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EXHIBIT 10.3
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT, dated as of April 30, 1996 (this
"Agreement"), is made by and among Collectible Champions, Inc., a Delaware
corporation, (the "Company"), ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners, L.P., a Delaware
limited partnership ("▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇ Capital Partners II Limited
Partnership, a Wisconsin Limited Partnership ("▇▇▇▇▇"), BCP II Affiliates Fund
Limited Partnership, a Wisconsin limited partnership ("BCP II"), Nassau Capital
Partners L.P., a Delaware limited partnership ("Nassau"), NAS Partners I
L.L.C., a Delaware limited liability company ("NAS"), ▇▇▇▇▇▇ ▇▇▇▇ ("Dods"),
▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇"), ▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇"), ▇▇▇▇-▇▇▇▇▇, Ltd., an Illinois
corporation ("DM"), Racing Champions Limited, a Hong Kong corporation ("RCL"),
▇▇▇▇▇▇▇ Services, Inc., a British Virgin Island corporation ("GSI"), Hosten
Investment Limited, a Hong Kong corporation ("HIL"), ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇▇▇"), ▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇"), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇") and ▇▇▇▇▇ ▇▇▇▇
("Camp"). ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, BCP II, Nassau and NAS are referred to herein
collectively as the "Investors." Dods, Meyer, ▇▇▇▇▇, ▇▇, RCL, GSI and HIL are
referred to herein collectively as the "Founders." Stoelting, Olsen, ▇▇▇▇▇▇▇▇
and Camp are referred to herein collectively as the "Executives." Certain
capitalized terms used herein are defined in Section 8 below.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. Demand Registrations.
(a) Requests for Registration.
(i) Requests by Holders of Investor Registrable Securities. The
holders of at least a majority of the Investor Registrable Securities then
in existence may at any time request registration under the Securities Act
of all or any portion of their Registrable Securities on Form S-1 or any
similar long-form registration ("Long-Form Registrations") or, if available,
on Form S-2 or S-3 or any similar short-form registration ("Short-Form
Registrations"). All registrations requested pursuant to this Section
1(a)(i) are referred to herein as "Investor Demand Registrations." Each
request for an Investor Demand Registration shall specify the approximate
number of Registrable Securities requested to be registered and the
anticipated per share price range for such offering. Within ten days after
receipt of any such request, the Company shall give written notice of such
requested registration to all other holders of Registrable Securities and
shall include in such registration all Registrable Securities with respect
to which the Company has received written requests for inclusion therein
within 20 days after the receipt of the Company's notice.
(ii) Request by holders of Founder Registrable Securities. The
holders of at least a majority of the Founder Registrable Securities then in
existence may at any time after the date which is one year following the
date on which the Company completes a public offering of its Common Stock
under the Securities Act, request a Long-Form Registration or, if available,
a Short-Form Registration (the "Founder Demand Registration"). Such
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request for the Founder Demand Registration shall specify the approximate
number of Registrable Securities requested to be registered and the
anticipated per share price range for such offering. Within ten days after
receipt of any such request, the Company shall give written notice of such
requested registration to all other holders of Registrable Securities and
shall include in such registration all Registrable Securities with respect
to which the Company has received written requests for inclusion therein
within 20 days after the receipt of the Company's notice.
The Investor Demand Registrations and the Founder Demand Registration are
referred to collectively as the "Demand Registrations" and individually as a
"Demand Registration."
(b) Long-Form Registrations. The holders of a majority of the Investor
Registrable Securities then in existence shall be entitled to request an
unlimited number of Long-Form Registrations. The holders of a majority of the
Founder Registrable Securities then in existence shall be entitled to request
one Long-Form Registration. The aggregate offering value of the Registrable
Securities requested to be registered in any Long-Form Registration must equal
at least $10.0 million. The Company shall pay all Registration Expenses in
connection with any registration initiated as a Long-Form Registration whether
or not it has become effective. All Long-Form Registrations shall be
underwritten registrations.
(c) Short-Form Registrations. In addition to the Long-Form Registrations
provided pursuant to Section 1(b), the holders of a majority of the Investor
Registrable Securities then in existence shall be entitled to request an
unlimited number of Short-Form Registrations. In lieu of the Long-Form
Registration provided pursuant to Section 1(b), the holders of a majority of
the Founder Registrable Securities then in existence shall be entitled to
request one Short-Form Registration if the holders of a majority of the Founder
Registrable Securities have not theretofore exercised their right to one
Long-Form Registration. In addition to the Long-Form Registration provided
pursuant to Section 1(b) (or the Short-Form Registration provided pursuant to
the preceding sentence, as the case may be), the holders of a majority of the
Founder Registrable Securities then in existence shall be entitled to request
one Short-Form Registration. The aggregate offering value of the Registrable
Securities requested to be registered in any Short-Form Registration must equal
at least $1.0 million. The Company shall pay all Registration Expenses in
connection with any registration initiated as a Short-Form Registration whether
or not it has become effective. Demand Registrations shall be Short-Form
Registrations whenever the Company is permitted to use any applicable short
form. After the Company has become subject to the reporting requirements of
the Securities Exchange Act of 1934, as amended, the Company shall use its best
efforts to make Short-Form Registrations on Form S-3 available for the sale of
Registrable Securities. All Short-Form Registrations shall be underwritten
registrations, unless otherwise agreed to by the Company.
(d) Priority on Demand Registrations. The Company shall not include in
any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of at least a majority of the
Registrable Securities included in such
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registration. If a Demand Registration is an underwritten offering and the
managing underwriters advise the Company in writing that in their opinion the
number of Registrable Securities and, if permitted hereunder, other securities
requested to be included in such offering exceeds the number of Registrable
Securities and other securities, if any, which can be sold therein without
adversely affecting the marketability of the offering, the Company shall
include in such registration prior to the inclusion of any securities which are
not Registrable Securities the number of Registrable Securities requested to be
included which in the opinion of such underwriters can be sold without
adversely affecting the marketability of the offering, pro rata among the
respective holders thereof on the basis of the number of shares owned by each
such requesting holder.
(e) Restrictions on Demand Registrations. The Company shall not be
obligated to effect any Demand Registration within 180 days after the effective
date of a previous Demand Registration. The Company may postpone for up to 180
days the filing or the effectiveness of a registration statement for a Demand
Registration if the Company determines that such Demand Registration would
reasonably be expected to have a material adverse effect on any proposal or
plan by the Company or any of its Subsidiaries to engage in any acquisition of
assets (other than in the ordinary course of business) or any merger,
consolidation, tender offer, reorganization or similar transaction; provided
that in such event, the holders of Registrable Securities initially requesting
such Demand Registration shall be entitled to withdraw such request and, if
such request is withdrawn, such Demand Registration shall not count as one of
the permitted Demand Registrations hereunder and the Company shall pay all
Registration Expenses in connection with such registration.
(f) Demand Registration Expenses. The Registration Expenses of the
holders of Registrable Securities shall be paid by the Company in all Demand
Registrations.
(g) Selection of Underwriters. The Company shall select the investment
banker(s) and manager(s) to administer each Demand Registration, subject to
approval by the holders of a majority of the Registrable Securities requesting
such Demand Registration, which approval shall not be unreasonably withheld.
(h) Other Registration Rights. Except as provided in this Agreement, the
Company shall not grant to any Persons the right to request the Company to
register any equity securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, without the prior written
consent of the holders of at least a majority of the Registrable Securities.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any of
its securities under the Securities Act (other than pursuant to a Demand
Registration) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the
Company shall give prompt written notice to all holders of Registrable
Securities of its intention to effect such a registration and shall include in
such registration all Registrable
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Securities with respect to which the Company has received written requests for
inclusion therein within 20 days after the receipt of the Company's notice.
(b) Priority on Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering without adversely affecting the
marketability of the offering, the Company shall include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the
Registrable Securities requested to be included in such registration, pro rata
among the holders of such Registrable Securities on the basis of the number of
shares owned by each such requesting holder, and (iii) third, other securities
requested to be included in such registration.
(c) Priority on Secondary Registrations. If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of the Company's
securities other than holders of Registrable Securities (it being understood
that secondary registrations on behalf of holders of Registrable Securities are
addressed in Section 1 above rather than this Section 2(c)), and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering without adversely affecting the
marketability of the offering, the Company shall include in such registration
(i) first, the securities requested to be included therein by the holders
requesting such registration, (ii) second, the Registrable Securities requested
to be included in such registration, pro rata among the holders of such
Registrable Securities on the basis of the number of shares owned by each such
requesting holder, and (iii) third, other securities requested to be included
in such registration.
(d) Piggyback Registration Expenses. The Registration Expenses of the
holders of Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(e) Selection of Underwriters. The Company shall select the investment
banker(s) and manager(s) to administer each Piggyback Registration, subject to
approval by the holders of a majority of the Registrable Securities included in
such Piggyback Registration, which approval shall not be unreasonably withheld.
3. Holdback Agreements.
(a) Each holder of Registrable Securities hereby agrees to not effect any
public sale or distribution (including sales pursuant to Rule 144) of equity
securities of the Company, or any securities convertible into or exchangeable
or exercisable for such securities, during the seven days prior to and the
90-day period beginning on the effective date of any underwritten registered
public offering of equity securities of the Company or securities convertible
or exchangeable into or exercisable for equity securities of the Company
(except as part of such underwritten registration), unless the underwriters
managing the registered public offering require a longer period, in which
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case each holder of Registrable Securities shall not effect any such sale or
distribution during such longer period; provided that such longer period shall
not extend beyond 180 days following such effective date.
(b) The Company (i) shall not effect any public sale or distribution of
its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
180-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-4 or S-8 or
any successor forms), unless the underwriters managing the registered public
offering otherwise agree, and (ii) shall cause each holder of at least 3% (on a
fully-diluted basis) of its Common Stock, or any securities convertible into or
exchangeable or exercisable for Common Stock, purchased from the Company at any
time after the date of this Agreement (other than in a registered public
offering) to agree not to effect any public sale or distribution (including
sales pursuant to Rule 144) of any such securities during such period (except
as part of such underwritten registration, if otherwise permitted), unless the
underwriters managing the registered public offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered
pursuant to this Agreement, the Company shall use its reasonable best efforts
to effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant
thereto the Company shall as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
reasonable best efforts to cause such registration statement to become
effective within 120 days of the date on which the holders of such Registrable
Securities have requested that such Registrable Securities be registered
pursuant to this Agreement (provided that before filing a registration
statement or prospectus or any amendments or supplements thereto, the Company
shall furnish to the counsel selected by the holders of a majority of the
Registrable Securities covered by such registration statement copies of all
such documents proposed to be filed, which documents shall be subject to the
review and comment of such counsel);
(b) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(c) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned
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by such seller (provided that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this subsection, (ii) subject itself to taxation in
any such jurisdiction or (iii) consent to general service of process in any
such jurisdiction);
(d) notify each seller of such Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(e) cause all such Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are then listed and,
if not so listed, to be listed on the NASD automated quotation system and, if
listed on the NASD automated quotation system, use its reasonable best efforts
to secure designation of all such Registrable Securities covered by such
registration statement as a Nasdaq Stock Market "national market system
security" within the meaning of Rule 11Aa2-1 of the Securities and Exchange
Commission or, failing that, to secure Nasdaq Stock Market authorization for
such Registrable Securities and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register as such with
respect to such Registrable Securities with the NASD;
(f) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(g) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities (including effecting a stock split or a combination
of shares);
(h) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(i) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security
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holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months beginning with the first day of the Company's
first full fiscal quarter after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder;
(j) permit any holder of Registrable Securities which holder, in its sole
and exclusive judgment, might be deemed to be an underwriter or a controlling
person of the Company, to participate in the preparation of such registration
or comparable statement and to require the insertion therein of material,
furnished to the Company in writing, which in the reasonable judgment of such
holder and its counsel should be included;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(l) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the sellers thereof to consummate the disposition of such Registrable
Securities;
(m) obtain a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters, which letter shall be addressed to
the underwriters; and use its reasonable best efforts to cause such cold
comfort letter to also be addressed to the holders of such Registrable
Securities; and
(n) obtain an opinion from the Company's outside counsel in customary
form and covering such matters of the type customarily covered by such
opinions, which opinion shall be addressed to the underwriters and the holders
of such Registrable Securities.
5. Registration Expenses.
(a) All Registration Expenses shall be borne as provided in this
Agreement, except that the Company shall, in any event, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance
and the expenses and fees for listing the securities to be registered on each
securities exchange on which similar securities issued by the Company are then
listed or on the NASD automated quotation system.
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(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
included in such registration.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify, to the extent permitted by law, each
holder of Registrable Securities, its officers and directors and each Person
who controls such holder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses arising out of or based upon
any untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for
use therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the holders of
Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the Company,
its directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses arising out of or based upon any untrue or alleged untrue
statement of material fact contained in the registration statement, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only to the
extent that any information or affidavit so furnished in writing by such holder
contains such untrue statement or omits a material fact required to be stated
therein necessary to make the statements therein not misleading; provided that
the obligation to indemnify shall be individual to each holder and shall be
limited to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and
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indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not
be unreasonably withheld). An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim shall not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to
such claim.
(d) If the indemnification provided for in this Section 6 is unavailable
or insufficient to hold harmless an indemnified party under Section 6(a) or
6(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in Section 6(a) or 6(b) above in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and the indemnified party on the other in connection with the
statements or omissions which resulted in such losses, claims, demands or
liabilities as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the indemnifying party or parties on the one hand or the indemnified party on
the other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this Section 6(d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this Section 6(d). No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. Notwithstanding the foregoing,
the obligation to make any contributions hereunder shall be individual to each
holder and shall be limited to the net amount of proceeds received by such
holder from the sale of Registrable Securities pursuant to such registration
statement.
(d) The indemnification and contribution provided for under this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director or
controlling Person of such indemnified party and shall survive the transfer of
securities.
7. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
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8. Definitions.
"Acquisition Agreement" means the Asset and Stock Purchase Agreement,
dated as of the date hereof, by and among the Company, Racing Champions, Inc.,
the Founders and Banerjan Investment Limited.
"Common Stock" means the Voting Common and the Nonvoting Common.
"Founder Registrable Securities" means (i) the shares of Voting Common
issued to the Founders pursuant to the Acquisition Agreement, (ii) the shares
of Voting Common issued or issuable upon conversion of the Nonvoting Common
issued pursuant to the Acquisition Agreement, (iii) the shares of Voting
Common issued to DM pursuant to the Securities Purchase Agreement, dated as of
the date hereof, by and between DM and the Company (the "DM Securities Purchase
Agreement"), (iv) the shares of Voting Common issued or issuable upon
conversion of the Nonvoting Common issued pursuant to the DM Securities
Purchase Agreement, and (v) all Voting Common issued or issuable directly or
indirectly with respect to the securities referred to in clauses (i), (ii),
(iii) and (iv) above upon conversion or exchange or by way of a stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. For purposes of this Agreement,
a Person shall be deemed to be a holder of Founder Registrable Securities
whenever such Person has the right to acquire such Registrable Securities (upon
conversion, exercise or exchange in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the exercise
of such right), whether or not such acquisition has actually been effected. As
to any particular Founder Registrable Securities, such securities shall cease
to be Founder Registrable Securities when they have been sold in a Public Sale
or repurchased by the Company or any Subsidiary of the Company.
"Investor Registrable Securities" means (i) the shares of Voting Common
issued to the Investors pursuant to the Securities Purchase Agreement and (ii)
all Voting Common issued or issuable directly or indirectly with respect to the
securities referred to in clause (i) above upon conversion or exchange or by
way of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization. For
purposes of this Agreement, a Person shall be deemed to be a holder of Investor
Registrable Securities whenever such Person has the right to acquire such
Registrable Securities (upon conversion, exercise or exchange in connection
with a transfer of securities or otherwise, but disregarding any restrictions
or limitations upon the exercise of such right), whether or not such
acquisition has actually been effected. As to any particular Investor
Registrable Securities, such securities shall cease to be Investor Registrable
Securities when they have been sold in a Public Sale or repurchased by the
Company or any Subsidiary of the Company.
"Nonvoting Common" means the Company's Nonvoting Common Stock, par value
$.01 per share.
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"Other Registrable Securities" means (i) the shares of Voting Stock issued
to the Executives pursuant to the Securities Purchase Agreement and (ii) any
shares of Voting Common issued or issuable upon exercise of options to acquire
stock of the Company issued to any Executive or any other employee of the
Company and/or its Subsidiaries who becomes a party to this Agreement and (iii)
all Common Stock issued or issuable directly or indirectly with respect to the
securities referred to in clauses (i) and (ii) above upon conversion or
exchange or by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization. For purposes of this Agreement, a Person shall be deemed to be
a holder of Other Registrable Securities whenever such Person has the right to
acquire such Registrable Securities (upon conversion, exercise or exchange in
connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected. As to any particular Other
Registrable Securities, such securities shall cease to be Other Registrable
Securities when they have been sold in a Public Sale or repurchased by the
Company or any Subsidiary of the Company.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Public Sale" means any sale of capital stock to the public pursuant to an
offering registered under the Securities Act or to the public through a broker,
dealer or market maker pursuant to the provisions of Rule 144 adopted under the
Securities Act.
"Registrable Securities" means the Investor Registrable Securities, the
Founder Registrable Securities and the Other Registrable Securities.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with this Agreement, including without limitation
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery
expenses, fees and disbursements of custodians, and fees and disbursements of
counsel for the Company and all independent certified public accountants,
underwriters (excluding discounts and commissions) and other Persons retained
by the Company.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute.
"Securities Purchase Agreement" means the Purchase Agreement, dated as of
the date hereof, by and among the Company, the Investors and the Executives.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, association or other business entity of which (i) if a
corporation, a majority of the total voting power of shares of stock entitled
(without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees thereof is at the time owned or controlled,
directly or
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12
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a partnership, association or other business entity if
such Person or Persons shall be allocated a majority of partnership,
association or other business entity gains or losses or shall be or control any
managing director or general partner of such partnership, association or other
business entity.
"Voting Common" means the Company's Common Stock, par value $.01 per
share.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company shall not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Adjustments Affecting Registrable Securities. The Company shall not
take any action, or permit any change to occur, with respect to its securities
which would materially and adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would materially and adversely
affect the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or a
combination of shares).
(c) Remedies. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and
to exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service
(charges prepaid) or mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to each holder of Registrable Securities at the
address indicated on the books and records of the Company and to the Company at
the address indicated below:
Collectible Champions, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇ & Partners, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attn: Avy ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. Perl
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
(e) Amendments and Waivers. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the holders of Registrable Securities unless
such modification, amendment or waiver is approved in writing by the Company
and the holders of at least a majority of the Registrable Securities then in
existence; provided that no such amendment or action which materially adversely
affects any one holder of Registrable Securities, as such, vis-a-vis the other
holders of Registrable Securities, as such, shall be effective against such
holder without the prior written consent of such holder. The failure of any
party to enforce any of the provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect the right of such
party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
(f) Successors and Assigns; No Third Party Beneficiaries. All covenants
and agreements in this Agreement by or on behalf of any of the parties hereto
shall bind and inure to the benefit of the respective successors and assigns of
the parties hereto whether so expressed or not. In addition, whether or not
any express assignment has been made, the provisions of this Agreement which
are for the benefit of purchasers or holders of Registrable Securities are also
for the benefit of, and enforceable by, any subsequent holder of Registrable
Securities. Subject to the preceding
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14
sentence, this Agreement shall not confer any rights or remedies upon any
Person other than the parties hereto and their respective successors and
assigns.
(g) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
(h) Entire Agreement. Except as otherwise expressly set forth herein,
this document embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among
the parties, written or oral, which may have related to the subject matter
hereof in any way.
(i) Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together shall constitute one
and the same Agreement.
(j) Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
(k) Governing Law. The corporate law of Delaware will govern all issues
concerning the relative rights of the Company and its stockholders. All other
issues concerning this Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of
Illinois or any other jurisdiction) that would cause the application of the law
of any jurisdiction other than the State of Illinois.
* * * * *
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15
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Agreement on the day and year first above written.
COLLECTIBLE CHAMPIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------
Its: President
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▇▇▇▇▇▇ ▇▇▇▇▇ & PARTNERS, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners, L.L.C.
Its: General Partner
By: /s/ Avy ▇. ▇▇▇▇▇
---------------------
Its: Managing Director
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▇▇▇▇▇ CAPITAL PARTNERS II LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Its: Managing Director
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BCP II AFFILIATES FUND LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Its: Managing Director
-------------------
NASSAU CAPITAL PARTNERS L.P.
By: Nassau Capital L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇▇▇ Sweemar
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Its: Member
--------------------
NAS PARTNERS I L.L.C.
By:/s/ ▇▇▇▇▇▇▇▇▇ Sweemar
----------------------
Its: /s/ Member
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16
[CONTINUATION OF SIGNATURE PAGE TO REGISTRATION AGREEMENT]
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇▇▇▇▇
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇
▇▇▇▇-▇▇▇▇▇, LTD.
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Its: Vice President
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RACING CHAMPIONS LIMITED
By:/s/ ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
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Its:
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▇▇▇▇▇▇▇ SERVICES, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
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Its:
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HOSTEN INVESTMENT LIMITED
By:/s/ ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
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Its:
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