REGISTRATION AGREEMENT
EXHIBIT
4.20
Execution
Version
REGISTRATION AGREEMENT (this “Agreement”), dated as of July 20, 2009, by and among Xxxxx &
Wesson Holding Corporation, a Nevada corporation (the “Company”), and the undersigned holders of
Common Stock (each, a “Holder”, and collectively, the “Holders”).
WHEREAS, each Holder was a stockholder of Universal Safety Response, Inc., a New York
corporation (“USR”).
WHEREAS, as contemplated by an Agreement and Plan of Merger dated as of June 18, 2009 among
the Company, USR, and others (the “Merger Agreement”), USR became a wholly owned subsidiary of the
Company and stockholders of USR received shares of Common Stock (as defined herein) as partial
consideration for the transactions contemplated by the Merger Agreement.
WHEREAS, the Merger Agreement requires the entering into of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and each of the Holders hereby agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined herein shall have the respective
meanings set forth in the Merger Agreement. As used in this Agreement, the following terms shall
have the following meanings:
“1933 Act” means the Securities Act of 1933, as amended, and the rules and regulations of the
SEC promulgated thereunder.
“1934 Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by,” and “under common control with”), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person whether through the ownership of voting
securities or by agreement or otherwise.
“Business Day” means any day other than Saturday, Sunday, or any other day on which commercial
banks in Delaware are authorized or required by law to remain closed.
“Common Stock” means the common stock, par value $0.001 per share, of the Company issued to
the Holders pursuant to the Merger Agreement, as it exists on the date of this Agreement and any
other shares of capital stock or other securities of the Company into which such Common Stock may
be reclassified or changed, together with any and all other shares of
Common Stock that at any time may be issued pursuant to the Merger Agreement (including any
shares that may continue to have vesting or other restrictions following consummation of the
transactions contemplated by the Merger Agreement).
“Company” has the meaning set forth in the preamble of this Agreement.
“Covered Securities” means the Common Stock and any security issued with respect thereto upon
any stock dividend, split, or similar event until the earliest of the date on which such Common
Stock, or any security issued with respect thereto upon any stock dividend, split, or similar
event, as the case may be (i) has been transferred pursuant to a Shelf Registration Statement or
another registration statement covering such Common Stock that has been filed with the SEC pursuant
to the 1933 Act, in either case after such registration statement has become effective and while
such registration statement is effective under the 1933 Act; (ii) has been transferred pursuant to
Rule 144; (iii) may be sold or transferred pursuant to Rule 144 without volume or timing
restrictions or limitations; or (iv) ceases to be outstanding.
“Effective Date” means the date the Shelf Registration Statement has been declared effective
by the SEC.
“Filing Deadline” means 10 calendar days after date of this Agreement and 10 days after any
subsequent issue of Common Stock pursuant to the Merger Agreement.
“FINRA” means the Financial Industry Regulatory Authority.
“Holders” has the meaning set forth in the preamble of this Agreement.
“Holder Information” with respect to any Holder means information with respect to such Holder
required to be included in any Shelf Registration Statement or the related Prospectus pursuant to
the 1933 Act and which information is included therein in reliance upon and in conformity with
information furnished to the Company in writing by such Holder specifically for inclusion therein.
“Majority Holders” means the Holders of a majority of the then outstanding Common Stock being
registered under a Shelf Registration Statement; provided that shares of Common Stock that have
been sold or otherwise transferred pursuant to the Shelf Registration Statement shall not be
included in the calculation of Majority Holders.
“Merger Agreement” has the meaning set forth in the recitals to this Agreement.
“Notice and Questionnaire” means a Selling Securityholder Notice and Questionnaire
substantially in the form of Exhibit A attached hereto.
“Notice Holder” means any Holder of Covered Securities that has delivered a properly completed
and signed Notice and Questionnaire to the Company in accordance with Section 2(b) hereof.
“Person” means any natural person, corporation, limited liability company, unincorporated
association, partnership, association, joint stock company, or trust.
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“Prospectus” means the prospectus included in any Shelf Registration Statement (including,
without limitation, a prospectus that discloses information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A, 430B, or 430C
under the 1933 Act), as amended or supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Covered Securities covered by such Shelf Registration
Statement, and all amendments and supplements to such prospectus, including all documents
incorporated or deemed to be incorporated by reference in such prospectus.
“Questionnaire Deadline” has the meaning set forth in Section 2(b) hereof.
“Record Holder” means each Person who is registered on the books of the registrar of the
Company’s Common Stock as the holder of Common Stock.
“Rule 144” means Rule 144 under the 1933 Act (or any successor provision promulgated by the
SEC).
“Rule 415” means Rule 415 under the 1933 Act (or any successor provision promulgated by the
SEC).
“SEC” means the Securities and Exchange Commission.
“Shelf Registration” means a registration effected pursuant to Section 2 hereof.
“Shelf Registration Period” has the meaning set forth in Section 2(c) hereof.
“Shelf Registration Statement” means any “shelf” registration statement of the Company filed
pursuant to the provisions of Section 2(a) hereof that covers the Covered Securities on
Form S-3 or on another appropriate form (as determined by the Company) for an offering to be made
on a delayed or continuous basis pursuant to Rule 415 and all amendments and supplements to such
registration statement, including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto, and all documents incorporated or deemed to be
incorporated by reference therein.
“Suspension Period” has the meaning set forth in Section 2(d) hereof.
All references in this Agreement to financial statements and schedules and other information
that is “contained,” “included,” or “stated” in the Shelf Registration Statement, any preliminary
Prospectus, or Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information incorporated or deemed to
be incorporated by reference in such Shelf Registration Statement, preliminary Prospectus, or
Prospectus, as the case may be; and all references in this Agreement to amendments or supplements
to the Shelf Registration Statement, any preliminary Prospectus, or Prospectus shall be deemed to
mean and include any document filed with the SEC under the 1934 Act, after the date of such Shelf
Registration Statement, preliminary Prospectus, or Prospectus, as the case may be, which is
incorporated or deemed to be incorporated by reference therein.
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(a) Filing of Registration Statement. The Company shall, at its expense, prepare and, as soon as practicable but in no event
later than the Filing Deadline, file with the SEC one or more Shelf Registration Statements
(collectively the “Shelf Registration Statement”) with respect to resales of the Covered Securities
by the Holders from time to time on a delayed or continuous basis pursuant to Rule 415 and in
accordance with the methods of distribution set forth in such Shelf Registration Statement and
thereafter shall use its commercially reasonable efforts to cause such Shelf Registration Statement
to be declared effective under the 1933 Act as soon as possible. The Company shall supplement or
amend the Shelf Registration Statement if required by the rules, regulations, or instructions
applicable to the registration form used by the Company for the Shelf Registration Statement, or by
the 1933 Act, the 1934 Act, or the SEC. Promptly following the Effective Date, the Company
promptly shall file with the SEC in accordance with Rule 424 under the 1933 Act the final
Prospectus to be used in connection with sales pursuant to such Shelf Registration Statement.
(i) Holders to be Named in Shelf Registration Statement. The Company shall name each Holder that delivers a properly completed and signed Notice and
Questionnaire to the Company as a selling security holder in the Shelf Registration Statement. A
Holder of Covered Securities may include such securities in the Shelf Registration Statement only
if the Holder sends by first-class registered mail or by courier or recognized delivery company
with delivery confirmation, a properly completed Notice and Questionnaire to the Company. In order
to be included in the Shelf Registration Statement at the time of its effectiveness, the Notice and
Questionnaire must be sent on or prior to the 15th Business Day after the date the Notice and
Questionnaire is deemed to have been given in accordance with Section 7(c) hereof
(“Questionnaire Deadline”).
(ii) Amendments to Shelf Registration Statement. Following the effectiveness of the Shelf Registration Statement, upon receipt of a
completed Notice and Questionnaire from a Holder, the Company shall, as promptly as practicable,
but in any event within 10 Business Days after its receipt thereof, file any amendments to the
Shelf Registration Statement or supplements to the related Prospectus as are necessary to permit
the Holder to deliver the Prospectus to purchasers of Covered Securities (subject to the right of
the Company to suspend the use of the Prospectus as described in Section 2(d) hereof);
provided, however, that (A) if a supplement to the related Prospectus is required to permit the
Holder (or other Holders not included in the Shelf Registration Statement upon effectiveness) to
deliver the Prospectus to purchasers of Covered Securities, the Company shall not be required to
file more than one such supplement during any 30-day period and (B) if a post-effective amendment
to the Shelf Registration Statement is required to permit the Holder (or other Holders not included
in the Shelf Registration Statement upon effectiveness) to deliver the
Prospectus to purchasers of Covered Securities, the Company shall have 30 Business Days to
file such post-effective amendment and shall not be required to file more than one post-effective
amendment to the Shelf Registration Statement in any 90-day period. The Company shall use its
commercially reasonable efforts to cause any such post-effective amendment to become effective
under the 1933 Act as promptly as is practicable; provided, that if a Notice and Questionnaire is
delivered
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to the Company during a Suspension Period, the Company shall not be obligated to amend
the Shelf Registration Statement or supplement the Prospectus until the termination of such
Suspension Period.
(iii) Holder Information. Each Holder as to which the Shelf Registration Statement is being effected shall furnish
promptly to the Company upon the written request of the Company, which request shall only be made
within three days of the proposed effectiveness of the Shelf Registration Statement or an amendment
thereto, (A) such other information as the Company may reasonably request for use in connection
with the Shelf Registration Statement or Prospectus or in any application to be filed with or under
state securities laws and (B) all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not misleading.
(c) Period of Effectiveness. The Company shall use its commercially reasonable efforts to keep the applicable Shelf
Registration Statement continuously effective, supplemented, and amended under the 1933 Act in
order to permit the Prospectus forming a part thereof to be usable by the Notice Holders until the
earliest to occur of (i) the one year anniversary of the date of the issuance of the Covered
Securities; (ii) the date as of which, in the opinion of counsel to the Company, the Covered
Securities may be sold under Rule 144 without volume or timing restrictions or limitations; (iii)
the date as of which all applicable Covered Securities have been transferred under Rule 144; and
(iv) such date as of which all Covered Securities have been sold pursuant to the applicable Shelf
Registration Statement (in any such case, such period being called the “Shelf Registration
Period”). The Company shall, in order to fulfill its obligations under this Section 2(c):
(A) subject to Section 2(d), prepare and file with the SEC such amendments and
post-effective amendments to the Shelf Registration Statement as may be necessary to keep the Shelf
Registration Statement continuously effective for the Shelf Registration Period; (B) subject to
Section 2(d), cause the related Prospectus to be supplemented by any required supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force)
under the 1933 Act; and (C) comply in all material respects with the provisions of the 1933 Act
with respect to the disposition of all Covered Securities covered by the Shelf Registration
Statement during the Shelf Registration Period.
(d) Suspension of Registration Statement. The Company may suspend the availability of any Shelf Registration Statement and the use of
any Prospectus (the period during which the availability of any Shelf Registration Statement and
any Prospectus may be suspended herein referred to as the “Suspension Period”) for a period not to
exceed 90 days in the aggregate during any 12-month period, in each case for
valid business reasons determined in good faith by the Company in its reasonable judgment,
after consultation with and upon the advice of outside legal counsel (which shall not include the
avoidance of the Company’s obligations hereunder), including, without limitation, the acquisition
or divestiture of assets, pending corporate developments, public filings with the SEC, and similar
events. Notwithstanding any other provision of this Agreement, the Company shall not voluntarily
take any actions not required by applicable laws or regulations that would require it to suspend
the availability of the Shelf Registration Statement or the use of any Prospectus and shall not
suspend the Registration Statement unless required by applicable law or regulation, in either case
during the first 90 days after the effectiveness of the Shelf Registration Statement
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(e) Underwriters. The Company shall have the right to select the underwriter or underwriters, if any, subject
to the approval of the Holders, which approval shall not be unreasonably withheld or delayed (with
Deutsche Bank Securities and Xxxxx and Company being hereby approved) that will undertake the sale
and distribution from time to time of the Covered Securities covered by the Shelf Registration
Statement.
3. Registration Procedures. In connection with any Shelf Registration Statement, the following provisions shall apply:
(a) Copies to Holders: The Company shall (i) furnish to the Holders and the underwriters, if any, within a
reasonable period of time, but in any event within five Business Days, prior to the filing thereof
with the SEC to afford the Holders and their counsel a reasonable opportunity for review, a copy of
each Shelf Registration Statement, and each amendment thereof, and a copy of each Prospectus, and
each amendment or supplement thereto (excluding amendments caused by the filing of a report under
the 1934 Act), and shall reflect in each such document, when so filed with the SEC, such comments
as the Holders may reasonably propose therein; and (ii) include information regarding the Notice
Holders and the methods of distribution they have elected for their Covered Securities provided to
the Company in Notice and Questionnaires as necessary to permit such distribution by the methods
specified therein.
(b) Compliance with Law. Subject to Section 2(d), the Company shall ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming a part thereof and any amendment or
supplement thereto comply in all material respects with the 1933 Act and the rules and regulations
thereunder; (ii) any Shelf Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading; and (iii)
any Prospectus forming a part of any Shelf Registration Statement, and any amendment or supplement
to such Prospectus, does not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the Company makes no representation with
respect to any Holder Information.
(c) Notification to Holders. The Company, as promptly as reasonably practicable (but in any event within two Business
Days), shall notify the Holders, each Notice Holder, and the underwriters, if any, of the
following:
(i) when any Prospectus or any supplement thereto has been filed with the SEC and when the
Shelf Registration Statement or any post-effective amendment thereto has become effective;
(ii) of the issuance by the SEC or any other federal or state governmental authority of any
stop order suspending the effectiveness of the Shelf Registration Statement or of any order
preventing or suspending the use of any Prospectus or the initiation of any proceedings for that
purpose;
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(iii) of the receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of the Covered Securities included in any Shelf
Registration Statement for sale in any jurisdiction or the initiation of any proceeding for that
purpose;
(iv) of the occurrence of, but not the nature of or details concerning, any event or the
existence of any condition that requires the making of any changes in the Shelf Registration
Statement or the Prospectus so that, as of such date, neither such Shelf Registration Statement nor
the Prospectus contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were made) not misleading;
(v) of the Company’s determination that a post-effective amendment to the Shelf Registration
Statement is necessary (other than a post-effective amendment pursuant to Section
2(b)(ii)); and
(vi) of the commencement and termination of any Suspension Period.
(d) Withdrawal of Suspension. The Company shall use commercially reasonable efforts to obtain (i) the withdrawal of any
order suspending the effectiveness of any Shelf Registration Statement and the use of any related
Prospectus; and (ii) the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Covered Securities for offer or sale in any jurisdiction in which they
have been qualified for sale, in each case at the earliest possible time, and shall provide notice
to each Notice Holder and the Holders of the withdrawal of any such orders or suspensions.
(e) Holders. The Company shall promptly furnish, upon written request and without charge, to the Holders
and any Notice Holder, (i) at least one copy of any Shelf Registration Statement and any
post-effective amendment thereto, excluding all documents incorporated or deemed to
be incorporated therein by reference and all exhibits thereto, (ii) promptly after the same is
prepared and filed with the SEC, one copy of any Shelf Registration Statement and any amendment(s)
thereto, including financial statements and schedules, all documents incorporated therein by
reference, if requested by a Holder, and all exhibits, and (iii) upon the effectiveness of any
Shelf Registration Statement, one copy of the Prospectus included in such Shelf Registration
Statement and all amendments and supplements thereto, provided that the Company shall only be
obligated to furnish those documents that are not available on the XXXXX System.
(f) Copies of Prospectus. The Company shall, during the Shelf Registration Period, promptly deliver to the Holders,
each Notice Holder, and the underwriters, if any, as many copies of the Prospectus (including each
preliminary Prospectus) included in any Shelf Registration Statement, and any amendment or
supplement thereto, as such person may reasonably request and except as provided in Sections
2(d) and 3(n) hereof; and the Company hereby consents (except during a Suspension Period or
during the continuance of an event described in Section 3(c)(ii) through (v)) to the use of
the Prospectus and any amendment or supplement thereto by each of the selling Holders in connection
with the offering and sale of the
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Covered Securities covered by the Prospectus or any amendment or
supplement thereto during the Shelf Registration Period.
(g) Acceleration Request. The Company shall submit to the SEC, within five Business Days after the Company learns
that no review of a particular Shelf Registration Statement will be made by the staff of the SEC or
that the staff has no further comments on a particular Shelf Registration Statement, as the case
may be, a request for acceleration of effectiveness of such Shelf Registration Statement to a time
and date not later than 72 hours after the submission of such request.
(h) Blue Sky Laws. Prior to any offering of Covered Securities pursuant to any Shelf Registration Statement,
the Company shall, at its expense, register or qualify or cooperate with the Notice Holders in
connection with the registration or qualification (or exemption from such registration or
qualification) of such Covered Securities for offer and sale, under the securities or blue sky laws
of such jurisdictions within the United States as any such Notice Holders reasonably request and
shall maintain such qualification in effect so long as required and do any and all other acts or
things necessary or advisable to enable the offer and sale in such jurisdictions of the Covered
Securities covered by such Shelf Registration Statement; provided, however, that the Company will
not be required to (i) qualify generally to do business as a foreign corporation or as a dealer in
securities in any jurisdiction where it is not then so qualified or; (ii) take any action which
would subject it to service of process or taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then so subject.
(i) Stock Certificates. If the Covered Securities are in certificated form, the Company shall cooperate with the
Holders to facilitate the timely preparation and delivery of certificates representing
Covered Securities sold pursuant to any Shelf Registration Statement free of any restrictive
legends and registered in such names as Holders may request at least two Business Days prior to
settlement of sales of Covered Securities pursuant to such Shelf Registration Statement.
(j) FINRA. Subject to the exceptions contained in (i) and (ii) of Section 3(h) above, the
Company shall use commercially reasonable efforts to cause the Covered Securities covered by the
applicable Shelf Registration Statement to be registered with or approved by such other federal,
state, and local governmental agencies or authorities, and self-regulatory organizations in the
United States as may be necessary to enable the Holders to consummate the disposition of such
Covered Securities as contemplated by the Shelf Registration Statement; without limitation to the
foregoing, the Company shall provide all such information as may be required by FINRA in connection
with the offering under the Shelf Registration Statement of the Covered Securities, and shall
cooperate with each Holder in connection with any filings required to be made with FINRA by such
Holder in that regard.
(k) Post-Effective Amendments. Upon the occurrence of any event described in Section 3(c)(iv) or 3(c)(v)
hereof, the Company shall promptly prepare and file with the SEC a post-effective amendment to any
Shelf Registration Statement, or an amendment or supplement to the related Prospectus, or any
document incorporated therein by reference, or file a document that is incorporated or deemed to be
incorporated by reference in such Shelf Registration Statement or Prospectus, as the case may be,
so that, as thereafter delivered to
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purchasers of the Covered Securities included therein, the
Shelf Registration Statement and the Prospectus, in each case as then amended or supplemented, will
not include an untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were made) not misleading and, in
the case of a post-effective amendment, use its commercially reasonable efforts to cause it to
become effective as promptly as practicable; provided that the Company’s obligations under this
paragraph (k) shall be suspended if the Company has suspended the use of the Prospectus in
accordance with Section 2(d) hereof and given notice of such suspension to Notice Holders,
it being understood that the Company’s obligations under this Section 3(k) shall be
automatically reinstated at the end of such Suspension Period.
(l) Compliance with SEC Rules. The Company shall use commercially reasonable efforts to comply with all applicable rules
and regulations of the SEC and shall make generally available to its security holders an earnings
statement satisfying the provisions of Section 11(a) of the 1933 Act and Rule 158 promulgated by
the SEC thereunder (or any similar rule promulgated under the 0000 Xxx) for a 12-month period
commencing on the first day of the first fiscal quarter of the Company commencing after the
effective date of any Shelf Registration Statement or each post-effective amendment to any Shelf
Registration Statement, which such statements shall be made available no later than 45 days after
the end of the 12-month period or 90 days after the end of the 12-month period, if the 12-month
period coincides with the fiscal year of the Company. In addition,
the Company shall use commercially reasonable efforts to file in a timely manner all reports
required to be filed pursuant to the 1934 Act to allow the Company to remain eligible to use Form
S-3 during the Shelf Registration Period for any offering of the Covered Securities.
(m) Exchange Listing. The Company shall cause all shares of Common Stock to be reserved for listing on each
securities exchange or quotation system on which the Common Stock is then listed no later than the
date the applicable Shelf Registration Statement is declared effective and shall cause all Common
Stock to be so listed when issued, and, in connection therewith, to make such filings as may be
required under the 1934 Act and to have such filings declared effective as and when required
thereunder.
(n) Suspension of Disposition. Each Notice Holder agrees that, upon receipt of notice of the happening of an event
described in Sections 3(c)(ii) through and including 3(c)(vi), such Notice Holder
shall forthwith discontinue (and shall cause its agents and representatives to discontinue)
disposition of Covered Securities and will not resume disposition of Covered Securities until such
Notice Holder has received copies of an amended or supplemented Prospectus contemplated by
Section 3(k) hereof, or until such Notice Holder is advised in writing by the Company that
the use of the Prospectus may be resumed or that the relevant Suspension Period has been
terminated, as the case may be, provided that the foregoing shall not prevent the sale, transfer,
or other disposition of Covered Securities by a Holder in a transaction that is exempt from, or not
subject to, the registration requirements of the 1933 Act, so long as such Holder does not and is
not required to deliver the applicable Prospectus or Shelf Registration Statement in connection
with such sale, transfer, or other disposition, as the case may be.
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(o) Cooperation with Underwriters. To the extent that underwriters are involved in an offering of Covered Securities, the
Company shall:
(i) make representations and warranties to the underwriters in form, scope, and substance as
are customarily made by issuers to underwriters in such underwritten offerings;
(ii) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions
shall be reasonably satisfactory in form, scope, and substance to the underwriters) addressed to
the underwriters, covering the matters customarily covered in opinions requested in such
underwritten offerings and such other matters as may be reasonably requested by such underwriters;
(iii) obtain “comfort letters” and updates thereof from the Company’s independent certified
public accountants addressed to the underwriters; such letters shall be in customary form and
covering matters of the type customarily covered in “comfort letters” to underwriters in connection
with such underwritten offerings;
(iv) if an underwriting agreement is entered into, enter into customary indemnification and
contribution provisions and procedures as the underwriters shall reasonably request with respect to
all parties to be indemnified pursuant to Section 5; and
(v) deliver such documents and certificates as may be reasonably requested by the
underwriters, and with any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company.
4. Registration Expenses. The Company shall bear all fees and expenses incurred by it in connection with the performance
of its obligations under Sections 2 and 3 hereof. Such fees and expenses shall
include, without limitation (a) all registration and filing fees and expenses (including filings
made with FINRA); (b) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws; (c) all expenses of printing (including printing of Prospectuses) and the
Company’s expenses for messenger and delivery services and telephone; (d) all fees and
disbursements of counsel to the Company; (e) all application and filing fees in connection with
listing (or authorizing for quotation) the Common Stock on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and (f) all fees and disbursements
of independent certified public accountants of the Company. The Company shall bear its internal
expenses (including, without limitation, all salaries and expenses of their officers and employees
performing legal, accounting, or other duties), the expenses of any annual audit, and the fees and
expenses of any Person, including special experts, retained by the Company. Notwithstanding the
provisions of this Section 4, each Holder shall bear the expense of any broker’s
commission, agency fee, and underwriter’s discount or commission, if any, relating to the sale or
disposition of such Holder’s Covered Securities pursuant to a Shelf Registration Statement.
(a) Indemnification by Company. The Company agrees to indemnify and hold harmless each Holder of Covered Securities covered
by any Shelf Registration Statement,
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its directors, officers, partners, members, advisors, and
employees and each Person, if any, who controls any such Holder within the meaning of either the
1933 Act or the 1934 Act (collectively referred to for purposes of this Section 5 as a
“Holder”) against any losses, claims, damages, or liabilities, joint or several, or actions in
respect thereof, to which any of them may become subject, under the 1933 Act or otherwise, insofar
as such losses, claims, damages, liabilities, or actions arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the Shelf Registration
Statement, or in any Prospectus, or any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact necessary to make
the statements therein (in the case of any Prospectus, in the light of the circumstances under
which they were made) not misleading, and will reimburse each such Holder for any legal or other
expenses reasonably incurred by such Holder in connection with
investigating or defending any such action or claim as such expenses are incurred; provided,
however, that: (i) the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, or liability arises out of or is based upon Holder Information; and (ii) with
respect to any untrue statement or omission of material fact made in any Shelf Registration
Statement, or in any Prospectus, the indemnity agreement contained in this Section 5(a)
shall not inure to the benefit of a Holder from whom the Person asserting any such loss, claim,
damage, or liability purchased the securities concerned, to the extent that any such loss, claim,
damage, or liability of such Holder occurs under the circumstance where it shall have been
established that: (w) the Company had previously furnished copies of the Prospectus, and any
amendments and supplements thereto, to such Holder; (x) delivery of the Prospectus, and any
amendment or supplements thereto, was required by the 1933 Act to be made to such Holder; (y) the
untrue statement or omission of a material fact contained in the Prospectus was corrected in
amendments or supplements thereto; and (z) there was not sent or given to such Holder, at or prior
to the written confirmation of the sale of such securities to such Holder, a copy of such
amendments or supplements to the Prospectus. This indemnity agreement will be in addition to any
liability that the Company may otherwise have. This indemnity agreement will not apply to any
loss, damage, expense, liability, or claim arising from an offer or sale, occurring during a
Suspension Period, of Covered Securities by a Notice Holder who has previously received notice from
the Company of the commencement of the Suspension Period pursuant to Section 3(c)(vi).
(b) Indemnification by Holders. Each Holder, severally and not jointly, agrees to indemnify and hold harmless the Company,
each of its directors, officers, advisors, and employees and each Person, if any, who controls the
Company within the meaning of either the 1933 Act or the 1934 Act, to the same extent as the
foregoing indemnity from the Company to the Holders and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any loss, claim, damage, liability, or action, but only with reference
to Holder Information supplied by such Holder. In no event shall any Holder, its directors,
officers, partners, members, or employees or any Person, if any, who controls such Holder be liable
or responsible for any amount in excess of the amount by which the total amount received by such
Holder with respect to its sale of Covered Securities pursuant to a Shelf Registration Statement
exceeds: (i) the amount paid by such Holder for such Covered Securities, plus (ii) the amount of
any damages that such Holder, its directors, officers, or any Person who controls such Holder has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or
alleged
11
omission. This indemnity agreement will be in addition to any liability that such Holder
may otherwise have.
(c) Notification. Promptly after receipt by an indemnified party under this Section 5 of notice of any
claim or the commencement of any action or proceeding (including any governmental investigation),
such indemnified party will, if a claim for indemnification in respect thereof is to be made
against the indemnifying party under Section 5(a) or 5(b) hereof, notify the
indemnifying party in writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to any indemnified
party to the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on account of this
indemnity agreement. In case any such action or proceeding is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein (jointly with any other indemnifying party similarly
notified), and to the extent that it may elect, by written notice, delivered to such indemnified
party promptly after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party; provided, however,
that if the defendants (including any impleaded parties) in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to defend such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to appoint counsel to defend such action and approval by the
indemnified party of such counsel, the indemnifying party will not be liable to such indemnified
party under this Section 5 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless: (i) the indemnified party shall
have employed separate counsel in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the expense of more than
one separate counsel (in addition to any local counsel), approved by the Holders in the case of
paragraph (a) of this Section 5, representing the indemnified parties under such paragraph
(a) who are parties to such action); (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified party within a
reasonable time after notice or commencement of the action; (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of the indemnifying
party; or (iv) the use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim, action, suit, or
proceeding in respect of which indemnification or contribution may be sought hereunder (whether or
not the indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise, or consent includes an unconditional release of each indemnified party from
all liability arising out of such claim, action, suit, or proceeding. Subject to the provisions of
the immediately following sentence, no indemnifying party shall be liable for any settlement,
compromise, or the consent to the entry of judgment in connection with any such action effected
without its written consent, but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action other than a
12
judgment entered with the consent of
such indemnified party, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such settlement or judgment.
If at any time an indemnified party shall have requested that an indemnifying party reimburse the
indemnified party for reasonable fees and expenses of counsel as contemplated by this Section
5(c) and to which it would be entitled under Section 5(a) or 5(b) hereof, the
indemnifying party agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if: (x) such settlement is entered into more than 45 days after receipt
by such indemnifying party of such request for reimbursement, (y) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into, and (z) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the date of such
settlement.
(d) Contribution. In the event that the indemnity provided in paragraph (a) or (b) of this Section 5
is unavailable to or insufficient to hold harmless an indemnified party for any reason, each
indemnifying party agrees to contribute to the aggregate losses, claims, damages, and liabilities
(including legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively, “Losses”) to which the indemnified party may be subject in such
proportion as is appropriate to reflect the relative benefits received by the Company from the
issuance of the Covered Securities, on the one hand, and a Holder with respect to the sale by such
Holder of Covered Securities, on the other hand; provided, however, that in no case shall an
indemnifying party that is a Holder be responsible for any amount in excess of the total price (net
of any commission or underwriting fee or discount) at which the Covered Securities are sold by such
Holder to a purchaser. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and such Holder shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of the Company
on the one hand and of such Holder on the other in connection with the statements or omissions
which resulted in such Losses, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and such Holder on the other shall be
deemed to be in the same respective proportions as the total net proceeds from the issuance of the
Covered Securities received by or on behalf of the Company, on the one hand, and the total proceeds
received by such Holder with respect to its sale of Covered Securities under the Shelf Registration
Statement, on the other hand, bear to the total of both such amounts. Relative fault shall be
determined by reference to, among other things, whether any untrue or any alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or relates to Holder Information supplied by
such Holder, on the other hand, the intent of the parties and their relative knowledge,
information, and opportunity to correct or prevent such untrue statement or omission. The parties
agree that it would not be just and equitable if contribution pursuant to this paragraph (d) were
determined by pro rata allocation or any other method of allocation that does not take account of
the equitable considerations referred to above. Notwithstanding the provisions of this paragraph
(d), no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5(d), each Person who controls such Holder
within the meaning of either the 1933 Act or the 1934 Act shall have the same rights to
contribution as such Holder, and each Person who controls the Company within the meaning of either
the 1933 Act or the 1934 Act
13
shall have the same rights to contribution as the Company, subject in
each case to the applicable terms and conditions of this paragraph (d).
(e) Survival. The provisions of this Section 5 will remain in full force and effect, regardless
of any investigation made by or on behalf of any Holder, any underwriter, or the Company or
any of the officers, directors, or controlling Persons referred to in Section 5
hereof, and will survive the sale by a Holder of Covered Securities covered by a Shelf Registration
Statement.
(f) Rule 144. The Company covenants that it shall use commercially reasonable efforts to file the reports
required to be filed by it under the 1933 Act and the 1934 Act in a timely manner so long as the
Covered Securities remain outstanding. The Company further covenants that, for as long as any
Covered Securities remain outstanding, it will take such further action as any Holder of Covered
Securities may reasonably request, all to the extent required from time to time to enable such
Holder to sell Covered Securities without registration under the 1933 Act within the limitation of
the exemptions provided by Rule 144. Upon the written request of any Holder of Covered Securities,
the Company shall deliver to such Holder a written statement as to whether it has complied with
such requirements. The Company further covenants that in the event the Company fails, in violation
of this Section 5, to take any actions required to enable any Holder to sell Covered
Securities pursuant to Rule 144, the Company will use commercially reasonable efforts to take any
such actions as may be required to again enable Holders to sell pursuant to Rule 144, and in the
event the Company determines that it is no longer eligible to use Form S-3, it shall use
commercially reasonable efforts to file a registration statement on the appropriate form, including
Form S-1, as soon as practicable covering the registration of the resale of the Covered Securities
by the Holders and shall use its commercially reasonable efforts to cause such registration
statement to be declared effective by the SEC under the 1933 Act as soon as possible.
6. Holder’s Obligation. Each Holder agrees that no Holder shall be entitled to sell any of the Common Stock pursuant to
a Shelf Registration Statement or to receive a Prospectus relating thereto unless such Holder has
furnished the Company with a completed Notice and Questionnaire as required pursuant to Section
2(b).
7. Miscellaneous.
(a) No Inconsistent Agreements. Except as provided herein, the Company has not, as of the date hereof, entered into nor
shall it, on or after the date hereof, enter into, any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be
amended, qualified, modified, or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company consents in writing and the Company has
obtained the written consent of at least the Majority Holders; provided that
with respect to any matter that adversely affects the rights of the Holders hereunder, the
Company shall obtain the written consent of the Holders against which such amendment,
qualification, supplement, waiver, or consent is to be effective.
14
Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose Covered Securities are
being sold pursuant to a Shelf Registration Statement and that does not adversely affect the rights
of other Holders may be given by the Majority Holders.
(c) Notices. All notices and other communications provided for or permitted hereunder shall be made in
writing by hand-delivery, first-class mail, telecopier, or air courier guaranteeing overnight
delivery:
(i) if to the Holders, at the most current address of such Holder maintained by the registrar
of the Common Stock, or, in the case of the Notice Holders, the address set forth in their Notice
and Questionnaire;
with copies to
Xxxxxxx X. Xxxxx, Xx.
000 Xxxxxxx
Xxxxxxx, Xxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xx.xxxxx@xxxxxxxxxxxxxx.xxx
Xxxxxxx X. Xxxxx, Xx.
000 Xxxxxxx
Xxxxxxx, Xxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xx.xxxxx@xxxxxxxxxxxxxx.xxx
with a copy given in the manner
prescribed above, to:
prescribed above, to:
Bass, Xxxxx & Xxxx PLC
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx III, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxx@xxxxxxxxx.xxx
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx III, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxx@xxxxxxxxx.xxx
(ii) if to the Company, to:
Xxxxx & Wesson Holding Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
15
With a copy to:
Xxxxxxxxx Traurig, LLP
0000 Xxxx Xxxxxxxxx Xx., Xxxxx 000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
0000 Xxxx Xxxxxxxxx Xx., Xxxxx 000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
All such notices and communications shall be deemed to have been duly given when received, if
delivered by hand or air courier, and when sent (with confirmation of receipt), if sent by
first-class mail or telecopier.
The Holders or the Company by notice to the other may designate additional or different
addresses for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns
of each of the parties.
(e) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(g) Governing Law. All questions concerning the construction, validity, enforcement, and interpretation of
this Agreement shall be governed by the internal laws of the state of Delaware, without giving
effect to any choice of law or conflict of law provision or rule (whether of the state of Delaware
or any other jurisdictions) that would cause the application of the laws of any jurisdictions other
than the state of Delaware. Each party hereby irrevocably submits to the exclusive jurisdiction of
the state and federal courts of the state of Delaware located in New Castle County, for the
adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any suit, action, or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an inconvenient forum, or that
the venue of such suit, action, or proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action, or
proceeding by mailing a copy thereof to such party at the address for such notices to it under this
Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall be deemed to
limit in any way any right to serve process in any manner permitted by law. If any provision of
this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the remainder of this Agreement
in that jurisdiction or the validity or enforceability of any provision of this Agreement in any
other jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES
16
ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(h) Severability. In the event that any one of more of the provisions contained herein, or the application
thereof in any circumstances, is held invalid, illegal, or unenforceable in any respect for any
reason, the validity, legality, and enforceability of any such provision in every other respect and
of the remaining provisions hereof shall not be in any way impaired or affected thereby, it being
intended that all of the rights and privileges of the parties shall be enforceable to the fullest
extent permitted by law.
(i) Termination. This Agreement and the obligations of the parties hereunder shall terminate upon the end of
the Shelf Registration Period, except for any liabilities or obligations under Section 5 or
7(g).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
17
IN WITNESS WHEREOF, each Holder and the Company have caused their respective signature page to
this Registration Agreement to be duly executed as of the date first written above.
| COMPANY: XXXXX & WESSON HOLDING CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | President and CEO | |||
SIGNATURE PAGE TO REGISTRATION AGREEMENT
| HOLDERS: |
||||
| /s/ Xxxxxxx X. Xxxxxxx | ||||
| XXXXXXX X. XXXXXXX | ||||
| /s/ Xxxxx X. Xxxxxxx | ||||
| XXXXX X. XXXXXXX | ||||
| /s/ Xxxxx X. Xxxxxxxx | ||||
| XXXXX X. XXXXXXXX | ||||
| /s/ Xxxxx Xxxx | ||||
| XXXXX XXXX | ||||
| THE X.X. XXXXX, XX. REVOCABLE TRUST DATED AS OF
DECEMBER 23, 1998 |
||||
| By: | /s/ Xxxxxxx X. Xxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxx, Xx. | |||
| Title: | Trustee | |||
| B&D — R&S, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxx, Xx. | |||
| Title: | Secretary and Treasurer | |||
| DAKOTAH INVESTMENTS, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Manager | |||
| TRIPLE J OF WICHITA, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Member | |||
| /s/ Xxxxxx X. Xxxxxx | ||||
| XXXXXX X. XXXXXX | ||||
SIGNATURE PAGE TO REGISTRATION AGREEMENT
| SGM CAPITAL, LLC |
||||
| By: | /s/ Xxxxxxx XxXxxxxxx | |||
| Name: | Xxxxxxx XxXxxxxxx | |||
| Title: | Manager | |||
| THE W. XXX XXXXXXXX MARITAL TRUST |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Trustee | |||
| XXXXX-XXXXXX, LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxx, Xx. | |||
| Title: | Manager | |||
| /s/ Xxxx X. Xxxxxxxx | ||||
| XXXX X. XXXXXXXX | ||||
| XXXX XXXXXXXX | ||||
| X. XXXXXX PLANTS | ||||
| /s/ Shez Bandukwala | ||||
| SHEZ BANDUKWALA | ||||
| INVESTCORP INTERLACHEN MULTI-STRATEGY MASTER FUND LIMITED |
||||
| By: | Interlachen Capital Group LP, Authorized Signatory | |||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Authorized Signatory | |||
| /s/ Xxxxxx X. Xxxx | ||||
| XXXXXX X. XXXX | ||||
| /s/ Xxxxxxx X. Xxxxxxx | ||||
| XXXXXXX X. XXXXXXX | ||||
SIGNATURE PAGE TO REGISTRATION AGREEMENT