EXHIBIT 4.3
EXECUTION DRAFT
$125,000,000
THE HOCKEY COMPANY
11 1/4% OF SENIOR SECURED NOTE UNITS DUE 2009
REGISTRATION RIGHTS AGREEMENT
April 3, 2002
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
THE HOCKEY COMPANY, a Delaware corporation (the "COMPANY"), and its
wholly-owned subsidiary SPORT MASKA INC., a New Brunswick corporation ("SPORT
MASKA" and, together with the Company, the "ISSUERS"), are issuing and selling
to ▇▇▇▇▇▇▇▇▇ & Company, Inc. (the "INITIAL PURCHASER"), upon the terms set forth
in the Purchase Agreement, dated March 26, 2002, between the Issuers and the
Initial Purchaser (the "PURCHASE AGREEMENT"), 125,000 Units (each a "UNIT" and,
collectively, the "UNITS"), each Unit consisting of $500 principal amount of 11
1/4% Senior Secured Notes due 2009 issued by the Company (the "PARENT NOTES")
and $500 principal amount of 11 1/4% Senior Secured Notes due 2009 issued by
Sport Maska (the "SUBSIDIARY NOTES"). As an inducement to the Initial Purchaser
to enter into the Purchase Agreement, the Issuers agree with the Initial
Purchaser, for the benefit of the Holders (as defined below) of the Units
(including, without limitation, the Initial Purchaser), as follows:
1. DEFINITIONS
Capitalized terms that are used herein without definition and are defined
in the Purchase Agreement shall have the respective meanings ascribed to them in
the Purchase Agreement. As used in this Agreement, the following terms shall
have the following meanings:
ADDITIONAL INTEREST: See Section 4(a).
ADVICE: See Section 6(v).
AGREEMENT: This Registration Rights Agreement, dated as of the Closing
Date, among the Issuers and the Initial Purchaser.
APPLICABLE PERIOD: See Section 2(e).
BUSINESS DAY: A day that is not a Saturday, a Sunday or a day on which
banking institutions in the City of New York are authorized or required by law
or executive order to be closed.
CLOSING DATE: April 3, 2002.
COLLATERAL AGREEMENTS: Shall have the meaning set forth in the Indenture.
COMPANY: See the introductory paragraph to this Agreement.
DAY: Unless otherwise expressly provided, a calendar day.
EFFECTIVENESS DATE: The 180th day after the Issue Date.
EFFECTIVENESS PERIOD: See Section 3(a).
EVENT DATE: See Section 4(b).
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
EXCHANGE NOTES: The Exchange Parent Notes and Exchange Subsidiary Notes.
EXCHANGE OFFER: See Section 2(a).
EXCHANGE PARENT NOTES: Senior Secured Notes due 2009 of the Company,
identical to the Parent Notes, including the guarantees endorsed thereon, except
for references to series and restrictive legends.
EXCHANGE REGISTRATION STATEMENT: See Section 2(a).
EXCHANGE SUBSIDIARY NOTES: Senior Secured Notes due 2009 of Sport Maska,
identical to the Subsidiary Notes, including the guarantees endorsed thereon,
except for references to series and restrictive legends.
EXCHANGE UNITS: Senior Secured Note Units, each consisting of the $500
principal amount of Exchange Parent Notes and $500 principal amount of Exchange
Subsidiary Notes, identical to the Units, except for references to series and
restrictive legends.
FILING DATE: The 90th day after the Issue Date.
HOLDER: Any registered holder of Registrable Units.
INDEMNIFIED PARTY: See Section 8(c).
INDEMNIFYING PARTY: See Section 8(c).
INDENTURE: The Indenture, dated as of the Closing Date, among the Issuers,
the Subsidiary Guarantors and The Bank of New York, as trustee, pursuant to
which the Units are being issued, as amended or supplemented from time to time
in accordance with the terms hereof.
INITIAL PURCHASER: See the introductory paragraph to this Agreement.
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INITIAL SHELF REGISTRATION: See Section 3(a).
INSPECTORS: See Section 6(o).
ISSUE DATE: March 26, 2002
ISSUERS: See the introductory paragraph to this Agreement.
LOSSES: See Section 8(a).
NASD: National Association of Securities Dealers, Inc.
NOTES: The Parent Notes and Subsidiary Notes.
PARENT NOTES: See the introductory paragraph to this Agreement.
PARTICIPATING BROKER-DEALER: See Section 2(e).
PERSON: An individual, trustee, corporation, partnership, limited liability
company, joint stock company, trust, unincorporated association, union, business
association, firm, government or agency or political subdivision thereof, or
other legal entity.
PRIVATE EXCHANGE: See Section 2(f).
PRIVATE EXCHANGE UNITS: See Section 2(f).
PROSPECTUS: The prospectus included in any 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 promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Units covered by such
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
PURCHASE AGREEMENT: See the introductory paragraph to this Agreement.
RECORDS: See Section 6(o).
REGISTRABLE UNITS: (i) Units, (ii) Exchange Units and (iii) Private
Exchange Units received in the Exchange Offer, in each case, that may not be
sold without restriction under federal or state securities laws.
REGISTRATION STATEMENT: Any registration statement of the Issuers filed
with the SEC under the Securities Act (including, but not limited to, the
Exchange Registration Statement, the Shelf Registration and any subsequent Shelf
Registration) that covers any of the Registrable Units pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits and
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all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
RULE 144: Rule 144 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer or such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
RULE 144A: Rule 144A promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
RULE 415: Rule 415 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
SECURITIES: The Units, the Exchange Units and the Private Exchange Units.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
SHELF NOTICE: See Section 2(j).
SHELF REGISTRATION: See Section 3(b).
SPORT MASKA: See the introductory paragraph to this Agreement.
SUBSEQUENT SHELF REGISTRATION: See Section 3(b).
SUBSIDIARY GUARANTOR: Each subsidiary of the Issuers that guarantees the
obligations of the Issuers under the Notes and Indenture.
SUBSIDIARY NOTES: See the introductory paragraph to this Agreement.
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture and, if existent, the trustee
under any indenture governing the Exchange Units and Private Exchange Units (if
any).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in which
securities of the Issuers are sold to an underwriter for reoffering to the
public.
UNITS: See the introductory paragraph to this Agreement.
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2. EXCHANGE OFFER
(a) The Issuers shall (and shall cause each Subsidiary Guarantor with
respect to its guarantee) to (i) prepare and file with the SEC
promptly after the date hereof, but in no event later than the Filing
Date, a registration statement (the "EXCHANGE REGISTRATION STATEMENT")
on an appropriate form under the Securities Act with respect to an
offer (the "EXCHANGE OFFER") to the Holders of Registrable Units to
issue and deliver to such Holders, in exchange for the Units, a like
number of Exchange Units as substitute evidence of indebtedness
originally evidenced by the Registrable Units, (ii) use their best
efforts to cause the Exchange Registration Statement to be declared
effective by the SEC as promptly as practicable after the filing
thereof, but in no event later than the Effectiveness Date, (iii) keep
the Exchange Registration Statement effective until the consummation
of the Exchange Offer in accordance with its terms, including the
right of the Holders of Registrable Units to exchange their Units for
Exchange Units, and (iv) unless the Exchange Offer would not be
permitted by a policy of the SEC, commence the Exchange Offer and use
their best efforts to issue on or prior to 30 Business Days after the
date on which the Exchange Registration Statement is declared
effective, Exchange Units in exchange for all Units tendered prior
thereto in the Exchange Offer. The Exchange Offer shall not be subject
to any conditions, other than that the Exchange Offer does not violate
applicable law or any applicable interpretation of the staff of the
SEC. Upon consummation of the Exchange Offer in accordance with this
Section 2, the Issuers shall have no further registration obligations
other than with respect to (i) Private Exchange Notes, (ii) Exchange
Notes held by Participating Broker-Dealers and (iii) Notes or Exchange
Notes as to which Section 3 hereof applies.
(b) The Exchange Units shall be issued under, and entitled to the benefits
of, (i) the Indenture or a trust indenture that is identical to the
Indenture (other than such changes as are necessary to comply with any
requirements of the SEC to effect or maintain the qualifications
thereof under the TIA) and (ii) the Collateral Agreements.
(c) Interest on the Exchange Notes will accrue from the last interest
payment due date on which interest was paid on the Notes surrendered
in exchange therefor or, if no interest has been paid on the Notes,
from the date of original issue of the Notes. Each Exchange Note shall
bear interest at the rate set forth thereon; PROVIDED, that interest
with respect to the period prior to the issuance thereof shall accrue
at the rate or rates borne by the Notes from time to time during such
period.
(d) The Issuers may require each Holder as a condition to participation in
the Exchange Offer to represent (i) that any Exchange Units received
by it will be acquired in the ordinary course of its business, (ii)
that at the time of the commencement and consummation of the Exchange
Offer such Holder has not entered into any arrangement or
understanding with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Units in
violation of the provisions of the Securities Act, (iii) that if such
Holder is an
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affiliate of the Issuers within the meaning of the Securities Act, it
will comply with the registration and prospectus delivery requirements
of the Securities Act to the extent applicable to it, (iv) if such
Holder is not a broker-dealer, that it is not engaged in, and does not
intend to engage in, the distribution of the Units and (v) if such
Holder is a Participating Broker-Dealer, that it will deliver a
Prospectus in connection with any resale of the Exchange Units.
(e) The Issuers shall include within the Prospectus contained in the
Exchange Registration Statement a section entitled "Plan of
Distribution," which shall contain a summary statement of the
positions taken or policies made by the staff of the SEC with respect
to the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Units received by such broker-dealer in the Exchange Offer
for its own account in exchange for Units that were acquired by it as
a result of market-making or other trading activity (a "PARTICIPATING
BROKER-DEALER"), whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or policies, in
the judgment of the Initial Purchaser, represent the prevailing views
of the staff of the SEC. Such "Plan of Distribution" section shall
also allow, to the extent permitted by applicable policies and
regulations of the SEC, the use of the Prospectus by all Persons
subject to the prospectus delivery requirements of the Securities Act,
including, to the extent so permitted, all Participating
Broker-Dealers, and include a statement describing the manner in which
Participating Broker-Dealers may resell the Exchange Units. The
Issuers shall use their best efforts to keep the Exchange Registration
Statement effective and to amend and supplement the Prospectus
contained therein, in order to permit such Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such
Persons must comply with such requirements in order to resell the
Exchange Units; PROVIDED, HOWEVER, that (i) in the case where such
Prospectus and any amendment or supplement thereto must be delivered
by a Participating Broker-Dealer or the Initial Purchaser, such period
shall be the lesser of 180 days and the date on which all
Participating Broker-Dealers and the Initial Purchaser have sold all
Exchange Units held by them (unless such period is extended pursuant
to Section 6(k) below) and (ii) the Issuers shall make such Prospectus
and any amendment or supplement thereto, available to any
Participating Broker-Dealer for use in connection with any resale of
any Exchange Units for a period not less than 90 days after the
consummation of the Exchange Offer (the "APPLICABLE PERIOD").
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser
holds any Units acquired by it and having the status of an unsold
allotment in the initial distribution, the Issuers (upon the written
request from the Initial Purchaser) shall, simultaneously with the
delivery of the Exchange Units in the Exchange Offer, issue and
deliver to the Initial Purchaser, in exchange (the "PRIVATE EXCHANGE")
for the Units held by the Initial Purchaser, a number of Senior
Secured Note Units, each consisting of the $500 principal amount of
Exchange Parent Notes and $500 principal amount of Exchange Subsidiary
Notes, that are identical to the
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Exchange Units except for the existence of restrictions on transfer
thereof under the Securities Act and securities laws of the several
states of the United States (the "PRIVATE EXCHANGE UNITS") (and which
are issued pursuant to the same indenture as the Exchange Units). The
Private Exchange Units shall bear the same CUSIP number as the
Exchange Units.
(g) In connection with the Exchange Offer, the Issuers shall:
(i) mail, or cause to be mailed, to each Holder a copy of the
Prospectus forming part of the Exchange Registration Statement,
together with an appropriate letter of transmittal and related
documents;
(ii) utilize the services of a depository for the Exchange Offer
with an address in the Borough of Manhattan, the City of New
York, which may be the Trustee or an affiliate thereof;
(iii) permit Holders to withdraw tendered Registrable Units at any
time prior to the close of business, New York time, on the last
Business Day on which the Exchange Offer shall remain open; and
(iv) otherwise comply in all material respects with all applicable
laws.
(h) As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Issuers shall:
(i) accept for exchange all Registrable Units validly tendered
pursuant to the Exchange Offer or the Private Exchange, as the
case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Units
so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each
Holder tendering such Registrable Units consisting of Exchange
Parent Notes and Exchange Subsidiary Notes, equal in principal
amount to the Parent Notes and Subsidiary Notes of such Holder
so accepted for exchange.
(i) The Exchange Units and the Private Exchange Units may be issued under
(i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture, which in either event will provide that the
Exchange Units will not be subject to the transfer restrictions set
forth in the Indenture, that the Private Exchange Units will be
subject to the transfer restrictions set forth in the Indenture, and
that the Exchange Units, the Private Exchange Units and the Units, if
any, will be deemed one class of security (subject to the provisions
of the Indenture) and entitled to participate in all the security
granted by the Issuers pursuant to the Collateral Agreements and in
any Subsidiary Guarantee (as such terms are defined in the Indenture)
on an equal and ratable basis.
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(j) If, (i) applicable interpretations of the staff of the SEC would not
permit the consummation of the Exchange Offer as contemplated by
Section 2 hereof, (ii) the Exchange Offer is not consummated within 30
Business Days after the Effectiveness Date for any reason, (iii) any
holder of Private Exchange Units so requests in writing to the Issuers
within 45 days after the consummation of the Exchange Offer or (iv) in
the case of any Holder not permitted to participate in the Exchange
Offer or any Holder that participates in the Exchange Offer but does
not receive Exchange Units on the date of the exchange that may be
sold without restriction under state and federal securities laws
(other than due solely to the status of such Holder as an affiliate of
the Issuers within the meaning of the Securities Act) and so notifies
the Issuers within 45 days of consummation of the Exchange Offer, then
the Issuers (and any then existing Subsidiary Guarantor) shall
promptly deliver to the Holders and the Trustee written notice thereof
(the "SHELF NOTICE") and shall file an Initial Shelf Registration
pursuant to Section 3.
3. SHELF REGISTRATION
If a Shelf Notice is delivered pursuant to Section 2(j), then this Section
3 shall apply to all Registrable Units. Otherwise, upon consummation of the
Exchange Offer in accordance with Section 2, the provisions of Section 3 shall
apply solely with respect to (i) Units held by any Holder thereof not permitted
to participate in the Exchange Offer and (ii) Exchange Units that are not freely
tradeable as contemplated by Section 2(j)(iv) hereof, provided in each case that
the relevant Holder has duly notified the Issuers within 45 days of the Exchange
Offer as required by Section 2(j)(iv).
(a) INITIAL SHELF REGISTRATION. The Issuers shall as promptly as
practicable file (and shall cause any then existing Subsidiary
Guarantor to file) with the SEC a Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415
covering all of the Registrable Units (the "INITIAL SHELF
REGISTRATION"). If the Issuers (and any then existing Subsidiary
Guarantor) have not yet filed an Exchange Registration Statement, the
Issuers shall file (and shall cause any then existing Subsidiary
Guarantor to file) with the SEC the Initial Shelf Registration on or
prior to the Filing Date and shall use their best efforts to cause
such Initial Shelf Registration to be declared effective under the
Securities Act on or prior to the Effectiveness Date. Otherwise, the
Issuers shall use their best efforts to file (and shall cause any then
existing Subsidiary Guarantor to file) with the SEC the Initial Shelf
Registration within 30 days of the delivery of the Shelf Notice and
shall use their best efforts to cause such Shelf Registration to be
declared effective under the Securities Act as promptly as practicable
thereafter. The Initial Shelf Registration shall be on Form S-1 or
another appropriate form permitting registration of such Registrable
Units for resale by Holders in the manner or manners reasonably
designated by them (including, without limitation, one or more
underwritten offerings). The Issuers and Subsidiary Guarantors shall
not permit any securities other than the Registrable Units to be
included in any Shelf Registration. No Holder of Registrable Units
shall be entitled to include any of its Registrable Units in any Shelf
Registration pursuant to this Agreement unless such Holder furnishes
to the Issuers and the Trustee in writing, within 20 days
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after receipt of a request therefor, such information as the Issuers
and the Trustee after conferring with counsel with regard to
information relating to Holders that would be required by the SEC to
be included in such Shelf Registration or Prospectus included therein,
may reasonably request for inclusion in any Shelf Registration or
Prospectus included therein. The Issuers shall use their best efforts
to keep the Initial Shelf Registration continuously effective under
the Securities Act until the date which is 24 months from the Closing
Date (the "EFFECTIVENESS PERIOD"), or such shorter period ending when
(i) all Registrable Units covered by the Initial Shelf Registration
have been sold in the manner set forth and as contemplated in the
Initial Shelf Registration or (ii) a Subsequent Shelf Registration
covering all of the Registrable Units covered by and not sold under
the Initial Shelf Registration or an earlier Subsequent Shelf
Registration has been declared effective under the Securities Act.
(b) SUBSEQUENT SHELF REGISTRATIONS. If the Initial Shelf Registration or
any Subsequent Shelf Registration ceases to be effective for any
reason at any time during the Effectiveness Period (other than because
of the sale of all of the securities registered thereunder), the
Issuers shall use their best efforts to obtain the prompt withdrawal
of any order suspending the effectiveness thereof, and in any event
shall within 30 days of such cessation of effectiveness amend such
Shelf Registration in a manner to obtain the withdrawal of the order
suspending the effectiveness thereof, or file (and cause any then
existing Subsidiary Guarantor to file) an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the
Registrable Units covered by and not sold under the Initial Shelf
Registration or an earlier Subsequent Shelf Registration (a
"SUBSEQUENT SHELF REGISTRATION"). If a Subsequent Shelf Registration
is filed, the Issuers shall use their best efforts to cause the
Subsequent Shelf Registration to be declared effective as soon as
practicable after such filing and to keep such Subsequent Shelf
Registration continuously effective for a period equal to the number
of days in the Effectiveness Period less the aggregate number of days
during which the Initial Shelf Registration or any Subsequent Shelf
Registration was previously continuously effective. As used herein the
term "Shelf Registration" means the Initial Shelf Registration and any
Subsequent Shelf Registrations
(c) SUPPLEMENTS AND AMENDMENTS. The Issuers shall promptly supplement and
amend any Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably
requested by the Holders of a majority of the Registrable Units
covered by such Shelf Registration or by any underwriter of such
Registrable Units.
4. ADDITIONAL INTEREST
(a) The Issuers acknowledge and agree that the Holders of Registrable
Units will suffer damages if the Issuers fail to fulfill their
material obligations under Section 2 or Section 3 hereof and that it
would not be feasible to ascertain the extent of such damages with
precision. Accordingly, the Issuers agree to pay additional
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interest on the Notes ("ADDITIONAL INTEREST") under the circumstances
and to the extent set forth below (each of which shall be given
independent effect):
(i) if neither the Exchange Registration Statement nor the Initial
Shelf Registration has been filed on or prior to the Filing
Date, Additional Interest shall accrue on the Notes over and
above any stated interest at a rate of 0.25% per annum of the
principal amount of such Notes for the first 90 days
immediately following the Filing Date, such Additional Interest
rate increasing by an additional 0.25% per annum at the
beginning of each subsequent 90-day period;
(ii) if neither the Exchange Registration Statement nor the Initial
Shelf Registration is declared effective on or prior to the
Effectiveness Date, Additional Interest shall accrue on the
Notes over and above any stated interest at a rate of 0.25% per
annum of the principal amount of such Notes for the first 90
days immediately following the Effectiveness Date, such
Additional Interest rate increasing by an additional 0.25% per
annum at the beginning of each subsequent 90-day period;
(iii) if (A) the Issuers (and any then existing Subsidiary Guarantor)
have not exchanged Exchange Units for all Units validly
tendered in accordance with the terms of the Exchange Offer on
or prior to the 30 Business Days after the Effectiveness Date,
(B) the Exchange Registration Statement ceases to be effective
at any time prior to the time that the Exchange Offer is
consummated, (C) if applicable, a Shelf Registration has been
declared effective and such Shelf Registration ceases to be
effective at any time prior to the second anniversary of its
effective date (other than such time as all Units have been
disposed of thereunder) and is not declared effective again
within 30 days, or (D) pending the announcement of a material
corporate transaction, the Issuers issue a written notice
pursuant to Section 6(e)(v) or (vi) that a Shelf Registration
Statement or Exchange Registration Statement is unusable and
the aggregate number of days in any 365-day period for which
all such notices issued or required to be issued, have been, or
were required to be, in effect exceeds 120 days in the
aggregate or 30 days consecutively, in the case of a Shelf
Registration statement, or 15 days in the aggregate in the case
of an Exchange Registration Statement, then Additional Interest
shall accrue on the Notes, over and above any stated interest,
at a rate of 0.25% per annum of the principal amount of such
Notes commencing on (w) the 31st Business Day after the
Effectiveness Date, in the case of (A) above, or (x) the date
the Exchange Registration Statement ceases to be effective
without being declared effective again within 30 days, in the
case of clause (B) above, or (y) the day such Shelf
Registration ceases to be effective in the case of (C) above,
or (z) the day the Exchange Registration Statement or Shelf
Registration ceases to be usable in case of clause (D) above,
such Additional Interest rate increasing by an additional 0.25%
per annum at the beginning of each such subsequent 90-day
period;
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PROVIDED, HOWEVER, that the maximum Additional Interest rate on
the Notes may not exceed at any one time in the aggregate 1.00%
per annum; and PROVIDED FURTHER, that (1) upon the filing of
the Exchange Registration Statement or Initial Shelf
Registration (in the case of (i) above), (2) upon the
effectiveness of the Exchange Registration Statement or Initial
Shelf Registration (in the case of (ii) above), or (3) upon the
exchange of Exchange Units for all Units tendered (in the case
of (iii)(A) above), or upon the effectiveness of the Exchange
Registration Statement that had ceased to remain effective (in
the case of clause (iii)(B) above), or upon the effectiveness
of a Shelf Registration which had ceased to remain effective
(in the case of (iii)(C) above), Additional Interest on the
Notes as a result of such clause (or the relevant subclause
thereof) or upon the effectiveness of such Registration
Statement or Exchange Registration Statement (in the case of
clause (iii)(D) above), as the case may be, shall cease to
accrue.
(b) The Issuers shall notify the Trustee within 3 Business Days after each
and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "EVENT DATE"). Any amounts of
Additional Interest due pursuant to clause (a)(i), (a)(ii) or (a)(iii)
of this Section 4 will be payable in cash, on the dates and in the
manner provided in the Indenture and whether or not any cash interest
would then be payable on such date, commencing with the first such
semi-annual date occurring after any such Additional Interest
commences to accrue. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest rate by
the principal amount of the Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate
was applicable during such period (determined on the basis of a
360-day year comprised of twelve 30-day months and, in the case of a
partial month, the actual number of days elapsed), and the denominator
of which is 360.
5. HOLD-BACK AGREEMENTS
The Issuers agree that they will not effect any public or private sale or
distribution (including a sale pursuant to Regulation D under the Securities
Act) of any securities the same as or similar to those covered by a Registration
Statement filed pursuant to Section 2 or 3 hereof (other than Additional Units
(as defined in the Indenture) issued under the Indenture), or any securities
convertible into or exchangeable or exercisable for such securities, during the
10 days prior to, and during the 90-day period beginning on, the effective date
of any Registration Statement filed pursuant to Sections 2 and 3 hereof unless
the Holders of a majority of the Registrable Units to be included in such
Registration Statement consent.
6. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement pursuant to
Section 2 or 3 hereof, the Issuers shall effect such registrations to permit the
sale of such securities covered thereby in accordance with the intended method
or methods of disposition thereof, and pursuant thereto and in connection with
any Registration Statement filed by the Issuers hereunder, the Issuers shall:
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(a) Prepare and file with the SEC as soon as practicable after the date
hereof but in any event on or prior to the Filing Date, the Exchange
Registration Statement or if the Exchange Registration Statement is
not filed because of the circumstances contemplated by Section
2(j)(ii), a Shelf Registration as prescribed by Section 3, and use
their best efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; PROVIDED that, if
(1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange
Units during the Applicable Period relating thereto, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto the Issuers shall, if requested, furnish to and afford the
Holders of the Registrable Units to be registered pursuant to such
Shelf Registration Statement, or each Participating Broker-Dealer and
to their counsel and the managing underwriters, if any, a reasonable
opportunity to review copies of all such documents (including copies
of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed (in each case at least 5
Business Days prior to such filing). The Issuers shall not file any
such Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders must provide
information for the inclusion therein without the Holders being
afforded an opportunity to review such documentation if the holders of
a majority of the Registrable Units covered by such Registration
Statement, or any such Participating Broker-Dealer, as the case may
be, their counsel, or the managing underwriters, if any, shall
reasonably object in writing on a timely basis.
(b) Provide an indenture trustee for the Registrable Units, the Exchange
Units or the Private Exchange Units, as the case may be, and cause the
Indenture (or other indenture relating to the Registrable Units) to be
qualified under the TIA not later than the effective date of the first
Registration Statement; and in connection therewith, cooperate with
the trustee under any indenture and the Holders of the Registrable
Units to effect such changes to such indenture as may be required for
such indenture to be so qualified in accordance with the terms of the
TIA; and execute, and use their best efforts to cause such trustee to
execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the SEC to
enable such indenture to be so qualified in a timely manner.
(c) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration or Exchange Registration
Statement, as the case may be, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness
Period or the Applicable Period, as the case may because the related
Prospectus to be supplemented by any Prospectus supplement required by
applicable law, and as so supplemented to be filed pursuant to Rule
424 (or any similar provisions then in force) promulgated under the
Securities Act; and comply with the provisions of the Securities Act
and the Exchange Act applicable to them with respect to the
disposition of all securities covered by such
12
Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any
securities being sold by a Participating Broker-Dealer covered by any
such Prospectus. The Issuers shall not, during the Applicable Period,
voluntarily take any action that would result in selling Holders of
the Registrable Units covered by a Registration Statement or
Participating Broker-Dealers seeking to sell Exchange Units not being
able to sell such Registrable Units or such Exchange Units during that
period, unless such action is required by applicable law, rule or
regulation or permitted by this Agreement.
(d) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange
Units during the Applicable Period relating thereto, furnish to such
selling Holders and Participating Broker-Dealers who so request in
writing (i) one conformed copy of such Registration Statement and of
each amendment and supplement thereto (in each case including any
documents incorporated therein by reference and all exhibits), (ii)
one conformed copy of the Prospectus included in such Registration
Statement (including each preliminary Prospectus) and each amendment
or supplement thereto, and such reasonable number of copies of the
final Prospectus as filed by the Issuers pursuant to Rule 424(b) under
the Securities Act, in conformity with the requirements of the
Securities Act and each amendment or supplement thereto, and (iii)
such other documents incorporated by reference in the Prospectus
(including any amendments required to be filed pursuant to clause (c)
of this Section), as any such Person may reasonably request. Subject
to Section 6(v), the Issuers hereby consent to the use of the
Prospectus by each of the selling Holders of Registrable Units or each
such Participating Broker-Dealer, as the case may be, and the
underwriters or agents, if any, and dealers, if any, in connection
with the offering and sale of the Registrable Units covered by, or the
sale by Participating Broker-Dealers of the Exchange Units pursuant
to, such Prospectus and any amendment thereto.
(e) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange
Units during the Applicable Period relating thereto. The Issuers shall
notify in writing the selling Holders of Registrable Units, or each
such Participating Broker-Dealer, as the case may be, their counsel
and the managing underwriters, if any, promptly (but in any event
within 2 Business Days) (i) when a Prospectus or any prospectus
supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment,
when the same has become effective (including in such notice a written
statement that any Holder may, upon request, obtain, without charge,
one conformed copy of such Registration Statement or post-effective
amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits),
(ii) of the
13
issuance by the SEC of any stop order suspending the effectiveness of
a Registration Statement or of any order preventing or suspending the
use of any Prospectus or the initiation of any proceedings for that
purpose, (iii) if at any time when a Prospectus is required by the
Securities Act to be delivered in connection with sales of the
Registrable Units the representations and warranties of the Issuers
contained in any agreement (including any underwriting agreement)
contemplated by Section 6(n) hereof cease to be true and correct, (iv)
of the receipt by the Issuers of any notification with respect to the
suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Units or the Exchange
Units to be sold by any Participating Broker-Dealer for offer or sale
in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, (v) of the happening of any event, the
existence of any condition of any information becoming known that
makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires
the making of any changes in, or amendments or supplements to, such
Registration Statement, Prospectus or documents so that, in the case
of the Registration Statement and the Prospectus, it will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading and (vi) of any reasonable determination by the Issuers
that a post-effective amendment to a Registration Statement would be
appropriate.
(f) If (A) a Shelf Registration is filed pursuant to Section 3 or (B) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange
Units during the Applicable Period, use their best efforts to prevent
the issuance of any order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the
use of a Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Units or the Exchange Units
to be sold by any Participating Broker-Dealer, for sale in any
jurisdiction, and, if any such order is issued, to use their best
efforts to obtain the withdrawal of any such order at the earliest
possible date.
(g) If (A) a Shelf Registration is filed pursuant to Section 3 or (B) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange
Units during the Applicable Period or (C) reasonably requested in
writing by the managing underwriters, if any, or the Holders of a
majority of the Registrable Units being sold in connection with an
underwritten offering, (i) promptly incorporate in a prospectus
supplement or post-effective amendment such information or revisions
to information therein relating to such underwriters or selling
Holders as the managing underwriters, if any, or such Holders or their
counsel reasonably request to be included or made therein and (ii)
make all required filings of such prospectus supplement or such
14
post-effective amendment as soon as practicable after the Issuers have
received notification of the matters to be incorporated in such
prospectus supplements or post-effective amendment.
(h) Prior to any public offering of Registrable Units or any delivery of a
Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Units during
the Applicable Period, use their best efforts to register or qualify,
and to cooperate with the selling Holders of Registrable Units or each
such Participating Broker-Dealer, as the case may be, the
underwriters, if any, and their respective counsel in connection with
the registration or qualification (or exemption from such registration
or qualification) of such Registrable Units or Exchange Units, as the
case may be, for offer and sale under the securities or Blue Sky laws
of such jurisdictions within the United States as any selling Holder,
Participating Broker-Dealer or any managing underwriter or
underwriters, if any, reasonably request in writing; PROVIDED that
where Exchange Units held by Participating Broker-Dealers or
Registrable Units are offered other than through an underwritten
offering, the Issuers agree to cause their counsel to perform Blue Sky
investigations and file any registrations and qualifications required
to be filed pursuant to this Section 6(h), keep each such registration
or qualification (or exemption therefrom) effective during the period
such Registration Statement is required to be kept effective and do
any and all other acts or things reasonably necessary or advisable to
enable the disposition in such jurisdictions of the Exchange Units
held by Participating Broker-Dealers or the Registrable Units covered
by the applicable Registration Statement; PROVIDED that neither the
Issuers nor any existing Subsidiary Guarantor shall be required to (A)
qualify generally to do business in any jurisdiction where it is not
then so qualified, (B) take any action that would subject it to
general service of process in any such jurisdiction where it is not
then so subject or (C) subject itself to taxation in any such
jurisdiction where it is not then so subject.
(i) If (A) a Shelf Registration is filed pursuant to Section 3 or (B) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is requested to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Units during the Applicable Period, cooperate with the
selling Holders of Registrable Units and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Units to be sold,
which certificates shall not bear any restrictive legends and shall be
in a form eligible for deposit with The Depository Trust Company, and
enable such Registrable Units to be in such denominations and
registered in such names as the managing underwriter or underwriters,
if any, or Holders may reasonably request in writing.
(j) Use their best efforts to cause the Registrable Units covered by any
Registration Statement to be registered with or approved by such
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriter, if any, to consummate
the disposition of such Registrable Units, except as may be required
solely as a consequence of the nature of such selling
15
Holder's business, in which case the Issuers will cooperate in all
reasonable respects with the filing of such Registration Statement and
the granting of such approvals; PROVIDED that neither the Issuers nor
any existing Subsidiary Guarantor shall be required to (A) qualify
generally to do business in any jurisdiction where it is not then so
qualified, (B) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so
subject or (C) subject itself to taxation in any such jurisdiction
where it is not then so subject.
(k) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange
Units during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 6(e)(v) or 6(e)(vi) hereof, as promptly as
practicable, prepare and file with the SEC, at the expense of the
Issuers, a supplement or post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or
file any other required document so that, as thereafter delivered to
the purchasers of the Registrable Units being sold thereunder or to
the purchasers of the Exchange Units to whom such Prospectus will be
delivered by a Participating Broker-Dealer, such Prospectus 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 under which they
were made, not misleading. Notwithstanding the foregoing, the Issuer
shall not be required to amend or supplement a Registration Statement,
any related Prospectus or any document incorporated therein by
reference, in the event that, and for a period not to exceed an
aggregate of 75 days in any calendar year if, (i) an event occurs and
is continuing as a result of which a Shelf Registration would, in the
Issuer's good faith judgment, contain 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, and (ii) (a) the Issuer
determines in its good faith judgment that the disclosure of such
event at such time would have a material adverse effect on the
business, operations or prospects of the Issuer or (b) the disclosure
otherwise relates to a pending material business transaction that has
not yet been publicly disclosed.
(l) Use their best efforts to cause the Registrable Units covered by a
Registration Statement to be rated with such appropriate rating
agencies, if so requested by the Holders of a majority of the
Registrable Units covered by such Registration Statement or the
managing underwriter or underwriters, if any.
(m) Prior to the initial issuance of the Exchange Units, (i) provide the
Trustee with one or more certificates for the Registrable Units in a
form eligible for deposit with The Depository Trust Company and (ii)
provide a CUSIP number for the Exchange Units.
16
(n) If a Shelf Registration is filed pursuant to Section 3, enter into
such agreements (including an underwriting agreement in form, scope
and substance as is customary in underwritten offerings of debt
securities similar to the Units, as may be appropriate in the
circumstances) and take all such other actions in connection therewith
(including those reasonably requested in writing by the managing
underwriters, if any, or the Holders of a majority of the Registrable
Units being sold) in order to expedite or facilitate the registration
or the disposition of such Registrable Units, and in such connection,
whether or not an underwriting agreement is entered into and whether
or not the registration is an Underwritten Registration, (i) make such
representations and warranties to the Holders and the underwriters, if
any, with respect to the business of the Issuers and their
subsidiaries as then conducted, and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Units, as may
be appropriate in the circumstances, and confirm the same if and when
reasonably required; (ii) obtain opinions of counsel to the Issuers
and updates thereof (which opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any,
and the Holders of a majority of the Registrable Units being sold),
addressed to each selling Holder and each of the underwriters, if any,
covering the matters customarily covered in opinions of counsel to the
Issuers requested in underwritten offerings of debt securities similar
to the Units, as may be appropriate in the circumstances; (iii) obtain
"cold comfort" letters and updates thereof (which letters and updates
from the independent auditors of the Issuers (and, if necessary, any
other independent certified public accountants of any subsidiary of
the Issuers or of any business acquired by the Issuers for which
financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings of debt securities similar to
the Units, as may be appropriate in the circumstances, and such other
matters as reasonably requested by the underwriters; and (iv) deliver
such documents and certificates as may be reasonably requested in
writing by the Holders of a majority of the Registrable Units being
sold and the managing underwriters, if any, to evidence the continued
validity of the representations and warranties of the Issuers and
their subsidiaries made pursuant to clause (i) above and to evidence
compliance with any conditions contained in the underwriting agreement
or other similar agreement entered into by the Issuers.
(o) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange
Units during the Applicable Period, make available for inspection by
any selling Holder of such Registrable Units being sold, or each such
Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Units, if any,
and
17
any attorney, accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer, as the case may be,
or underwriter (collectively, the "INSPECTORS"), at the offices where
normally kept, during reasonable business hours, all financial and
other records and pertinent corporate documents of the Issuers and
their subsidiaries (collectively, the "RECORDS") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and
employees of the Issuers and their subsidiaries to supply all
information reasonably requested in writing by any such Inspector in
connection with such Registration Statement. Each Inspector shall
agree in writing that it will keep the Records confidential and not
disclose any of the Records unless (i) the disclosure of such Records
is necessary to avoid or correct a misstatement or omission in such
Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction, (iii) the information in such Records is public or has
been made generally available to the public other than as a result of
a disclosure or failure to safeguard by such Inspector or (iv)
disclosure of such information is, in the reasonable written opinion
of counsel for any Inspector, necessary or advisable in connection
with any action, claim, suit or proceeding, directly or indirectly,
involving or potentially involving such Inspector and arising out of,
based upon, related to, or involving this Agreement, or any
transaction contemplated hereby or arising hereunder. Each selling
Holder of such Registrable Units and each such Participating
Broker-Dealer will be required to agree that information obtained by
it as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in
the securities of the Issuers unless and until such is made generally
available to the public. Each Inspector, each selling Holder of such
Registrable Units and each such Participating Broker-Dealer will be
required to further agree that it will, upon learning that disclosure
of such Records is sought in a court of competent jurisdiction, give
notice to the Issuers and, to the extent practicable, use their best
efforts to allow the Issuers, at their expense, to undertake
appropriate action to prevent disclosure of the Records deemed
confidential at their expense.
(p) Comply with all applicable rules and regulations of the SEC and make
generally available to the security holders of the Issuers with regard
to any Applicable Registration Statement earning statements satisfying
the provisions of section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year)
(i) commencing at the end of any fiscal quarter in which Registrable
Units are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of
the Issuers after the effective date of a Registration Statement,
which statements shall cover said 12-month periods.
18
(q) Upon consummation of an Exchange Offer or Private Exchange, obtain an
opinion of counsel to the Issuers (in form, scope and substance
reasonably satisfactory to the Purchaser), addressed to the Trustee
for the benefit of all Holders participating in the Exchange Offer or
Private Exchange, as the case may be, to the effect that (i) the
Issuers and the existing Subsidiary Guarantors have duly authorized,
executed and delivered the Exchange Units or the Private Exchange
Units, as the case may be, and the Indenture, (ii) the Exchange Units
or the Private Exchange Units, as the case may be, and the Indenture
constitute legal, valid and binding obligations of the Issuers and the
existing Subsidiary Guarantors, enforceable against the Issuers and
the existing Subsidiary Guarantors in accordance with their respective
terms, except as such enforcement may be subject to customary United
States and foreign exceptions and (iii) all obligations of the Issuers
and the existing Subsidiary Guarantors under the Exchange Units or the
Private Exchange Units, as the case may be, and the Indenture are
secured by Liens on the assets securing the obligations of the Issuers
under the Units, Indenture and Collateral Agreements to the extent and
as discussed in the Registration Statement.
(r) If the Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Registrable Units by the Holders to the Issuers (or to
such other Person as directed by the Issuers) in exchange for the
Exchange Units or the Private Exchange Units, as the case may be, the
Issuers shall mark, or caused to be marked, on such Registrable Units
that the Exchange Units or the Private Exchange Units, as the case may
be, are being issued as substitute evidence of the indebtedness
originally evidenced by the Registrable Units; PROVIDED that in no
event shall such Registrable Units be marked as paid or otherwise
satisfied.
(s) Cooperate with each seller of Registrable Units covered by any
Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Units and their respective counsel
in connection with any filings required to be made with the NASD.
(t) Use their best efforts to take all other steps reasonably necessary to
effect the registration of the Registrable Units covered by a
Registration Statement contemplated hereby.
(u) The Issuers may require each seller of Registrable Units or
Participating Broker-Dealer as to which any registration is being
effected to furnish to the Issuers such information regarding such
seller or Participating Broker-Dealer and the distribution of such
Registrable Units as the Issuers may, from time to time, reasonably
request. The Issuers may exclude from such registration the
Registrable Units of any seller who fails to furnish such information
within a reasonable time (which time in no event shall exceed 45 days)
after receiving such request. Each seller of Registrable Units or
Participating Broker-Dealer as to which any registration is being
effected agrees to furnish promptly to the Issuer all information
required to be disclosed in order to make the information previously
furnished by such Seller not materially misleading.
19
(v) Each Holder of Registrable Units and each Participating Broker-Dealer
agrees by acquisition of such Registrable Units or Exchange Units to
be sold by such Participating Broker-Dealer, as the case may be, that,
upon receipt of any notice from the Issuers of the happening of any
event of the kind described in Section 6(e)(ii), 6(e)(iv), 6(e)(v), or
6(e)(vi), such Holder will forthwith discontinue disposition of such
Registrable Units covered by a Registration Statement and such
Participating Broker-Dealer will forthwith discontinue disposition of
such Exchange Units pursuant to any Prospectus and, in each case,
forthwith discontinue dissemination of such Prospectus until such
Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(k), or
until it is advised in writing (the "ADVICE") by the Issuers that the
use of the applicable Prospectus may be resumed, and has received
copies of any amendments or supplements thereto and, if so directed by
the Issuers, such Holder or Participating Broker-Dealer, as the case
may be, will deliver to the Issuers all copies, other than permanent
file copies, then in such ▇▇▇▇▇▇'s or Participating Broker-Dealer's
possession, of the Prospectus covering such Registrable Units current
at the time of the receipt of such notice. In the event the Issuers
shall give any such notice, the Applicable Period shall be extended by
the number of days during such periods from and including the date of
the giving of such notice to and including the date when each
Participating Broker-Dealer shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 6(k) or (y)
the Advice.
7. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers shall be borne by the Issuers,
whether or not the Exchange Offer or a Shelf Registration is filed or
becomes effective, including, without limitation, (i) all registration
and filing fees, including, without limitation, (A) fees with respect
to filings required to be made with the NASD in connection with any
underwritten offering and (B) fees and expenses of compliance with
state securities or Blue Sky laws as provided in Section 6(h) hereof,
(ii) printing expenses, including, without limitation, expenses of
printing Prospectuses if the printing of Prospectuses is requested by
the managing underwriter or underwriters, if any, or by the Holders of
a majority of the Registrable Units included in any Registration
Statement or by any Participating Broker-Dealer during the Applicable
Period, as the case may be, (iii) messenger, telephone and delivery
expenses incurred in connection with the performance of their
obligations hereunder, (iv) fees and disbursements of counsel for the
Issuers, (v) fees and disbursements of all independent auditors
referred to in Section 6 (including, without limitation, the expenses
of any special audit and "cold comfort" letters required by or
incident to such performance), (vi) rating agency fees, (vii)
Securities Act liability insurance, if the Issuers desire such
insurance, (viii) fees and expenses of all other Persons retained by
the Issuers, (ix) internal expenses of the Issuers (including, without
limitation, all salaries and expenses of officers and employees of the
Issuers performing legal or accounting duties), (x) the expense of any
annual audit, (xi) the fees and expenses of the Trustee and the
20
Exchange Agent and (xii) the expenses relating to printing, word
processing and distributing all Registration Statements, underwriting
agreements, securities sales agreements, indentures and any other
documents necessary in order to comply with this Agreement.
(b) The Issuers shall reimburse the Holders for the reasonable fees and
disbursements of not more than one counsel chosen by the Holders of a
majority of the Registrable Units to be included in any Registration
Statement. The Issuers shall pay all documentary, stamp, transfer or
other issue taxes attributable to the issuance or delivery of the
Exchange Units or Private Exchange Units in exchange for the Units;
PROVIDED that the Issuers shall not be required to pay taxes payable
in respect of any transfer involved in the issuance or delivery of any
Exchange Unit or Private Exchange Unit in a name other than that of
the Holder of the Unit in respect of which such Exchange Unit or
Private Exchange Unit is being issued. The Issuers shall reimburse the
Holders for fees and expenses (including reasonable fees and expenses
of counsel to the Holders) relating to any enforcement of any rights
of the Holders under this Agreement.
8. INDEMNIFICATION
(a) INDEMNIFICATION BY THE ISSUERS. The Issuers shall (and shall cause
each Subsidiary Guarantor, jointly and severally, to), without
limitation as to time, indemnify and hold harmless each Holder of
Registrable Units, Exchange Units or Private Exchange Units and each
Participating Broker-Dealer selling Exchange Units during the
Applicable Period, each Person, if any, who controls each such Holder
(within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act) and the officers, directors and partners of
each such Holder, Participating Broker-Dealer and controlling person,
to the fullest extent lawful, from and against any and all losses,
claims, damages, liabilities, costs (including, without limitation,
reasonable costs of preparation and reasonable attorneys' fees as
provided in this Section 8) and expenses (including, without
limitation, reasonable costs and expenses incurred in connection with
investigating, preparing, pursuing or defending against any of the
foregoing) (collectively, "LOSSES"), as incurred, directly or
indirectly caused by, related to, based upon, arising out of or in
connection with any untrue or alleged untrue statement of a material
fact contained in any Registration Statement, Prospectus or form of
prospectus, or in any amendment or supplement thereto, or in any
preliminary prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading, except insofar as such Losses are
solely based upon information relating to such Holder or Participating
Broker-Dealer and furnished in writing to the Issuers (or reviewed and
approved in writing) by such Holder or Participating Broker-Dealer or
their counsel expressly for use therein; PROVIDED, HOWEVER, that the
Issuers will not be liable to any Indemnified Party (as defined below)
under this Section 8 to the extent Losses were solely caused by an
untrue statement or omission or alleged untrue statement or omission
that was contained or made in any preliminary
21
prospectus and corrected in the Prospectus or any amendment or
supplement thereto if (i) the Prospectus does not contain any other
untrue statement or omission or alleged untrue statement or omission
of a material fact that was the subject matter of the related
proceeding, (ii) any such Losses resulted from an action, claim or
suit by any Person who purchased Registrable Units or Exchange Units
which are the subject thereof from such Indemnified Party and (iii) it
is established in the related proceeding that such Indemnified Party
failed to deliver or provide a copy of the Prospectus (as amended or
supplemented) to such Person with or prior to the confirmation of the
sale of such Registrable Units or Exchange Units sold to such Person
if required by applicable law, unless such failure to deliver or
provide a copy of the Prospectus (as amended or supplemented) was a
result of noncompliance by the Issuers with Section 6 of this
Agreement. The Issuers shall also indemnify underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, their officers, directors, agents
and employees and each Person who controls such Persons (within the
meaning of Section 5 of the Securities Act or Section 20(a) of the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders or the Participating Broker-Dealer.
(b) INDEMNIFICATION BY HOLDER. In connection with any Registration
Statement, Prospectus or form of prospectus, any amendment or
supplement thereto, or any preliminary prospectus in which a Holder is
participating, such Holder shall furnish to the Issuers in writing
such information as the Issuers reasonably request for use in
connection with any Registration Statement, Prospectus or form of
prospectus, any amendment or supplement thereto, or any preliminary
prospectus and shall, without limitation as to time, indemnify and
hold harmless the Issuers, their directors and each Person, if any,
who controls the Issuers (within the meaning of Section 15 of the
Securities Act and Section 20(a) of the Exchange Act), and the
directors, officers and partners of such controlling persons, to the
fullest extent lawful, from and against all Losses arising out of or
based upon any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or form of
prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading to the extent, but only to the
extent, that such losses are finally judicially determined by a court
of competent jurisdiction in a final, unappealable order to have
resulted solely from an untrue statement or alleged untrue statement
of a material fact or omission or alleged omission of a material fact
contained in or omitted from any information so furnished in writing
by such Holder to the Issuers expressly for use therein.
Notwithstanding the foregoing, in no event shall the liability of any
selling Holder be greater in amount than the dollar amount of the
proceeds (net of payment of all expenses) received by such Holder upon
the sale of the Registrable Units giving rise to such indemnification
obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any proceeding shall be
brought or asserted against any Person entitled to indemnity hereunder
(an "INDEMNIFIED
22
PARTY"), such Indemnified Party shall promptly notify the party or
parties from which such indemnity is sought (the "INDEMNIFYING PARTY"
or "INDEMNIFYING PARTIES", as applicable) in writing; PROVIDED, that
the failure to so notify the Indemnifying Parties shall not relieve
the Indemnifying Parties from any obligation or liability except to
the extent (but only to the extent) that it shall be finally
determined by a court of competent jurisdiction (which determination
is not subject to appeal) that the Indemnifying Parties have been
prejudiced materially by such failure.
The Indemnifying Party shall have the right, exercisable by giving written
notice to an Indemnified Party, within 20 Business Days after receipt of written
notice from such Indemnified Party of such proceeding, to assume, at its
expense, the defense of any such proceeding, PROVIDED, that an Indemnified Party
shall have the right to employ separate counsel in any such proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party or parties unless: (1) the
Indemnifying Party has agreed to pay such fees and expenses; or (2) the
Indemnifying Party shall have failed promptly to assume the defense of such
proceeding or shall have failed to employ counsel reasonably satisfactory to
such Indemnified Party; or (3) the named parties to any such proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party or any of its affiliates or controlling persons, and such
Indemnified Party shall have been advised by counsel that there may be one or
more defenses available to such Indemnified Party that are in addition to, or in
conflict with, those defenses available to the Indemnifying Party or such
affiliate or controlling person (in which case, if such Indemnified Party
notifies the Indemnifying Parties in writing that it elects to employ separate
counsel at the expense of the Indemnifying Parties, the Indemnifying Parties
shall not have the right to assume the defense and the reasonable fees and
expenses of such counsel shall be at the expense of the Indemnifying Party; it
being understood, however, that, the Indemnifying Party shall not, in connection
with any one such proceeding or separate but substantially similar or related
proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for such Indemnified Party).
No Indemnifying Party shall be liable for any settlement of any such
proceeding effected without its written consent, which shall not be unreasonably
withheld, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such proceeding, each Indemnifying Party
jointly and severally agrees, subject to the exceptions and limitations set
forth above, to indemnify and hold harmless each Indemnified Party from and
against any and all Losses by reason of such settlement or judgment. The
Indemnifying Party shall not consent to the entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to each Indemnified Party of a release, in form and
substance reasonably satisfactory to the Indemnified Party, from all liability
in respect of such proceeding for which such Indemnified Party would be entitled
to indemnification hereunder (whether or not any Indemnified Party is a party
thereto).
(d) CONTRIBUTION. If the indemnification provided for in this Section 8 is
unavailable to an Indemnified Party or is insufficient to hold such
Indemnified Party harmless for any Losses in respect of which this
Section 8 would otherwise apply by its
23
terms (other than by reason of exceptions provided in this Section 8),
then each applicable Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall have a joint and several obligation to
contribute to the amount paid or payable by such Indemnified Party as
a result of such Losses, in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party, on the one hand,
and such Indemnified Party, on the other hand, in connection with the
actions, statements or omissions that resulted in such Losses as well
as any other relevant equitable considerations. The relative fault of
such Indemnifying Party, on the one hand, and Indemnified Party, on
the other hand, shall be determined by reference to, among other
things, whether any 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 Indemnified
Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent any such statement
or omission. The amount paid or payable by an Indemnified Party as a
result of any Losses shall be deemed to include any legal or other
fees or expenses incurred by such party in connection with any
proceeding, to the extent such party would have been indemnified for
such fees or expenses if the indemnification provided for in Section
8(a) or 8(b) was available to such party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), a selling Holder shall not
be required to contribute, in the aggregate, any amount in excess of such
Holder's Maximum Contribution Amount. A selling Holder's "MAXIMUM CONTRIBUTION
AMOUNT" shall equal the excess of (i) the aggregate proceeds received by such
Holder pursuant to the sale of such Registrable Units or Exchange Units over
(ii) the aggregate amount of damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution agreements contained in this Section 8 are
in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
9. RULES 144 AND 144A
The Issuers covenant that they shall (a) file the reports required to be
filed by them (if so required) under the Securities Act and the Exchange Act in
a timely manner and, if at any time the Issuers are not required to file such
reports, they will, upon the request of any Holder of Registrable Units, make
publicly available other information necessary to permit sales pursuant to Rule
144 and 144A and (b) take such further action as any Holder may reasonably
request in writing, all to the extent required from time to time to enable such
Holder to sell Registrable Units without registration under the Securities Act
pursuant to the exemptions provided by Rule 144 and Rule 144A. Upon the request
of any Holder, the Issuers shall deliver to such Holder a written statement as
to whether they have complied with such information and requirements.
24
10. UNDERWRITTEN REGISTRATIONS OF REGISTRABLE UNITS
If any of the Registrable Units covered by any Shelf Registration is to be
sold in an underwritten offering, the investment banker or investment bankers
and manager or managers that will manage the offering will be selected by the
Holders of a majority of such Registrable Units included in such offering;
PROVIDED, HOWEVER, that such investment banker or investment bankers and manager
or managers must be reasonably acceptable to the Issuers.
No Holder of Registrable Units may participate in any underwritten
registration hereunder unless such ▇▇▇▇▇▇ (a) agrees to sell such ▇▇▇▇▇▇'s
Registrable Units on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
11. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. The Issuers have not entered, as of the
date hereof, and the Issuers shall not enter, after the date of this
Agreement, into any agreement with respect to any of their securities
that is inconsistent with the rights granted to the Holders of
Securities in this Agreement or otherwise conflicts with the
provisions hereof. The Issuers have not entered and will not enter
into any agreement with respect to any of their securities that will
grant to any Person piggy-back rights with respect to a Registration
Statement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE UNITS. The Issuers shall not,
directly or indirectly, take any action with respect to the
Registrable Units as a class that would adversely affect the ability
of the Holders to include such Registrable Units in a registration
undertaken pursuant to this Agreement.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than
with the prior written consent of in circumstances that would
adversely affect any Holders of Registrable Units, the Holders of not
less than a majority of the then outstanding Registrable Units
PROVIDED, HOWEVER, that Section 8 and this Section 11(c) may not be
amended, modified or supplemented without the prior written consent of
each Holder. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable Units
whose securities are being tendered pursuant to the Exchange Offer or
sold pursuant to a Registration Statement and that does not directly
or indirectly affect, impair, limit or compromise the rights of other
Holders of Registrable Units may be given by Holders of at least a
majority of the Registrable Units being tendered or being sold by such
Holders pursuant to such Registration Statement.
25
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, next-day air courier or telecopier:
(i) if to a Holder of Securities or to any Participating
Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on
the records of the registrar of the Units, with a copy in like
manner to the Initial Purchaser as follows:
▇▇▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Mayer, Brown, ▇▇▇▇ & Maw
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(ii) if to the Initial Purchaser, at the address specified in
Section 12(d)(1);
(iii) if to the Issuers, as follows:
The Hockey Company
3500 Boul. de ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the United States mail, postage prepaid, if mailed, one
business day after being deposited in the United States mail, postage prepaid,
if mailed; one business day after being timely delivered to a next-day air
courier guaranteeing overnight delivery; and when receipt is acknowledged by the
addressee, if telecopied.
26
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties
hereto, including, without limitation and without the need for an
express assignment, subsequent Holders of Securities.
(f) 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.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAW. THE ISSUERS HEREBY IRREVOCABLY SUBMIT
TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH
OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND IRREVOCABLY ACCEPT FOR THEIR AND IN RESPECT OF THEIR
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. THE ISSUERS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THEY MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY
OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND
ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE ISSUERS
IRREVOCABLY CONSENT, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
THE ISSUERS AT THEIR SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30
DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY
HOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE ISSUERS IN
ANY OTHER JURISDICTION.
27
(i) SERVICE OF PROCESS. Sport Maska has, by a separate written instrument,
irrevocably appointed CT Corporation System, as its authorized agent
in the Borough of Manhattan in The City of New York upon which process
may be served in any such suit or proceeding, and agrees that service
of process upon such agent, and written notice of said service to
Sport Maska, by the person serving the same to the address provided in
Section 11(d), shall be deemed in every respect effect service of
process upon Sport Maska in any such suit or proceeding. Sport Maska
further agrees to take any and all action as may be necessary to
maintain such designation and appointment of such agent in full force
and effect for a period of seven years from the date of this
Agreement.
(j) SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
(k) SECURITIES HELD BY THE ISSUERS OR THEIR AFFILIATES. Whenever the
consent or approval of Holders of a specified percentage of Securities
is required hereunder, Securities held by the Issuers or their
affiliates (as such term is defined in Rule 405 under the Securities
Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(l) THIRD PARTY BENEFICIARIES. Holders and Participating Broker-Dealers
are intended third party beneficiaries of this Agreement and this
Agreement may be enforced by such Persons.
(m) ENTIRE AGREEMENT. This Agreement, together with the Purchase
Agreement, the Indenture and the Collateral Agreements, is intended by
the parties as a final and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter
contained herein and therein and any and all prior oral or written
agreements, representations, or warranties, contracts, understanding,
correspondence, conversations and memoranda between the Initial
Purchaser on the one hand and the Issuers on the other, or between or
among any agents, representatives, parents, subsidiaries, affiliates,
predecessors in interest or successors in interest with respect to the
subject matter hereof and thereof are merged herein and replaced
hereby.
28
(n) COMPLIANCE WITH CANADIAN SECURITIES LAWS. Notwithstanding any
provision of this Agreement, the obligations of the Issuers hereunder
are subject to compliance with applicable Canadian securities laws,
including, without limitation, the availability of any and all
exemptions thereunder from the registration and prospectus
requirements thereof and the obtaining of such other approvals or
consents that may be required in connection with the transactions
contemplated by this Agreement. For greater certainty, nothing in this
Agreement shall require the Issuers to file a prospectus in any
Canadian jurisdiction to qualify the Registrable Units in Canada for
purposes of any transactions contemplated by this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
29
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
THE HOCKEY COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
and Vice President,
Finance and Administration
SPORT MASKA INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President, Finance
and Administration
ACCEPTED AND AGREED TO:
JEFFERIES & COMPANIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
REGISTRATION RIGHTS AGREEMENT
30
