
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beneficial ownership of such number of Common Shares); PROVIDED, HOWEVER, that
CDP shall no longer have the right to make a Demand Registration Request if CDP
and its Affiliates have beneficial ownership (as determined for purposes of
Section 13(d) of the Exchange Act) of less than 179,991 Common Shares
(appropriately adjusted to reflect any stock dividends, stock splits,
combinations recapitalizations, reclassifications or other similar transactions
after the date of this Agreement); (ii) after the closing of an IPO, a Demand
Registration Request shall not be made by CDP during the time periods that a
Holder is prohibited under Section 2.7(a) from selling Common Shares; (iii) CDP
shall be entitled to require the Company to effect, and the Company shall be
required to effect, three registrations pursuant to this Section 2.1; (iv) the
Company shall not be required to cause a registration pursuant to Section
2.1(a)(i) to be declared effective within a period of 180 days after the
effective date of any registration statement of the Company effected in
connection with a Demand Registration Request; and (v) if the Board of Directors
of the Company, in its good faith judgment, determines that any registration of
Registrable Securities should not be made or continued because it would
materially interfere with any material financing, acquisition, corporate
reorganization or merger or other transaction involving the Company or any of
its subsidiaries (a "VALID BUSINESS REASON"), (x) the Company may postpone
filing a registration statement relating to a Demand Registration Request until
such Valid Business Reason no longer exists, but in no event for more than 120
days, and (y) in case a registration statement has been filed relating to a
Demand Registration Request, if the Valid Business Reason has not resulted from
actions taken by the Company, the Company may cause such registration statement
to be withdrawn and its effectiveness terminated or may postpone amending or
supplementing such registration statement until such Valid Business Reason no
longer exists, but in no event for more than 120 days (such period of
postponement or withdrawal under subclauses (x) or (y) of this clause (v), the
"POSTPONEMENT PERIOD"); and the Company shall give written notice of its
determination to postpone or withdraw a registration statement and of the fact
that the Valid Business Reason for such postponement or withdrawal no longer
exists, in each case, promptly after the occurrence thereof; PROVIDED, HOWEVER,
the Company shall not be permitted to postpone or withdraw a registration
statement after the expiration of any Postponement Period until six months after
the expiration of such Postponement Period without the prior written approval of
CDP.
A registration requested pursuant to this Section 2.1 shall
not be deemed to have been effected (including for purposes of Section
2.1(b)(iii)), (x) unless a registration statement with respect thereto has
become effective and has been kept continuously effective for a period of at
least 180 days (or such shorter period which shall terminate when all the
Registrable Securities covered by such registration statement have been sold
pursuant thereto), (y) if after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court for any reason not attributable to
the CDP and has not thereafter become effective, or (z) if the conditions to
closing specified in the
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underwriting agreement, if any, entered into in connection with such
registration are not satisfied (for any reason not attributable to CDP) or
waived.
If the Company shall give any notice of postponement or
withdrawal of any registration statement, the Company shall not, during the
period of postponement or withdrawal, register any Common Shares, other than
pursuant to a registration statement on Form S-4 or S-8 (or an equivalent
registration form then in effect) under the Securities Act. Each Holder of
Registrable Securities agrees that, upon receipt of any notice from the Company
that the Company has determined to withdraw any registration statement pursuant
to clause (v) above, such Holder will discontinue its disposition of Registrable
Securities pursuant to such registration statement and, if so directed by the
Company, will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in such Holder's possession of the
prospectus covering such Registrable Securities that was in effect at the time
of receipt of such notice. If the Company shall have withdrawn or prematurely
terminated a registration statement filed under Section 2.1(a)(i) (whether
pursuant to clause (v) above or as a result of any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or
court), the Company shall not be considered to have effected an effective
registration for the purposes of this Agreement until the Company shall have
filed a new registration statement covering the Registrable Securities covered
by the withdrawn registration statement and such registration statement shall
have been declared effective and shall not have been withdrawn. If the Company
shall give any notice of withdrawal or postponement of a registration statement,
the Company shall, at such time as the Valid Business Reason that caused such
withdrawal or postponement no longer exists (but in no event later than 90 days
after the date of the postponement or withdrawal), use its best efforts to
effect the registration under the Securities Act of the Registrable Securities
covered by the withdrawn or postponed registration statement in accordance with
this Section 2.1 (unless the Initiating Holder shall have withdrawn such
request, in which case the Company shall not be considered to have effected an
effective registration for the purposes of this Agreement).
(c) The Company, subject to Sections 2.3 and 2.6, may elect to
include in any registration statement and offering made pursuant to Section
2.1(a)(i), (i) authorized but unissued Common Shares or Common Shares held by
the Company as treasury shares and (ii) any other Common Shares which are
requested to be included in such registration pursuant to the exercise of
piggyback rights granted by the Company which are not inconsistent with the
rights granted in, or otherwise conflict with the terms of, this Agreement
("ADDITIONAL PIGGYBACK RIGHTS") PROVIDED, HOWEVER, that such inclusion shall be
permitted only to the extent that it is pursuant to and subject to the terms of
the underwriting agreement or arrangements, if any, entered into by the
Initiating Holder.
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(d) In connection with any Demand Registration, the Company
shall designate the managing underwriter for such offering, (i) if CDP or its
Affiliates is the Initiating Holder, CDP or such Affiliate, or (ii) if clause
(i) is inapplicable, the Holders of a majority of the Registrable Securities
participating in such registration, shall be consulted by the Company in making
such designation of the managing underwriter(s) for such offering.
2.2. PIGGYBACK REGISTRATIONS.
(a) If, at any time, the Company proposes or is required to
register any of its equity securities under the Securities Act (other than
pursuant to (i) registrations on such form or similar form(s) solely for
registration of securities in connection with an employee benefit plan or
dividend reinvestment plan or a merger or consolidation or (ii) a Demand
Registration under Section 2.1 of this Agreement) on a registration statement on
Form S-1, Form S-2 or Form S-3 (or an equivalent general registration form then
in effect), whether or not for its own account, the Company shall give prompt
written notice of its intention to do so to each of the Holders of record of
Registrable Securities. Upon the written request of any such Holder, made within
10 days following the receipt of any such written notice (which request shall
specify the maximum number of Registrable Securities intended to be disposed of
by such Holder and the intended method of distribution thereof), the Company
shall, subject to Sections 2.2(b), 2.3 and 2.6 hereof, use its best efforts to
cause all such Registrable Securities, the Holders of which have so requested
the registration thereof, to be registered under the Securities Act (with the
securities which the Company at the time proposes to register) to permit the
sale or other disposition by the Holders (in accordance with the intended method
of distribution thereof) of the Registrable Securities to be so registered.
There is no limitation on the number of such piggyback registrations pursuant to
the preceding sentence which the Company is obligated to effect. No registration
effected under this Section 2.2(a) shall relieve the Company of its obligations
to effect Demand Registrations.
(b) If, at any time after giving written notice of its
intention to register any equity securities and prior to the effective date of
the registration statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay registration
of such equity securities, the Company may, at its election, give written notice
of such determination to all Holders of record of Registrable Securities and (i)
in the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
abandoned registration, without prejudice, however, to the rights of Holders
under Section 2.1, and (ii) in the case of a determination to delay such
registration of its equity securities, shall be permitted to delay the
registration of such Registrable Securities for the same period as the delay in
registering such other equity securities.
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(c) Any Holder shall have the right to withdraw its request
for inclusion of its Registrable Securities in any registration statement
pursuant to this Section 2.2 by giving written notice to the Company of its
request to withdraw; PROVIDED, HOWEVER, that (i) such request must be made in
writing prior to the earlier of the execution of the underwriting agreement or
the execution of the custody agreement with respect to such registration and
(ii) such withdrawal shall be irrevocable and, after making such withdrawal, a
Holder shall no longer have any right to include Registrable Securities in the
registration as to which such withdrawal was made.
2.3. ALLOCATION OF SECURITIES INCLUDED IN REGISTRATION STATEMENT.
(a) If any requested registration pursuant to Section 2.1
involves an underwritten offering and the lead managing underwriter of such
offering (the "MANAGER") shall advise the Company that, in its view, the number
of securities requested to be included in such registration by the Holders or
any other persons (including those Common Shares requested by the Company to be
included in such registration) exceeds the largest number (the "SECTION 2.1 SALE
NUMBER") that can be sold in an orderly manner in such offering within a price
range acceptable to the Initiating Holder, the Company shall include in such
registration:
(i) all Registrable Securities requested to be
included in such registration by Holders of Registrable Securities; PROVIDED,
HOWEVER, that, if the number of such Registrable Securities exceeds the
Section 2.1 Sale Number, the number of such Registrable Securities (not to
exceed the Section 2.1 Sale Number) to be included in such registration shall
be allocated among the Holders in accordance with CDP's instructions;
(ii) to the extent that the number of Registrable
Securities to be included by all Holders pursuant to clause (i) of this
Section 2.3(a) is less than the Section 2.1 Sale Number, securities that the
Company proposes to register; and
(iii) to the extent that the number of Registrable
Securities to be included by all Holders and the number of securities to be
included by the Company is less than the Section 2.1 Sale Number, any other
securities that the holders thereof propose to register pursuant to the
exercise of Additional Piggyback Rights.
If, as a result of the proration provisions of this Section
2.3(a), any Holder shall not be entitled to include all Registrable Securities
in a registration that such Holder has requested be included, such Holder may
elect to withdraw his request to include Registrable Securities in such
registration or may reduce the number requested to be included; PROVIDED,
HOWEVER, that (x) such request must be made in writing prior to the earlier of
the execution of the underwriting agreement or the execution of the custody
agreement with respect to such registration and (y) such withdrawal shall be
irrevocable
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and, after making such withdrawal, a Holder shall no longer have any
right to include Registrable Securities in the registration as to which such
withdrawal was made.
(b) If any registration pursuant to Section 2.2 involves an
underwritten offering and the Manager shall advise the Company that, in its
view, the number of securities requested to be included in such registration
exceeds the number (the "SECTION 2.2 SALE NUMBER") that can be sold in an
orderly manner in such registration within a price range acceptable to the
Company, the Company shall include in such registration:
(i) all Common Shares or securities convertible into,
or exchangeable or exercisable for, Common Shares that the Company proposes to
register for its own account (the "COMPANY SECURITIES"); and
(ii) to the extent that the number of Company
Securities is less than the Section 2.2 Sale Number, the remaining shares to be
included in such registration shall be allocated among the Holders and the
holders of any other securities that the holders thereof propose to register
pursuant to the exercise of Additional Piggyback Rights in proportion to the
number of Common Shares proposed to be registered by such Holders and other
holders..
2.4. REGISTRATION PROCEDURES. If and whenever the Company is required by
the provisions of this Agreement to use its best efforts to effect or cause the
registration of any Registrable Securities under the Securities Act as
provided in this Agreement, the Company shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on
an appropriate registration form of the SEC for the disposition of such
Registrable Securities in accordance with the intended method of disposition
thereof, which form (i) shall be selected by the Company and (ii) shall, in the
case of a shelf registration, be available for the sale of the Registrable
Securities by the selling Holders thereof and such registration statement shall
comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith, and the Company shall use its best efforts to cause such
registration statement to become and remain effective; PROVIDED, HOWEVER, that
before filing a registration statement or prospectus or any amendments or
supplements thereto, or comparable statements under securities or blue sky laws
of any jurisdiction, the Company will furnish to one counsel for the Holders
participating in the planned offering (selected by the Initiating Holder, in the
case of a registration pursuant to Section 2.1, and selected by the Holders of a
majority of the Registrable Securities included in such registration, in the
case of a registration pursuant to Section 2.2) and the underwriters, if any,
copies of all such documents proposed to be filed (including all exhibits
thereto), which documents will be subject to the reasonable review and
reasonable comment of such counsel;
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(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
such period (which shall not be required to exceed 120 days) as any seller of
Registrable Securities pursuant to such registration statement shall request and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all Registrable Securities covered by such registration
statement in accordance with the intended methods of disposition by the seller
or sellers thereof set forth in such registration statement;
(c) furnish, without charge, to each seller of such
Registrable Securities and each underwriter, if any, of the securities covered
by such registration statement such number of copies of such registration
statement, each amendment and supplement thereto (in each case including all
exhibits), and the prospectus included in such registration statement (including
each preliminary prospectus) in conformity with the requirements of the
Securities Act, and other documents, as such seller and underwriter may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities owned by such seller (the Company hereby
consenting to the use in accordance with all applicable law of each such
registration statement (or amendment or post-effective amendment thereto) and
each such prospectus (or preliminary prospectus or supplement thereto) by each
such seller of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
such registration statement or prospectus);
(d) use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under such other
securities or "blue sky" laws of such jurisdictions as any sellers of
Registrable Securities or any managing underwriter, if any, shall reasonably
request, and do any and all other acts and things which may be reasonably
necessary or advisable to enable such sellers or underwriter, if any, to
consummate the disposition of the Registrable Securities in such jurisdictions,
except that in no event shall the Company be required to qualify to do business
as a foreign corporation in any jurisdiction where it would not, but for the
requirements of this paragraph (d), be required to be so qualified, to subject
itself to taxation in any such jurisdiction;
(e) promptly notify each Holder selling Registrable Securities
covered by such registration statement and each managing underwriter, if any:
(i) when the registration statement, any pre-effective amendment, the prospectus
or any prospectus supplement related thereto or post-effective amendment to the
registration statement has been filed and, with respect to the registration
statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the SEC or state securities authority for amendments or
supplements to the registration statement or the prospectus related thereto or
for additional information; (iii) of the issuance by the SEC of any stop
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order suspending the effectiveness of the registration statement or the
initiation of any proceedings for that purpose; (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of any Registrable Securities for sale under the securities or blue sky laws of
any jurisdiction or the initiation of any proceeding for such purpose; (v) of
the existence of any fact of which the Company becomes aware which results in
the registration statement, the prospectus related thereto or any document
incorporated therein by reference containing an untrue statement of a material
fact or omitting to state a material fact required to be stated therein or
necessary to make any statement therein not misleading; and (vi) if at any time
the representations and warranties contemplated by any underwriting agreement,
securities sale agreement, or other similar agreement, relating to the offering
shall cease to be true and correct in all material respects; and, if the
notification relates to an event described in clause (v), the Company shall
promptly prepare and furnish to each such seller and each underwriter, if any, a
reasonable number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include 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 in the light of the circumstances under which they were made
not misleading;
(f) comply with all applicable rules and regulations of the
SEC, and make generally available to its security holders, as soon as reasonably
practicable after the effective date of the registration statement (and in any
event within 15 months thereafter), an earning statement (which need not be
audited) covering the period of at least twelve consecutive months beginning
with the first day of the Company's first calendar quarter after the effective
date of the registration statement, which earning statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such
registration statement to be listed on the principal securities exchange on
which similar securities issued by the Company are then listed (if any), if the
listing of such Registrable Securities is then permitted under the rules of such
exchange, or (ii) if no similar securities are then so listed, to either cause
all such Registrable Securities to be listed on a national securities exchange
or to secure designation of all such Registrable Securities as a Nasdaq National
Market "national market system security" within the meaning of Rule 11Aa2-1 of
the Exchange Act;
(h) provide and cause to be maintained a transfer agent and
registrar for all such Registrable Securities covered by such registration
statement not later than the effective date of such registration statement;
(i) enter into such customary agreements (including, if
applicable, an underwriting agreement) and take such other actions as the
Holders of a majority of the Registrable Securities participating in such
offering shall reasonably request in order to
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expedite or facilitate the disposition of such Registrable Securities. The
Holders of the Registrable Securities which are to be distributed by such
underwriters shall be parties to such underwriting agreement and may, at their
option, require that the Company make to and for the benefit of such Holders the
representations, warranties and covenants of the Company which are being made to
and for the benefit of such underwriters and which are of the type customarily
provided to institutional investors in secondary offerings;
(j) use its best efforts to obtain an opinion from the
Company's counsel and a "cold comfort" letter from the Company's independent
public accountants in customary form and covering such matters as are
customarily covered by such opinions and "cold comfort" letters delivered to
underwriters in underwritten public offerings, which opinion and letter shall be
reasonably satisfactory to the underwriter, if any, and furnish to each Holder
participating in the offering and to each underwriter, if any, a copy of such
opinion and letter addressed to such Holder or underwriter;
(k) deliver promptly to each Holder participating in the
offering and each underwriter, if any, copies of all correspondence between the
SEC and the Company, its counsel or auditors and all memoranda relating to
discussions with the SEC or its staff with respect to the registration
statement, other than those portions of any such memoranda which contain
information subject to attorney-client privilege with respect to the Company,
and, upon receipt of such confidentiality agreements as the Company may
reasonably request, make reasonably available for inspection by any seller of
such Registrable Securities covered by such registration statement, by any
underwriter, if any, participating in any disposition to be effected pursuant to
such registration statement and by any attorney, accountant or other agent
retained by any such seller or any such underwriter, all pertinent financial and
other records, pertinent corporate documents and properties of the Company, and
cause all of the Company's officers, directors and employees to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(l) use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of the registration statement;
(m) provide a CUSIP number for all Registrable Securities,
not later than the effective date of the registration statement;
(n) make reasonably available its employees and personnel
and otherwise provide reasonable assistance to the underwriters (taking into
account the needs of the Company's businesses and the requirements of the
marketing process) in the marketing of Registrable Securities in any
underwritten offering;
(o) furnish to each Holder participating in the offering and
the managing underwriter, without charge, at least one signed copy of the
registration statement and any
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post-effective amendments thereto, including financial statements
and schedules, all documents incorporated therein by reference
and all exhibits (including those incorporated by reference);
(p) cooperate with the selling Holders of Registrable
Securities and the managing underwriter, if any, to facilitate the timely
preparation and delivery of certificates not bearing any restrictive legends
representing the Registrable Securities to be sold, and cause such
Registrable Securities to be issued in such denominations and registered in
such names in accordance with the underwriting agreement prior to any sale of
Registrable Securities to the underwriters or, if not an underwritten
offering, in accordance with the instructions of the selling Holders of
Registrable Securities at least three business days prior to any sale of
Registrable Securities and instruct any transfer agent and registrar of
Registrable Securities to release any stop transfer orders in respect thereof;
(q) take all such other commercially reasonable actions as
are necessary or advisable in order to expedite or facilitate the disposition
of such Registrable Securities; and
(r) take no direct or indirect action prohibited by
Regulation M under the Exchange Act; PROVIDED, HOWEVER, that to the extent
that any prohibition is applicable to the Company, the Company will take such
action as is necessary to make any such prohibition inapplicable.
The Company may require as a condition precedent to the
Company's obligations under this Section 2.4 that each seller of Registrable
Securities as to which any registration is being effected furnish the Company
such information regarding such seller and the distribution of such
securities as the Company may from time to time reasonably request provided
that such information is necessary for the Company to consummate such
registration and shall be used only in connection with such registration.
Each Holder of Registrable Securities agrees that upon receipt
of any notice from the Company of the happening of any event of the kind
described in clause (v) of paragraph (e) of this Section 2.4, such Holder
will discontinue such Holder's disposition of Registrable Securities pursuant
to the registration statement covering such Registrable Securities until such
Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by paragraph (e) of this Section 2.4 and, if so directed by the
Company, will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in such Holder's possession of the
prospectus covering such Registrable Securities that was in effect at the
time of receipt of such notice. In the event the Company shall give any such
notice, the applicable period mentioned in paragraph (b) of this Section 2.4
shall be extended by the number of days during such period from and including
the date of the giving of such notice to and including the date when each
seller
- 12 -
of any Registrable Securities covered by such registration statement shall
have received the copies of the supplemented or amended prospectus
contemplated by paragraph (e) of this Section 2.4.
If any such registration statement or comparable statement
under "blue sky" laws refers to any Holder by name or otherwise as the Holder
of any securities of the Company, then such Holder shall have the right to
require (i) the insertion therein of language, in form and substance
reasonably satisfactory to such Holder and the Company, to the effect that
the holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such
Holder will assist in meeting any future financial requirements of the
Company, or (ii) in the event that such reference to such Holder by name or
otherwise is not in the judgment of the Company, as advised by counsel,
required by the Securities Act or any similar federal statute or any state
"blue sky" or securities law then in force, the deletion of the reference to
such Holder.
2.5. REGISTRATION EXPENSES.
(a) "EXPENSES" shall mean any and all fees and expenses
incident to the Company's performance of or compliance with this Article 2,
including, without limitation: (i) SEC, stock exchange or NASD registration
and filing fees and all listing fees and fees with respect to the inclusion
of securities in Nasdaq National Market, (ii) fees and expenses of compliance
with state securities or "blue sky" laws and in connection with the
preparation of a "blue sky" survey, including without limitation, reasonable
fees and expenses of blue sky counsel, (iii) printing and copying expenses,
(iv) messenger and delivery expenses, (v) expenses incurred by the Company in
connection with any road show, (vi) fees and disbursements of counsel for the
Company, (vii) with respect to each registration, the fees and disbursements
of one counsel for the selling Holder(s) (selected by the Initiating Holder,
in the case of a registration pursuant to Section 2.1, and selected by the
Holders of a majority of the Registrable Securities included in such
registration, in the case of a registration pursuant to Section 2.2), (viii)
fees and disbursements of all independent public accountants (including the
expenses of any audit and/or "cold comfort" letter) and fees and expenses of
other persons, including special experts, retained by the Company, and (ix)
fees and expenses payable to a Qualified Independent Underwriter (as such
term is defined in Schedule E to the By-Laws of the NASD).
(b) The Company shall pay all Expenses with respect to any
Demand Registration.
(c) Notwithstanding the foregoing, (x) the provisions of this
Section 2.5 shall be deemed amended to the extent necessary to cause these
expense provisions to
- 13 -
comply with "blue sky" laws of each state in which the offering is made and
(y) in connection with any registration hereunder, each Holder of Registrable
Securities being registered shall pay all underwriting discounts and
commissions and any transfer taxes, if any, attributable to the sale of such
Registrable Securities, PRO RATA with respect to payments of discounts and
commissions in accordance with the number of shares sold in the offering by
such Holder, and (z) the Company shall, in the case of all registrations
under this Article 2, be responsible for all its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties).
2.6. CERTAIN LIMITATIONS ON REGISTRATION RIGHTS. In the case of any
registration under Section 2.1 pursuant to an underwritten offering, or in
the case of a registration under Section 2.2 if the Company has determined to
enter into an underwriting agreement in connection therewith, all securities
to be included in such registration shall be subject to an underwriting
agreement and no person may participate in such registration unless such
person agrees to sell such person's securities on the basis provided therein
and completes and executes all reasonable questionnaires, and other documents
(including custody agreements and powers of attorney) which must be executed
in connection therewith, and provides such other information to the Company
or the underwriter as may be necessary to register such Person's securities.
2.7. LIMITATIONS ON SALE OR DISTRIBUTION OF OTHER SECURITIES. (a)
Each Holder of Registrable Securities agrees that, (i) to the extent
requested in writing by a managing underwriter, if any, of an IPO or any
registration effected pursuant to Section 2.1, not to sell, transfer or
otherwise dispose of, including any sale pursuant to Rule 144 under the
Securities Act, any Common Shares, or any other equity security of the
Company or any security, including the Warrants, convertible into or
exchangeable or exercisable for any equity security of the Company (other
than as part of such underwritten public offering) during the time period
reasonably requested by the managing underwriter, not to exceed 180 days (and
the Company hereby also so agrees (except that the Company may effect any
sale or distribution of any such securities pursuant to a registration on
Form S-4 (if reasonably acceptable to such managing underwriter) or Form S-8,
or any successor or similar form which is then in effect or upon the
conversion, exchange or exercise of any then outstanding Common Stock
Equivalent) to use its reasonable best efforts to cause each holder of any
equity security or any security convertible into or exchangeable or
exercisable for any equity security of the Company purchased from the Company
at any time other than in a public offering so to agree), and (ii) to the
extent requested in writing by a managing underwriter of any underwritten
public offering effected by the Company for its own account (other than the
IPO) it will not sell any Common Shares (other than as part of such
underwritten public offering) during the time period reasonably requested by
the managing underwriter, which period shall not exceed 90 days.
- 14 -
(b) The Company hereby agrees that, if it shall previously
have received a request for registration pursuant to Section 2.1 or 2.2, and
if such previous registration shall not have been withdrawn or abandoned, the
Company shall not sell, transfer, or otherwise dispose of, any Common Stock,
or any other equity security of the Company or any security convertible into
or exchangeable or exercisable for any equity security of the Company (other
than as part of such underwritten public offering, a registration on Form S-4
or Form S-8 or any successor or similar form which is then in effect or upon
the conversion, exchange or exercise of any then outstanding Common Stock
Equivalent), until a period of 180 days in connection with an IPO (or
otherwise, 90 days) shall have elapsed from the effective date of such
previous registration; and the Company shall so provide in any registration
rights agreements hereafter entered into with respect to any of its
securities.
2.8. NO REQUIRED SALE. Nothing in this Agreement shall be deemed to
create an independent obligation on the part of any Holder to sell any
Registrable Securities pursuant to any effective registration statement.
2.9. INDEMNIFICATION. (a) In the event of any registration of any
securities of the Company under the Securities Act pursuant to this Article
2, the Company will, and hereby does, indemnify and hold harmless, to the
fullest extent permitted by law, each Holder of Registrable Securities, its
directors, officers, fiduciaries, employees and stockholders or general and
limited partners (and the directors, officers, employees and stockholders
thereof), each other Person who participates as an underwriter or a Qualified
Independent Underwriter, if any, in the offering or sale of such securities,
each officer, director, employee, stockholder, fiduciary, managing director,
agent, affiliates, consultants, representatives, successors, assigns or
partner of such underwriter or Qualified Independent Underwriter, and each
other Person, if any, who controls such seller or any such underwriter within
the meaning of the Securities Act, against any and all losses, claims,
damages or liabilities, joint or several, actions or proceedings (whether
commenced or threatened) and expenses (including reasonable fees of counsel
and any amounts paid in any settlement effected with the Company's consent,
which consent shall not be unreasonably withheld or delayed) to which each
such indemnified party may become subject under the Securities Act or
otherwise in respect thereof (collectively, "Claims"), insofar as such Claims
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any registration statement under
which such securities were registered under the Securities Act or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
(ii) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary, final or summary prospectus or any amendment or
supplement thereto, together with the documents incorporated by reference
therein, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the
- 15 -
light of the circumstances under which they were made, not misleading, or
(iii) any violation by the Company of any federal, state or common law rule
or regulation applicable to the Company and relating to action required of or
inaction by the Company in connection with any such registration, and the
Company will reimburse any such indemnified party for any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such Claim as such expenses are incurred;
PROVIDED, HOWEVER, that the Company shall not be liable to any such
indemnified party in any such case to the extent such Claim arises out of or
is based upon any untrue statement or alleged untrue statement of a material
fact or omission or alleged omission of a material fact made in such
registration statement or amendment thereof or supplement thereto or in any
such prospectus or any preliminary, final or summary prospectus in reliance
upon and in conformity with written information furnished to the Company by
or on behalf of such indemnified party specifically for use therein. Such
indemnity and reimbursement of expenses shall remain in full force and effect
regardless of any investigation made by or on behalf of such indemnified
party and shall survive the transfer of such securities by such seller.
(b) Each Holder of Registrable Securities that are included in
the securities as to which any registration under Section 2.1 or 2.2 is being
effected (and, if the Company requires as a condition to including any
Registrable Securities in any registration statement filed in accordance with
Section 2.1 or 2.2, any underwriter and Qualified Independent Underwriter, if
any) shall, severally and not jointly, indemnify and hold harmless (in the
same manner and to the same extent as set forth in paragraph (a) of this
Section 2.9) to the extent permitted by law the Company, its officers and
directors, each Person controlling the Company within the meaning of the
Securities Act and all other prospective sellers and their respective
directors, officers, fiduciaries, managing directors, employees, agents,
affiliates, consultants, representatives, successors, assigns, general and
limited partners, stockholders and respective controlling Persons with
respect to any untrue statement or alleged untrue statement of any material
fact in, or omission or alleged omission of any material fact from, such
registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto, if such statement
or alleged statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company or
its representatives by or on behalf of such Holder or underwriter or
Qualified Independent Underwriter, if any, specifically for use therein and
reimburse such indemnified party for any legal or other expenses reasonably
incurred in connection with investigating or defending any such Claim as such
expenses are incurred; PROVIDED, HOWEVER, that the aggregate amount which any
such Holder shall be required to pay pursuant to this Section 2.9(b) and
Sections 2.9(c) and (e) shall in no case be greater than the amount of the
net proceeds received by such Person upon the sale of the Registrable
Securities pursuant to the registration statement giving rise to such claim.
Such indemnity and reimbursement of expenses shall remain in full force and
effect regardless of any investigation made by
- 16 -
or on behalf of such indemnified party and shall survive the transfer of such
securities by such Holder.
(c) Indemnification similar to that specified in the preceding
paragraphs (a) and (b) of this Section 2.9 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration or other qualification of securities under
any state securities and "blue sky" laws.
(d) Any Person entitled to indemnification under this
Agreement shall notify promptly the indemnifying party in writing of the
commencement of any action or proceeding with respect to which a claim for
indemnification may be made pursuant to this Section 2.9, but the failure of
any indemnified party to provide such notice shall not relieve the
indemnifying party of its obligations under the preceding paragraphs of this
Section 2.9, except to the extent the indemnifying party is materially
prejudiced thereby and shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than under
this Article 2. In case any action or proceeding is brought against an
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, unless in the reasonable opinion of outside counsel to the
indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the
defense thereof jointly with any other indemnifying party similarly notified,
to the extent that it chooses, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party that it so chooses, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation; PROVIDED, HOWEVER, that (i) if
the indemnifying party fails to take reasonable steps necessary to defend
diligently the action or proceeding within 20 days after receiving notice
from such indemnified party that the indemnified party believes it has failed
to do so; or (ii) if such indemnified party who is a defendant in any action
or proceeding which is also brought against the indemnifying party reasonably
shall have concluded that there may be one or more legal defenses available
to such indemnified party which are not available to the indemnifying party;
or (iii) if representation of both parties by the same counsel is otherwise
inappropriate under applicable standards of professional conduct, then, in
any such case, the indemnified party shall have the right to assume or
continue its own defense as set forth above (but with no more than one firm
of counsel for all indemnified parties in each jurisdiction, except to the
extent any indemnified party or parties reasonably shall have concluded that
there may be legal defenses available to such party or parties which are not
available to the other indemnified parties or to the extent representation of
all indemnified parties by the same counsel is otherwise inappropriate under
applicable standards of professional conduct) and the indemnifying party
shall be
- 17 -
liable for any expenses therefor. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (A) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim and
(B) does not include a statement as to or an admission of fault, culpability
or a failure to act, by or on behalf of any indemnified party.
(e) If for any reason the foregoing indemnity is unavailable
or is insufficient to hold harmless an indemnified party under Sections
2.9(a), (b) or (c), then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of any Claim 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
hand, with respect to such offering of securities. The relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying party or the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. If, however, the allocation provided in the
second preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative faults but also the relative benefits of the indemnifying party
and the indemnified party as well as any other relevant equitable
considerations. The parties hereto agree that it would not be just and
equitable if contributions pursuant to this Section 2.9(e) were to be
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
preceding sentences of this Section 2.9(e). The amount paid or payable in
respect of any Claim shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such Claim. 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. Notwithstanding anything in this Section 2.9(e)
to the contrary, no indemnifying party (other than the Company) shall be
required pursuant to this Section 2.9(e) to contribute any amount in excess
of the net proceeds received by such indemnifying party from the sale of
Registrable Securities in the offering to which the losses, claims, damages
or liabilities of the indemnified parties relate, less the amount of any
indemnification payment made by such indemnifying party pursuant to Sections
2.9(b) and (c).
- 18 -
(f) The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made
or omitted by or on behalf of any indemnified party and shall survive the
transfer of securities by any such party.
(g) The indemnification and contribution required by this
Section 2.9 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
3. UNDERWRITTEN OFFERINGS.
3.1. REQUESTED UNDERWRITTEN OFFERINGS. If requested by the
underwriters for any underwritten offering by the Holders pursuant to a
registration requested under Section 2.1, the Company shall enter into a
customary underwriting agreement with the underwriters. Such underwriting
agreement shall be satisfactory in form and substance to the Initiating
Holder and shall contain such representations and warranties by, and such
other agreements on the part of, the Company and such other terms as are
generally prevailing in agreements of that type, including, without
limitation, indemnities and contribution agreements on substantially the same
terms as those contained herein. Any Holder participating in the offering
shall be a party to such underwriting agreement and may, at its option,
require that any or all of the representations and warranties by, and the
other agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such Holder and
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the
obligations of such Holder; PROVIDED, HOWEVER, that the Company shall not be
required to make any representations or warranties with respect to written
information specifically provided by a selling Holder for inclusion in the
registration statement. Such underwriting agreement shall also contain such
representations and warranties by the participating Holders with respect to
title and ownership of shares as are customary in agreements of that type.
3.2. PIGGYBACK UNDERWRITTEN OFFERINGS. In the case of a registration
pursuant to Section 2.2 hereof, if the Company shall have determined to enter
into an underwriting agreement in connection therewith, all of the Holders'
Registrable Securities to be included in such registration shall be subject to
such underwriting agreement. Any Holder participating in such registration may,
at its option, require that any or all of the representations and warranties by,
and the other agreements on the part of, the Company to and for the benefit of
such underwriters shall also be made to and for the benefit of such Holder and
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the
obligations of such Holder. Such underwriting agreement shall also contain such
- 19 -
representations and warranties by the participating Holders as are customary
in agreements of that type, on substantially the same terms as those
contained herein.
4. GENERAL.
4.1. ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company agrees
that it shall not effect or permit to occur any combination or subdivision of
shares which would materially adversely affect the ability of the Holder of any
Registrable Securities to include such Registrable Securities in any
registration contemplated by this Agreement or the marketability of such
Registrable Securities in any such registration.
4.2. RULE 144. If the Company shall have filed a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a registration
statement pursuant to the requirements of the Securities Act in respect of the
Common Shares or securities of the Company convertible into or exchangeable or
exercisable for Common Shares, the Company covenants that (i) so long as it
remains subject to the reporting provisions of the Exchange Act, it will timely
file the reports required to be filed by it under the Securities Act or the
Exchange Act (including, but not limited to, the reports under Sections 13 and
15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 under
the Securities Act), and (ii) will take such further action as any Holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (A) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (B) any similar rule or regulation hereafter adopted by
the SEC. Upon the request of any Holder of Registrable Securities, the Company
will deliver to such Holder a written statement as to whether it has complied
with such requirements.
4.3. NOMINEES FOR BENEFICIAL OWNERS. If Registrable Securities are held
by a nominee for the beneficial owner thereof, the beneficial owner thereof may,
at its option, be treated as the Holder of such Registrable Securities for
purposes of any request or other action by any Holder or Holders of Registrable
Securities pursuant to this Agreement (or any determination of any number or
percentage of shares constituting Registrable Securities held by any Holder or
Holders of Registrable Securities contemplated by this Agreement), provided that
the Company shall have received assurances reasonably satisfactory to it of such
beneficial ownership.
4.4 AMENDMENTS AND WAIVERS. The terms and provisions of this
Agreement may be modified or amended, or any of the provisions hereof waived,
temporarily or permanently, pursuant to the prior written consent of the
Company and CDP.
4.5. NOTICES. Except as otherwise provided in this Agreement, all
notices, requests, consents and other communications hereunder to any party
shall be deemed to
- 20 -
be sufficient if contained in a written instrument delivered in person or by
telecopy (with a confirmatory copy sent by a different means within three
business days of such notice), nationally recognized overnight courier or first
class registered or certified mail, return receipt requested, postage prepaid,
addressed to such party at the address set forth below or such other address as
may hereafter be designated in writing by such party to the other parties:
(i) if to the Company, to:
The Hockey Company
0000 xx Xxxxxxxxxx Xxxx. Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxx
X0X 0X0
Telecopy: 000-000-0000
Attention: Xxxxxx Xxxxxx
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: 000-000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
(ii) if to CDP or its Affiliates, to:
Caisse de Depot et Placement du Quebec
c/o Capital d'Amerique
0000 XxXxxx Xxxxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
Telecopy: 000-000-0000
Attention: Xxxxx Xxxxxxx
with copies to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
-21-
Each Holder, by written notice given to the Company in accordance with this
Section 4.5, may change the address to which such notice or other communications
are to be sent to such Holder. All such notices, requests, consents and other
communications shall be deemed to have been given when received.
4.6. PRIOR AGREEMENTS. Each of the Holders and the Company hereby
agrees that any agreement previously entered into by it pursuant to which the
Company granted to it any registration rights shall be superseded by this
Agreement and each such agreement (and any rights such Holder has pursuant to
such agreement) shall be terminated, null and void and no longer in effect.
4.7. NO INCONSISTENT AGREEMENTS. The Company represents and warrants to
the other parties hereto that the rights granted to the holders of Registrable
Securities hereunder do not in any way conflict with and are not inconsistent
with any other agreements to which the Company is a party or by which it is
bound. Without the prior written consent of CDP, neither the Company nor any
Holder will, on or after the date of this Agreement, enter into any agreement
with respect to its securities which is inconsistent with the rights granted in
this Agreement or otherwise conflicts with the provisions hereof, other than any
lock-up agreement with the underwriters in connection with any registered
offering effected hereunder, pursuant to which the Company shall agree not to
register for sale, and the Company shall agree not to sell or otherwise dispose
of, Common Shares or any securities convertible into or exercisable or
exchangeable for Common Shares, for a specified period following the registered
offering. The Company further agrees that if any other registration rights
agreement entered into after the date of this Agreement with respect to any of
its securities contains terms which are more favorable to, or less restrictive
on, the other party thereto than the terms and conditions contained in this
Agreement are (insofar as they are applicable) to CDP, then the terms and
conditions of this Agreement shall immediately be deemed to have been amended
without further action by the Company or any of the holders of Registrable
Securities so that CDP shall be entitled to the benefit of any such more
favorable or less restrictive terms or conditions.
4.8. MISCELLANEOUS.
(a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and the respective
successors, personal representatives and assigns of the parties hereto, whether
so expressed or not. If any Person shall acquire Registrable Securities from any
Holder, in any manner, whether by operation of law or otherwise, such transferee
shall promptly notify the Company and such Registrable Securities acquired from
such Holder shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities such Person shall be entitled to
receive the benefits of and be conclusively deemed to have agreed to be bound by
and to perform all of the terms and provisions of this Agreement.
-22-
If the Company shall so request, any such successor or assign shall agree in
writing to acquire and hold the Registrable Securities acquired from such Holder
subject to all of the terms hereof. If any Holder shall acquire additional
Registrable Securities, such Registrable Securities shall be subject to all of
the terms, and entitled to all the benefits, of this Agreement.
(b) This Agreement (with the documents referred to herein or
delivered pursuant hereto) embodies the entire agreement and understanding
between the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof.
(c) (i) This Agreement shall be construed and enforced in
accordance with and governed by the internal laws of the State of New York
without giving effect to the conflicts of law principles thereof (other than
NYGOL Sections 5-1401 and 5-1402).
(ii) (x)The Company hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any Federal or State court located in the Borough of
Manhattan, the City of New York, in any action or proceeding arising out of
or relating to this Agreement or any other related document to which it is a
party, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in
such courts. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(y)Nothing in this Agreement shall affect any right that CDP may otherwise
have to bring any action or proceeding relating to this Agreement against the
Company or its properties in the courts of any other jurisdiction.
(iii) The Company irrevocably consents to the service
of any and all process in any suit, action or proceeding referred to in
Section 4.8(c)(ii)(x) by mailing of copies of such process to it at its
address as provided in Section 4.5. All mailings under this Section shall be
by certified mail, return receipt requested. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other
manner permitted by law.
(iv) The Company hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in Section 4.8(c)(ii)(x). Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any court referred to in Section 4.8(c)(ii)(x).
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(d) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
section references are to this Agreement unless otherwise expressly provided.
(e) This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
(f) Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
(g) The parties hereto acknowledge that there would be no
adequate remedy at law if any party fails to perform any of its obligations
hereunder, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to
injunctive relief, including specific performance, to enforce such obligations
without the posting of any bond, and, if any action should be brought in equity
to enforce any of the provisions of this Agreement, none of the parties hereto
shall raise the defense that there is an adequate remedy at law.
(h) Each party hereto shall do and perform or cause to be done
and performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments, and documents as any other
party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
agreement as of the date first above written.
COMPANY:
THE HOCKEY COMPANY
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Chief Operating Officer
CDP:
CAISSE DE DEPOT ET PLACEMENT DU QUEBEC
By: /s/ Xxxxx XxXxxxxx
--------------------------------
Name:
Title:
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name:
Title:
