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REGISTRATION RIGHTS
AGREEMENT
Dated as of September 20, 1996
By and Between
THE SPORTS AUTHORITY, INC.
and
XXXXXXX, XXXXX & CO.
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of September 20, 1996, by
and between The Sports Authority, Inc., a Delaware corporation (the "Company"),
and Xxxxxxx, Sachs & Co. (the "Purchaser").
RECITALS
WHEREAS, the Company and the Purchaser have entered into a Purchase
Agreement, dated September 17, 1996 (the "Purchase Agreement"), providing for,
among other things, the sale by the Company and the purchase by the Purchaser of
an aggregate of U.S.$130,000,000 principal amount, and, at the election of the
Purchaser, up to an aggregate of U.S.$19,500,000 additional principal amount, of
the Company's 5 1/4% Convertible Subordinated Notes due September 15, 2001,
convertible into shares of Common Stock (as defined herein) of the Company as
provided in the Indenture (as defined herein); and
WHEREAS, this Agreement is being entered into pursuant to the
Purchase Agreement as a condition to the closing of the sale of the Securities
(as defined herein) pursuant thereto;
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants, representations, warranties and agreements herein contained, the
parties hereto agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "CLOSING DATE" shall mean the First Time of Delivery as defined
in the Purchase Agreement.
(b) "COMMISSION" shall mean the Securities and Exchange Commission,
or any other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(c) "COMMON STOCK" means the Common Stock, par value $.01 per share,
of the Company, and any securities of the Company or any successor which may be
issuable upon
conversion of the Securities pursuant to Article Twelve of the Indenture.
(d) "EFFECTIVE TIME" shall mean the date on which the Commission
declares the Registration Statement effective or on which the Registration
Statement otherwise becomes effective.
(e) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
or any successor thereto, as the same shall be amended from time to time.
(f) The term "HOLDER" shall mean any person that is the record owner
of Registrable Securities or any person that has a beneficial interest in a
global security representing Registerable Securities.
(g) "INDENTURE" shall mean the Indenture, dated as of September 20,
1996, between the Company and The Bank of New York, as Trustee, as amended and
supplemented from time to time in accordance with its terms.
(h) The term "MANAGING UNDERWRITER OR UNDERWRITERS" shall mean the
person or persons selected pursuant to Section 7(a) of this Agreement to manage
an underwritten offering of Registrable Securities.
(i) The term "PERSON" shall have the meaning specified in the
Indenture.
(j) "PROSPECTUS" shall mean the prospectus (including any
preliminary prospectus and any final prospectus) included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by the Registration Statement and by all other amendments and
supplements to such prospectus, including all material incorporated by reference
in such prospectus and all documents filed after the date of such prospectus by
the Company under the Exchange Act and incorporated by reference therein.
(k) "REGISTRABLE SECURITIES" shall mean all or any portion of the
Securities issued under the Indenture and the shares of Common Stock issuable
upon conversion of such Securities; PROVIDED, HOWEVER, that a Security or the
shares of Common Stock issuable upon conversion of a Security ceases to be a
Registrable Security when it (i) has been effectively registered under the
Securities Act and sold in a manner contemplated by the Registration Statement,
(ii) has been transferred in compliance with Rule 144 under
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the Securities Act (or any successor provisions thereto) or (iii) otherwise has
been transferred and a new Security or share of Common Stock not subject to
transfer restrictions under the Securities Act has been delivered by or on
behalf of the Company in accordance with Section 3.5(b) of the Indenture.
(l) "REGISTRATION EXPENSES" shall have the meaning assigned thereto
in Section 4 of this Agreement.
(m) "REGISTRATION STATEMENT" shall mean a "shelf" registration
statement filed under the Securities Act providing for the registration of, and
the sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities pursuant to Rule 415 under the Securities Act and/or any
similar rule that may be adopted by the Commission, filed by the Company
pursuant to the provisions of Section 2 of this Agreement, including the
Prospectus contained therein, any amendments and supplements to such
registration statement, including post-effective amendments, and all exhibits
and all material incorporated by reference in such registration statement.
(n) "RESTRICTED SECURITY" shall have the meaning specified in the
Indenture.
(o) "RULES AND REGULATIONS" shall mean the published rules and
regulations of the Commission promulgated under the Securities Act or the
Exchange Act, as in effect at any relevant time.
(p) "SECURITIES" shall mean the Company's 5 1/4% Convertible
Subordinated Notes due September 15, 2001, to be issued pursuant to the
Indenture and sold pursuant to the Purchase Agreement and any securities issued
in exchange therefor or in lieu thereof pursuant to the Indenture.
(q) "SECURITIES ACT" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
(r) "TRUST INDENTURE ACT" shall mean the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
(s) The term "UNDERWRITER" shall hereinafter mean any underwriter of
an underwritten offering of Registrable Securities.
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(t) Wherever there is a reference in this Agreement to a percentage
of the "principal amount" of the Registrable Securities or to a percentage of
Registrable Securities, Common Stock shall be treated as representing the
principal amount of Securities which was surrendered for conversion in order to
receive such number of shares of Common Stock.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) The Company shall, at its expense, within 90 calendar days
following the Closing Date, file with the Commission a Registration Statement
with respect to the Registrable Securities and thereafter shall use its
reasonable efforts to cause such Registration Statement to be declared effective
by the Commission under the Securities Act within 180 calendar days after the
Closing Date.
(b) The Company shall use its best efforts, and will file such
supplements or amendments to the Registration Statement as may be necessary or
appropriate, to keep the Registration Statement continuously effective under the
Securities Act and usable by holders for resales of Registrable Securities for a
period of three years from the Effective Time or, if earlier, until there are no
outstanding Registrable Securities.
(c) Upon written notice to each holder of a Registrable Security,
the Company may postpone having the Registration Statement declared effective as
required by Section 2(a) above for a reasonable time specified in the notice but
not exceeding 90 days, if the Company is in possession of material non-public
information the disclosure of which would have a material adverse effect on the
business, operations, prospects, condition (financial or otherwise) of the
Company and its subsidiaries, taken as a whole.
3. REGISTRATION PROCEDURES.
(a) Prior to or at the Effective Time the Company shall qualify the
Indenture under the Trust Indenture Act. In the event that any modification or
amendment to the Indenture is required by the Trust Indenture Act or by the
staff of the Commission in order so to qualify the Indenture, the Company shall
without delay call a meeting of Holders (as defined in the Indenture) in the
manner and with the effect provided by the Indenture, at which meeting such
Holders shall be asked to consider and to vote upon such modifications or
amendments, but only such modifications or
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amendments, as shall be so required. In connection with any such meeting, the
Company shall solicit proxies from holders to be voted in favor of such
modifications or amendments and shall recommend that Holders vote in favor of
such modifications or amendments. Notwithstanding the foregoing, in the event
that, in the written opinion of counsel to the Company, such modifications or
amendments may be effected without a meeting of Holders pursuant to the
applicable provisions of the Indenture, the Company shall effect such
modifications or amendments without such a meeting.
(b) In the event that any such amendment or modification referred to
in Section 3(a) hereof involves the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
Registration Statement, the Company shall use its best efforts to cause the
Registration Statement to permit the sale of the Registrable Securities by the
holders thereof in accordance with the intended method or methods of
distribution thereof described in the Registration Statement. In connection
therewith, the Company shall, as promptly as possible:
(i) before filing a Registration Statement or Prospectus or any
amendments or supplements thereto (other than periodic reports filed with
the Commission under the Exchange Act), the Prospectus or any prospectus
supplement, furnish to the holders of the Registrable Securities covered
by such Registration Statement and the managing underwriter or
underwriters of Registrable Securities being sold in any underwritten
offering copies of all such documents proposed to be filed, together with
copies of documents previously filed with the Commission and proposed to
be incorporated by reference in the Registration Statement, and the
Company will not file any Registration Statement or amendment thereto or
any Prospectus or any supplement thereto (other than periodic reports
filed with the Commission under the Exchange Act after the initial filing
of the Registration Statement and incorporated by reference in the
Registration Statement, provided that the Company shall furnish copies of
such documents as promptly as practicable after the filing thereof with
the Commission to such holders of Registrable Securities covered by such
Registration Statement and such managing underwriter or underwriters, if
any) to which the Purchaser or, if the Purchaser is not a selling
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holder, the holders of at least 50% in aggregate principal amount of the
Registrable Securities covered by such Registration Statement or the
managing underwriter or underwriters, if any, shall reasonably object;
PROVIDED, that the Company may assume, for the purposes of this
subparagraph (i), that objections to the inclusion of information
specifically requested to be included in the Registration Statement or
other documents by the staff of the Commission, or in the opinion of
counsel to the Company required to be in the Registration Statement or
other documents, or specifically required by the Securities Act or the
Rules and Regulations, shall not be deemed to be reasonable;
(ii) for a reasonable period prior to the filing of the
Registration Statement and throughout the period specified in Section 2(b)
hereof, make available for inspection by a representative or
representatives of the Purchaser or, if the Purchaser is not then a
holder, the holders of not less than 20% of the principal amount of the
Registrable Securities, any underwriter participating in any disposition
pursuant to a Registration Statement, and any attorney or accountant
retained by the Purchaser or such selling holders or underwriter, all
financial and other records, pertinent corporate documents and properties
of the Company, and cause the Company's officers, directors, employees and
agents, including independent public accounts and counsel, to supply all
information reasonably requested by any such representative, underwriter,
attorney or accountant in connection with such Registration Statement;
PROVIDED that any records, information or documents that are designated by
the Company in writing as confidential shall be kept confidential by such
persons unless disclosure of such records, information or documents is
required by court or administrative order; and PROVIDED FURTHER that the
Company shall not be required to furnish to any such holder any trade
secrets, customer lists or other proprietary information that it
reasonably concludes could, if disclosed generally, adversely affect the
Company or its competitive position;
(iii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement, and such
supplements to the Prospectus, as may be required by the Rules and
Regulations or the instructions applicable to the registration form
utilized by the Company or by the Securities Act or otherwise necessary to
keep the
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Registration Statement effective for the period specified in Section 2(b)
and cause the Prospectus as so supplemented to be filed pursuant to Rule
424 under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all Registrable
Securities covered by such Registration Statement during the period
specified in Section 2(b) in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iv) notify the selling holders of Registrable Securities and the
managing underwriter or underwriters, if any, promptly, and confirm such
advice in writing,
(A) when the Registration Statement, any pre-effective
amendment thereto, the Prospectus or any prospectus supplement
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,
(B) of any comments by the Commission with respect to
the Registration Statement, the Prospectus or any prospectus
supplement or any request by the Commission for amendments or
supplements to the Registration Statement, the Prospectus or any
prospectus supplement or for additional information,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or
the initiation or threatening of any proceedings for that
purpose,
(D) if at any time the representations and warranties of
the Company contemplated by subparagraph (xiv) below or Section
5 hereof cease to be true and correct,
(E) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the
Registrable Securities for sale under the securities or "Blue
Sky" laws of any jurisdiction or the initiation or threatening
of any proceeding for such purpose, and
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(F) of the existence of any fact known to the Company
which results in the Registration Statement, any amendment or
post-effective amendment thereto, the Prospectus, any prospectus
supplement, or any document incorporated therein by reference
containing an untrue statement of material fact or omitting to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading;
(v) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(vi) if requested by any managing underwriter or underwriters or
any holder of Registrable Securities being sold pursuant to an
underwritten offering, as soon as practicable incorporate in a prospectus
supplement or post-effective amendment to the Registration Statement such
information as is required by the applicable Rules and Regulations and as
the managing underwriter or underwriters or such holder reasonably
specifies should be included therein relating to the terms of the sale of
the Registrable Securities, including without limitation, information with
respect to the principal amount or number of shares of Registrable
Securities being sold by such holder to any underwriter or underwriters,
the name and description of such holder or underwriter, the offering price
of such Registrable Securities and any discount, commission or other
compensation payable in respect thereof, the purchase price being paid
therefor by such underwriter or underwriters and with respect to any other
terms of the underwritten offering (including whether such underwriting
commitment is on a firm commitment or best efforts basis) of the
Registrable Securities to be sold in such offering; and make all required
fillings of such prospectus supplement or post-effective amendment
promptly after being notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(vii) furnish to each selling holder of Registrable Securities and
each managing underwriter, if any, without charge, an executed copy of the
Registration Statement, each amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated by
reference therein) and such number of copies of the Registration Statement
(including exhibits thereto and documents incorporated by
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reference therein) as such persons may reasonably request in order to
facilitate the offering and disposition of the Registrable Securities;
(viii) deliver to each selling holder of Registrable Securities
and each managing underwriter, if any, without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto, and such other documents, as such persons may
reasonably request in order to facilitate the offering and disposition of
the Registrable Securities and to permit any of such persons to satisfy
the prospectus delivery requirements of the Securities Act; the Company
hereby consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling holders of Registrable
Securities and by each underwriter thereof, if any, in connection with the
offering and sale of the Registrable Securities covered by the Prospectus
or any amendment or supplement thereto; and as promptly as practicable
after the filing with the Commission of any document which is incorporated
by reference in the Prospectus the Company will deliver a copy of such
document to each such selling holder and managing underwriter, if any;
(ix) prior to any public offering of Registrable Securities, use
its best efforts to (A) register or qualify the Registrable Securities
covered by the Registration Statement for offer and sale under the
securities or "Blue Sky" laws of such states of the United States as any
selling holder or underwriter reasonably shall request, (B) keep such
registrations or qualifications in effect and comply with such laws so as
to permit the continuance of offers, sales and dealings therein in such
jurisdictions for so long as may be necessary (but not to exceed three
years from the Effective Time) to enable any such holder or underwriter to
complete its distribution of Registrable Securities pursuant to the
Registration Statement and (C) take any and all other actions as may be
reasonably necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Securities; PROVIDED, HOWEVER, that the
Company shall not be required for any such purpose to qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required
to qualify but for the requirements of this Section 3(c)(ix) or consent to
general service of process in any such jurisdiction;
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(x) cooperate with the selling holders of Registrable Securities
and the managing underwriter or underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates shall not bear any restrictive
legends and which, if so required by any securities exchange upon which
any Registrable Securities are listed, shall be printed, lithographed or
engraved, or produced by any combination of such methods, on steel
engraved borders; and enable such Registrable Securities to be in such
denominations and registered in such names as the selling holder or the
managing underwriter or underwriters, if any, may request at least two
business days prior to any delivery of Registrable Securities;
(xi) use its best efforts to cause the Registrable Securities
covered by the Registration Statement to be registered with or approved by
such other governmental agencies or authorities located within the United
States (federal, state and local) as may be necessary to enable the seller
or sellers thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Securities;
(xii) if any fact contemplated by subparagraph (iv)(F) above shall
exist, prepare a post-effective amendment or supplement to the
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that the Prospectus, as thereafter delivered to the purchasers of the
Registrable Securities, will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading;
(xiii) use its best efforts to cause the shares of Common Stock
constituting Registrable Securities covered by the Registration Statement
to be listed on the New York Stock Exchange or, if the Common Stock is not
then listed on the New York Stock Exchange, to list such shares or qualify
such shares for quotation on each securities exchange or quotation system
on which outstanding Common Stock of the Company is then listed or quoted,
if any;
(xiv) enter into such customary agreements (including, if
requested by holders of at least 50% in aggregate principal amount of the
Registrable Securities being registered, a customary underwriting
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agreement with the underwriter or underwriters, if any) and take all such
other actions in connection therewith in order to expedite or facilitate
the disposition of any Registrable Securities as may be reasonably
requested and, in such connection, if an underwriting agreement is entered
into:
(A) make such representations and warranties to the
holders of such Registrable Securities and the underwriter or
underwriters in form, substance and scope as are customarily
made in connection with primary underwritten offerings of equity
or convertible debt securities;
(B) cause to be delivered to the sellers of Registrable
Securities and the underwriter or underwriters opinions of
counsel to the Company, dated the effective date of the
Registration Statement and the date of delivery of any
Registrable Securities sold pursuant thereto (which counsel and
opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriter or underwriters and the
counsel to the holders of at least 50% in aggregate principal
amount of the Registrable Securities being registered or, in the
case of an underwritten offering, sold), addressed to each
selling holder and each underwriter covering the matters
customarily covered in opinions requested in primary
underwritten offerings of equity and convertible debt securities
and such other matters as may be reasonably requested by the
counsel to holders of at least 50% in aggregate principal amount
of the Registrable Securities being sold or the managing
underwriter or underwriters;
(C) cause to be delivered on the date of the Prospectus
and, if later, the effective date of the most recent
post-effective amendment to the Registration Statement, and at
the time of the signing of the underwriting or purchase
agreement and at the time of delivery of any Registrable
Securities sold pursuant thereto, letters from the Company's
independent certified public accountants addressed to each
selling holder and each underwriter stating that such
accountants are independent public accountants within the
meaning of the
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Securities Act and the applicable published Rules and
Regulations thereunder, and otherwise in customary form and
covering such financial and accounting matters as are
customarily covered by letters of independent certified public
accountants delivered in connection with primary underwritten
public offerings of equity or convertible debt securities;
(D) cause the same to set forth in full the
indemnification provisions and procedures of Section 6 hereof
(or such other provisions and procedures satisfactory to the
managing underwriter or underwriters) with respect to all
parties to be indemnified pursuant to said Section; and
(E) deliver such documents and certificates as may be
reasonably requested by any holder of Registrable Securities
being sold or the managing underwriter or underwriters to
evidence the accuracy of the representations contemplated by
clause (A) above and compliance with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the Company in connection with such offering;
(xv) otherwise use its best efforts to comply with all applicable
Rules and Regulations, and make generally available to its security
holders earnings statements satisfying the provisions of Section 11(a) of
the Securities Act (including, at the Company's option, by complying with
Rule 158 thereunder) no later than 45 days after the end of any 12-month
period (or 90 days, if such period is a fiscal year) (A) commencing at the
end of any fiscal quarter in which the Registrable Securities are sold in
an underwritten offering, or, if not sold in such an offering, (B)
commencing with the first month of the Company's first fiscal quarter
commencing after the effective date of the Registration Statement, which
statements shall cover said 12-month periods; and
(xvi) notify in writing each holder of Registrable Securities of
any proposal by the Company to amend or waive any provision of this
Agreement pursuant to Section 9(h) hereof and of any amendment or waiver
effected pursuant thereto, each of which notices shall contain the text of
the amendment or waiver proposed or effected, as the case may be.
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(d) The Company shall give notice to the holders of Registrable
Securities, in the same manner as a notice to Holders pursuant to Section 1.6 of
the Indenture, not less than 30 days prior to the filing of the Registration
Statement, of the Company's intention to make such filing and requiring each
such holder to inform the Company, not less than 10 days prior to such intended
filing, whether it will be a selling holder. The Company may require each
selling holder of Registrable Securities as to which any registration is being
effected to furnish to the Company such information regarding such holder, the
Registrable Securities held by such holder and the distribution of such
Registrable Securities as the Company may from time to time reasonably request.
If a holder refuses to supply the Company with any of such information on the
grounds that it is not necessary to include such information in the Registration
Statement or for any other reason, the Company may exclude such holder's
Registrable Securities from the Registration Statement if the Company provides
such holder with a written opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP or other
counsel chosen by the Company and reasonably satisfactory to such holder to the
effect that such information must be included in the Registration Statement and
such holder thereafter continues to withhold such information. The deletion of
such holder's Registrable Securities from a registration shall not affect the
registration of the other Registrable Securities to be included in the
Registration Statement. Each such holder agrees, by the acquisition of
Registrable Securities, to notify the Company as promptly as practicable of any
inaccuracy or change in information previously furnished by such holder to the
Company or of the occurrence of any event in either case as a result of which
any Prospectus relating to such registration contains or would contain an untrue
statement of a material fact regarding such holder or such holder's intended
method of distribution of such Registrable Securities or omits to state any
material fact regarding such holder or such holder's intended method of
distribution of such Registrable Securities necessary to make the statements
therein, in light of the circumstances then existing, not misleading and
promptly to furnish to the Company any additional information required to
correct and update any previously furnished information or required so that such
Prospectus shall not contain, with respect to such holder or the distribution of
such Registrable Securities, an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances then existing, not misleading.
(e) Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon
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receipt of any notice from the Company of the happening of any event of the kind
described in Section 3(c)(iv)(F) hereof, such holder will forthwith discontinue
disposition of Registrable Securities pursuant to the Registration Statement
until such holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 3(c)(xii) hereof, or until it is advised in
writing by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings which are incorporated
by reference in the Prospectus, and, if so directed by the Company, such holder
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 at the time of receipt of such notice.
4. REGISTRATION EXPENSES.
The Company agrees to bear and to pay or cause to be paid promptly
upon request being made therefor all expenses incident to the Company's
performance of or compliance with this Agreement, including, without limitation,
(a) all Commission registration and filing fees and expenses, (b) all fees and
expenses in connection with the registration or qualification of the Registrable
Securities for offering and sale under the State securities and blue sky laws
referred to in Section 3(c)(ix) hereof as the managing underwriter or
underwriters, if any, or the holders of such Registrable Securities may
designate, including reasonable fees and disbursements, if any, of counsel for
the selling holders or underwriters in connection with such registrations or
qualifications, (c) all expenses relating to the preparation, printing,
distribution and reproduction of the Registration Statement required to be filed
hereunder, each prospectus included therein or prepared for distribution
pursuant hereto, each amendment or supplement to the foregoing, the expenses of
preparing the Registrable Securities for delivery and the expenses of printing
or producing any underwriting agreement(s), agreement(s) among underwriters and
"Blue Sky" memoranda, any selling agreements and all other documents in
connection with the offering, sale or delivery of Registrable Securities to be
disposed of, (d) messenger, telephone and delivery expenses of the Company, (e)
fees and expenses of any Trustee under the Indenture, any Transfer Agent and
Registrar with respect to the Registrable Securities and any escrow agent or
custodian, (f) internal expenses of the Company (including, without limitation,
all salaries and expenses of the Company's officers and employees performing
legal or
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accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of the Company (including the expenses
of any opinions or "cold comfort" letters required by or incident to such
performance and compliance), (h) fees, disbursements and expenses of one counsel
for the holders of Registrable Securities retained in connection with such
registration, as selected by the holders of at least 50% in aggregate principal
amount of the outstanding Registrable Securities being registered (which counsel
shall be reasonably satisfactory to the Company), (i) fees, expenses and
disbursements of any other persons, including special experts, retained by the
Company in connection with such registration and (j) all fees and expenses
incurred in connection with the listing of the shares of Common Stock
constituting Registrable Securities on the New York Stock Exchange, or the
listing of such shares on any securities exchange or qualification of such
shares for quotation on any quotation system, pursuant to Section 3(c)(xiii)
(collectively, the "Registration Expenses"). To the extent that any Registration
Expenses are incurred, assumed or paid by any holder of Registrable Securities
or any underwriter thereof, the Company shall reimburse such person for the full
amount of the Registration Expenses so incurred, assumed or paid promptly after
receipt of a request therefor. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above.
5. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to, and agrees with, the
Purchaser and each of the holders from time to time of Registrable Securities
that:
(a) Each Registration Statement and each Prospectus contained
therein or furnished pursuant to Sections 3(c)(vii) and 3(c)(viii) hereof and
any further amendments or supplements to any such Registration Statement or
Prospectus, when it becomes effective or is filed with the Commission, as the
case may be, and, in the case of an underwritten offering of Registrable
Securities, at the time of the closing under the underwriting agreement relating
thereto, will conform in all material respects to the requirements of the
Securities Act and will not contain an untrue statement of a material fact or
omit to state a
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material fact required to be stated therein or necessary to make the statements
therein not misleading; and at all times subsequent to the Effective Time when a
prospectus would be required to be delivered under the Securities Act, other
than from (i) such time as a notice has been given to holders of Registrable
Securities pursuant to Section 3(c)(iv)(F) hereof until (ii) such time as the
Company furnishes an amended or supplemented prospectus pursuant to Section
3(c)(xii) hereof, the Registration Statement, and the Prospectus contained
therein or furnished pursuant to Section 3(c)(vii) or 3(c)(viii) hereof, as then
amended or supplemented, will conform in all material respects to the
requirements of the Securities Act and will not 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 light of the circumstances then
existing, not misleading; PROVIDED, HOWEVER, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by a
holder of Registrable Securities or an underwriter expressly for use therein.
(b) Any documents incorporated by reference in any Prospectus
referred to in Section 5(a) hereof, when they become or became effective or are
or were filed with the Commission, as the case may be, will conform or conformed
in all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and none of such documents will contain or
contained an untrue statement of a material fact or will omit or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(c) The compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein contemplated will
not conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any material indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any
subsidiary thereof is a party or by which the Company or any subsidiary thereof
is bound or to which any of the property or assets of the Company or any
subsidiary thereof is subject, nor will such action result in any violation of
the provisions of the Certificate of Incorporation, as amended and restated, or
the By-Laws, as amended, of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any subsidiary thereof or any of their properties; and no
consent, approval, authorization, order, registration or
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qualification of or with any such court or governmental agency or body is
required to be obtained or made by the Company for the consummation by the
Company of the transactions contemplated by this Agreement, except the
registration under the Securities Act of the Registrable Securities and such
consents, approvals, authorizations, registrations or qualifications as may be
required under State securities or "Blue Sky" laws or foreign laws in connection
with the offering and distribution of the Registrable Securities.
(d) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding obligation
of the Company enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights and to
general equity principles and, in the case of Section 6 hereof, public policy.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, and in consideration of the
agreements of the Purchaser contained herein and in the Purchase Agreement, and
as an inducement to the Purchaser to enter into such Agreements, the Company
shall, and it hereby agrees to, indemnify and hold harmless each of the holders
of Registrable Securities to be included in such registration, each underwriter,
selling agent or placement agent with respect to the Registrable Securities and
each of their respective officers, directors, employees and agents and each
person who controls such holder or underwriter, selling agent or placement agent
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (each such person being sometimes referred to as an "Indemnified
Person") against any losses, claims, damages or liabilities, joint or several,
to which such Indemnified Person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
under which such Registrable Securities were registered under the Securities
Act, or any Prospectus contained therein or furnished by the Company to any
Indemnified Person, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged
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omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company shall,
and it hereby agrees to, reimburse such Indemnified Person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such action or claim; PROVIDED, HOWEVER, that the Company shall
not be liable to any such Indemnified Person in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement or Prospectus, or amendment or supplement,
in reliance upon and in conformity with written information furnished to the
Company by or on behalf of a holder of Registrable Securities or an underwriter
expressly for use therein.
(b) INDEMNIFICATION BY THE HOLDERS AND ANY AGENTS AND
UNDERWRITERS. The Company may require, as a condition to including any
Registrable Securities in any Registration Statement filed pursuant to this
Agreement and to entering into any underwriting agreement with respect thereto,
that the Company shall have received an undertaking reasonably satisfactory to
it from the holder of such Registrable Securities and from each underwriter
named in any such underwriting agreement, severally and not jointly, to (i)
indemnify and hold harmless the Company, its directors and officers who sign any
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any losses, claims, damages or liabilities to which the
Company or such other persons may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in such Registration Statement, or
any Prospectus contained therein or furnished by the Company to any such holder
or underwriter, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished in writing
to the Company by or on behalf of such holder or underwriter expressly for use
therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in
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connection with investigating or defending any such action or claim.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of written notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party pursuant to the
indemnification provisions of or contemplated by this Section 6, notify such
indemnifying party in writing of the commencement of such action; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party other than under the
indemnification provisions of or contemplated by Section 6(a) or 6(b) hereof. In
case any such action shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, such indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, such indemnifying party shall not be liable to such indemnified party
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the defense
thereof other than reasonable costs of investigation. 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 (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) 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.
(d) CONTRIBUTION. Each party hereto agrees that, if for any reason
the indemnification provisions contemplated by Section 6(a) or Section 6(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or
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payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the indemnifying party and the indemnified
party in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contribution pursuant to this
Section 6(d) were determined by pro rata allocation (even if the holders or any
agents or underwriters or all of them were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 6(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or 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. The holders'
and any underwriters' obligations in this Section 6(d) to contribute shall be
several in proportion to the percentage of principal amount of Registrable
Securities registered or underwritten, as the case may be, by them and not
joint.
(e) Notwithstanding any other provision of this Section 6, in no
event will any (i) holder be required to undertake liability to any person or
persons under this Section 6 for an aggregate amount in excess of the dollar
amount of the proceeds received by such holder from the sale of such holder's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to such registration or (ii) underwriter be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of
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untrue or alleged untrue statements or omissions or alleged omissions in respect
of such Registrable Securities.
(f) The obligations of an indemnifying party under this Section 6
shall be in addition to any liability which such indemnifying party may
otherwise have to any Indemnified Person, including any liability of the Company
to the Purchaser pursuant to Section 8 of the Purchase Agreement.
In the event that any provision of an indemnification clause in an
underwriting agreement executed by or on behalf of a holder of Registrable
Securities differs from a provision in this Section 6, such provision in the
underwriting agreement shall determine such holder's rights in respect thereof.
7. UNDERWRITTEN OFFERINGS.
(a) SELECTION OF UNDERWRITERS. If any of the Registrable
Securities covered by the Registration Statement are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof shall be
designated by the holders of at least 50% in aggregate principal amount of the
outstanding Registrable Securities to be included in such offering, provided
that such designated managing underwriter or underwriters is or are acceptable
to the Company; PROVIDED that the Purchaser shall be deemed to be acceptable to
the Company as managing underwriter or underwriters for this purpose.
(b) PARTICIPATION BY HOLDERS. Each holder of Registrable
Securities hereby agrees with each other such holder that no such holder may
participate in any underwritten offering hereunder unless such holder (i) agrees
to sell such holder's Registrable Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. RULE 144.
The Company covenants to the holders of Registrable Securities
that to the extent it shall be required to do so under the Exchange Act, the
Company shall timely file the reports required to be filed by it under the
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Exchange Act or the Securities 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 the Rules and Regulations, and
shall 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 limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission. Upon the request of any
holder of Registrable Securities, the Company shall deliver to such holder a
written statement as to whether it has complied with such requirements.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company will not grant
registration rights with respect to Registrable Securities or any other
securities, or enter into any agreement with respect to its securities, which is
inconsistent with the rights granted to the holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof. The Company is
not currently a party to any agreement with respect to any of its equity or debt
securities granting any registration rights to any person.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that
there may be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure, 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 compel
specific performance of the obligations of any other party under this Agreement
in accordance with the terms and conditions of this Agreement, in any court of
the United States or any State thereof having jurisdiction.
(c) NOTICES. All notices, requests, claims, demands, waivers and
other communications hereunder shall be given in the manner provided for in the
Indenture.
(d) PARTIES IN INTEREST. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the respective successors and assigns of the parties hereto. In
the event that any transferee of any holder of Registrable
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Securities shall acquire Registrable Securities, in any manner, whether by gift,
bequest, purchase, operation of law or otherwise, such transferee shall, without
any further writing or action of any kind, be deemed a party hereto for all
purposes and such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities
such transferee 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. If the Company shall so request, any such
successor, assign or transferee shall agree in writing to acquire and hold the
Registrable Securities subject to all of the terms hereof.
(e) SURVIVAL. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this Agreement
or made pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf of
any holder of Registrable Securities, any director, officer or partner of such
holder, any agent or underwriter or any director, officer or partner thereof, or
any controlling person of any of the foregoing, and shall survive delivery of
and payment for the Registrable Securities pursuant to the Purchase Agreement
and the transfer and registration of Registrable Securities by such holder.
(f) LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) HEADINGS. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
(h) AMENDMENTS AND WAIVERS. This Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a written
instrument duly executed by the Company and the holders of at least a majority
of the principal amount of the Registrable Securities at the time outstanding.
Each holder of any Registrable Securities at the time or thereafter outstanding
shall be bound by any amendment or waiver effected pursuant to this Section
9(h), whether or not any notice, writing or marking indicating such amendment or
waiver appears on such Registrable Securities or is delivered to such holder.
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(i) INSPECTION. For so long as this Agreement shall be in effect,
this Agreement and a complete list of the names and addresses of all the holders
of Registrable Securities shall be made available for inspection and copying on
any business day by any holder of Registrable Securities at the offices of the
Company at the address set forth in the Indenture.
(j) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be duly executed as of the date first written above.
THE SPORTS AUTHORITY, INC.
By: /S/ XXXXXXX X. XXXXXXX
------------------------------
Name:
Title:
/S/ XXXXXXX, SACHS & CO.
-------------------------------
(Xxxxxxx, Xxxxx & Co.)
