EXHIBIT (99f)
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the " Registration Rights Agreement" or
"Agreement") is entered into as of January 27, 1997, by and among GOLF-
TECHNOLOGY HOLDING, INC., an Idaho corporation (the "Company"), and Xxxxx
Partners III, L.P. ("Xxxxx") and RBB Bank Aktiengesellschaft ("RBB," together
with Xxxxx, collectively, the "Investors" and each an "Investor").
Recitals
WHEREAS, the Company is offering to sell (A) shares of Series C Preferred
Stock (the "Preferred Stock") of the Company in the amount of (i) 1,875
Preferred Shares to RBB (the "RBB Preferred Shares"), and (ii) 2,625 Preferred
Shares of the Company to Xxxxx (the "Xxxxx Preferred Shares"), (B) warrants (the
"Warrants") for the purchase of shares of common stock par value $.001 (the
"Common Stock") of the Company in the amount of (i) 187,500 shares of Common
Stock pursuant to the terms of the Warrant for the Purchase of Shares of Common
Stock (the "RBB Warrant"), issued on January 27, 1997, by the Company to RBB,
(ii) 51,724 shares of Common Stock pursuant to the terms of the Warrant for the
Purchase of Shares of Common Stock (the "Additional RBB Warrant"), issued on
January 27, 1997, by the Company to RBB, and (iii) 262,500 shares of Common
Stock pursuant to the terms of the Warrant for the Purchase of Shares of Common
Stock (the "Xxxxx Warrant"), issued on January 27, 1997, by the Company to Xxxxx
and (C) 51,724 shares of Common Stock to RBB (the "RBB Common Shares"), for an
aggregate purchase price to be paid by RBB of One Million, Two Hundred Fifty
Thousand Dollars ($1,250,000) (U.S.) pursuant to the terms of the Regulation S
Securities Subscription Agreement (the "Regulation S Agreement"), dated January
27, 1997, between the Company and RBB, and for an aggregate purchase price to be
paid by Xxxxx of One Million Seven Hundred Fifty Thousand Dollars ($1,750,000)
(U.S.), pursuant to the terms of the Regulation D Securities Subscription
Agreement (the "Regulation D Agreement" and collectively with the Regulation S
Agreement, "the Subscription Agreements"), dated January 27, 1997, between the
Company and Xxxxx; and
WHEREAS, pursuant to the terms of, and in partial consideration for, the
Investors' agreement to enter into the Subscription Agreements, the Company has
agreed to provide the Investors with certain registration rights with respect to
the Offered Securities;
NOW THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in the Subscription Agreements
and this Agreement, the Company and the Investors agree as follows:
1. Certain Definitions. As used in this Registration Rights Agreement,
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the following terms shall have the following respective meanings:
"Xxxxx Securities" shall mean the Xxxxx Preferred Shares and Xxxxx
Warrants.
"Commission" shall mean the United States Securities and Exchange
Commission or any other United States agency at the time administering the
Securities Act.
"Converted Stock" shall mean the shares of Common Stock issuable upon
conversion of the Xxxxx Preferred Shares, Xxxxx Warrants, RBB Preferred Shares,
RBB Warrant and Additional RBB Warrant.
"Offered Securities" shall mean the Xxxxx Securities and the RBB
Securities.
"Other Registrable Securities" shall mean those shares of Common Stock
heretofore or hereafter issued pursuant to one or more agreements granting the
purchasers of such securities the right to have the Company register such
securities or include such securities in any other registration of the Company's
equity securities.
"RBB Securities" means the RBB Preferred Shares, RBB Warrants, RBB
Additional Warrants, and RBB Common Shares.
"RBB Shares" means the RBB Preferred Shares, RBB Common Shares, and the
shares of Common Stock issuable upon conversion of the RBB Preferred Shares or
exercise of the RBB Warrants or RBB Additional Warrants.
"Registrable Shares" shall mean (i) any Common Stock of the Company issued
or issuable in respect of the Warrants or Preferred Stock issued to RBB or
Xxxxx, or their permitted transferees, and (ii) the RBB Common Shares or upon
any stock split, stock dividend, recapitalization or similar event; provided,
however, that Registrable Shares or other securities shall no longer be treated
as Registrable Shares if (A) they have been sold to or through a broker or
dealer or underwriter in a public distribution or a public securities
transaction, (B) they have been sold in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act so that
all transfer restrictions and restrictive legends with respect thereto are
removed upon consummation of such sale or (C) all such Registrable Shares are
available for sale under the Securities Act (including Rule 144(k)), in the
opinion of counsel to the Company, without compliance with the registration and
prospectus delivery requirements of the Securities Act and without compliance
with the volume and manner of sale restrictions of Rule 144, so that all
transfer restrictions and restrictive legends with respect thereto may be
removed upon the consummation of such sale.
The terms "register", "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
"Registration Expenses" shall mean all expense incurred by the Company in
compliance with Section 2 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses, reasonable fees and
disbursements (not to exceed $20,000) of one counsel for all the selling
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holders of Registrable Shares for a limited "due diligence" examination of the
Company, and the reasonable expenses of any special audits incident to or
required by any such registration (but excluding the compensation of regular
employees of the Company, which shall be paid in any event by the Company, and
excluding all underwriting discounts and selling commissions applicable to the
sale of the Registrable Shares).
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Shares and all fees and
disbursements of one counsel for the selling holders of Registrable Shares
(other than the fees disbursements of such counsel included in Registration
Expenses).
2. Requested Registration.
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The following registration rights will apply (I) in connection with RBB,
if, and only if, at any time prior to the termination of this Agreement,
Regulation S promulgated under the Securities Act is rescinded or modified so as
to preclude RBB from reselling in United States public securities markets any of
the RBB Securities received from the Company pursuant to the Regulation S
Agreement following expiration of the Restricted Period (as defined in the
Regulation S Agreement), or if, for any other reason, the Company refuses to
issue RBB Shares bearing no restrictive legend to RBB after expiration of the
Restricted Period; or (II) in connection with Xxxxx, at any time after January
27, 1998; provided, however, that an Investor shall not be entitled to request
registration pursuant to this Agreement (and shall not be considered an Investor
pursuant to this Agreement, and the securities held by an Investor shall not be
considered Registrable Shares pursuant to this Agreement) if a representation or
warranty of such Investor in the applicable Subscription Agreement is inaccurate
or was inaccurate when made, or such Investor has failed to comply with the
covenants and agreements set forth in the applicable Subscription Agreement:
(a) Request for Registration. If the Company shall receive from any
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Investor, at any time after twelve (12) and prior to forty-eight (48) months
following the final closing of the sale of Offered Securities pursuant to the
Subscription Agreements, a written request that the Company effect a
registration with respect to all, but not less than all, of the Registrable
Shares held by such Investor (which notice shall specify the intended method of
disposition), the Company shall:
(i) promptly give written notice of the proposed registration to all
other holders of Registrable Shares; and
(ii) as soon as practicable use its best efforts to effect such
registration (including, without limitation, the execution of an undertaking to
file post-effective amendments, appropriate qualification under applicable blue
sky or other state securities laws and appropriate
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compliance with applicable regulations issued under the Securities Act) as may
be so requested and as would permit or facilitate the sale and distribution of
all or such portion of such Registrable Shares as are specified in such request,
together with all or such portion of the Registrable Shares of any holder or
holders of Registrable Shares joining in such request as are specified in a
written request given within fifteen (15) days after receipt of such written
notice from the Company; provided that the Company shall not be obligated to
effect, or to take any action to effect, any such registration pursuant to this
Section 2:
(A) after the Company has effected one or more such registrations
pursuant to this Section 2(a) and such registrations have been declared or
ordered effective by the Commission and the sale of all the Registrable Shares
shall have closed; or
(B) within the period starting with the date sixty (60) days prior to
the Company's good faith estimated date of filing of, and ending one hundred
eighty (180) days following the effective date of, any registered offering of
the Company's securities to the general public.
Subject to the foregoing limitations in clauses (A) and (B) above, the
Company shall file a registration statement covering the Registrable Shares so
requested to be registered as soon as practicable after receipt of the request
or requests of the Investors, but no later than forty-five (45) days following
receipt of such request or requests, except in the event audited financial
statements not previously prepared are required to be prepared prior to the
filing of such registration statement, in which case such registration statement
must be filed as soon as practicable, but in any event within ninety (90) days
following receipt of such request or requests.
The registration statement filed pursuant to the request of an
Investor may, subject to the provision of Section 2(b) below, include Other
Registrable Securities, other securities of the Company which are held by
officers or directors of the Company or which are held by other holders of
registration rights, and may include securities of the Company being sold for
the account of the Company.
(b) Underwriting. If an Investor intends to distribute the
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Registrable Shares covered by their request by means of an underwriting, they
shall so advise the Company as a part of their request made pursuant to Section
2 and the Company shall include such information in the written notice referred
to in Section 2(a)(i) above. The right of any holder of Registrable Shares to
registration pursuant to Section 2 shall be conditioned upon such holder's
participation in such underwriting and the inclusion of such holder's
Registrable Shares in such underwriting (unless otherwise mutually agreed by a
majority in interest of the Investors and such holder with respect to such
participation and inclusion) to the extent provided herein. A holder of
Registrable Shares may elect to include in such underwriting all or a part of
the Registrable Shares it holds.
(i) If the Company shall request inclusion in any registration
pursuant to Section 2 of securities being sold for its own account, or if
officers or directors of the Company holding other securities of the Company or
other holders of registration rights, shall request
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inclusion in any registration pursuant to Section 2, the Investors shall, on
behalf of all holders of Registrable Shares, offer to include Other Registrable
Securities and the securities of the Company, such officers and directors and
such other holders of registration rights in the underwriting and may condition
such offer on their acceptance of the further applicable provisions of this
Agreement. The Company shall (together with all holders of Registrable Shares,
officers and directors, other holders of registration rights and holders of
Other Registrable Securities proposing to distribute their securities through
such underwriting) enter into an underwriting agreement in customary form with
the underwriter or representative of the underwriters selected for such
underwriting by the Company, which underwriter(s) shall be reasonably acceptable
to a majority in interest of the Investors.
(ii) Notwithstanding any other provision of this Section 2, if the
representative of the underwriters advises the Company in writing that marketing
factors require a limitation on the number of shares to be underwritten, the
Company shall so advise all holders of Registrable Shares and other shareholders
whose securities would otherwise be underwritten pursuant hereto, and the number
of Registrable Shares and other securities that may be included in the
registration and underwriting shall be allocated in the following manner: the
securities of the Company held by officers and directors of the Company (other
than Registrable Shares) shall be excluded from such registration and
underwriting to the extent required by such limitation, and, if a limitation on
the number of shares is still required, the Other Registrable Securities shall
be excluded pro rata with Registrable Shares, unless another method of
determining such exclusion is specified in the agreements governing the Other
Registrable Securities, according to the relative number of Other Registrable
Securities requested to be included in such registration and underwriting, from
such registration and underwriting to the extent required by such limitation,
and, if a limitation on the number of shares is still required, the number of
Registrable Shares that may be included in the registration and underwriting
shall be allocated among all holders of Registrable Shares in proportion, as
nearly as practicable, to the respective amounts of Registrable Shares which
they had requested to be included in such registration at the time of filing the
registration statement. No Registrable Shares or any other securities excluded
from the underwriting by reason of the underwriter's marketing limitation shall
also be included in such registration. In connection with the registration
rights granted to Xxxxx pursuant to this Agreement, the parties hereto
acknowledge and agree that (i) pursuant to the terms of the Regulation D
Agreement, Xxxxx has a qualified right to designate one member of the Board of
Directors of the Company, and (ii) that in no way shall the satisfaction of such
right limit or adversely affect the registration rights granted to Xxxxx
pursuant to this Agreement.
(iii) If the Company or any officer, director or holder of
Registrable Shares or Other Registrable Securities who has requested inclusion
in such registration and underwriting as provided above disapproves of the terms
of the underwriting, such person may elect to withdraw therefrom by written
notice to the Company, the underwriter and the Investors. The securities so
withdrawn shall also be withdrawn from registration.
(c) Number of Requests for Registration. Each of Xxxxx and RBB, or
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their permitted transferees, shall have one (1) requested registration right
under this Section 2.
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3. Incidental Registration Under Securities Act of 1933.
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(a) The Company agrees that if, at any time and, from time to time
(during the period commencing on the Commencement Date and ending on the
Expiration Date), the Board of Directors of the Company shall authorize the
filing of a registration statement other than a registration statement on Form
S-4 or S-8 (any such registration statement being sometimes hereinafter called a
"Company Initiated Registration Statement") under the Act (otherwise than
pursuant to Section 2 hereof) in connection with the proposed offer of any of
its securities by it or any of its shareholders, the Company will (i) promptly
notify the Investors and all of their permitted transferees, if any, that such
Company Initiated Registration Statement will be filed and that the Registrable
Shares which are then held, and/or which may be acquired upon the exercise of
the Warrants or conversion of the Preferred Stock, by the Investors, or their
permitted transferees, and such Investors, or their permitted transferees, will
be included in such Company Initiated Registration Statement at the Investors',
or their permitted transferees' request, (ii) cause such Company Initiated
Registration Statement to cover all Registrable Shares which it has been so
requested to include, (iii) cause such Company Initiated Registration Statement
to become effective as soon as practicable and to remain effective and current
for a minimum period of one hundred eighty (180) days (unless terminated earlier
as contemplated by Section 2(a)(ii)(A) or (B), and (iv) take all other action
necessary under any federal or state law or regulation of any governmental
authority to permit all Registrable Shares which it has been so requested to
include in such Company Initiated Registration Statement to be sold or otherwise
disposed of and will maintain such compliance with each such federal and state
law and regulation of any governmental authority for the period such
registration statement remains effective (such period being a minimum of one
hundred eighty (180) days, unless the effectiveness of the registration
statement is terminated earlier as contemplated by Section 2(a)(ii)(A) or (B)).
If the registration of which the Company gives notice is a firmly underwritten
registered public offering, the Company shall so advise the Investors, and their
permitted transferees, as part of the written notice given pursuant to this
Section 3(a). In such event, notwithstanding any other provision of this Section
3(a), if the underwriter of such public offering determines in its reasonable
discretion that marketing factors require the limitation of the number of shares
to be underwritten, the underwriter may (subject to the allocation priority set
forth below) exclude some or all of the Registrable Shares from such
registration and underwriting. The Company shall so advise all Investors, and
their permitted transferees, shall allocate the securities to be included in
such offering in the following manner. The Company may exclude shares of all
Investors, and their permitted transferees, of registration rights without any
exclusion of shares offered by the Company, provided that no securities other
than securities offered by the Company are included in such registration. In the
event of any exclusion of shares held by holders of registration rights, the
securities of the Company (other than the Registrable Shares) issued subsequent
the date hereof (whether or not such securities are entitled to registration
rights) shall be excluded first to the extent required by such limitation and,
if a limitation of the number of shares is still required, the number of shares
that may be included in the registration and underwriting shall be allocated
among all Investors, and their permitted transferees, and all holders of shares
of Common Stock (or securities that are convertible into or exchangeable for
shares of Common Stock) that were issued and outstanding prior to the date
hereof and which shares of Common Stock (including shares of Common Stock
issuable upon conversion or exchange of such convertible securities) the Company
is contractually obligated or otherwise desires, at the request of such holders,
to
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include in such registration ("Prior Shares") in proportion, as nearly as
practicable, to the respective number of Registrable Shares held or purchasable
by such Investors, and their permitted transferees, and the respective number of
Prior Shares, each determined at the time of the notice referred to in this
Section 3(a).
(b) Whenever the Company is required pursuant to the provisions of this
Section 3 to include Registrable Shares in a registration statement, the Company
shall (i) furnish each Investors of any such Registrable Shares and each
underwriter of such Registrable Shares with such copies of the prospectus,
including the preliminary prospects, conforming to the Act (and such other
documents as each such Investors or each such underwriter may reasonably
request) in order to facilitate the sale or distribution of the Registrable
Shares, (ii) use its best efforts to register or qualify such Registrable Shares
under the blue sky laws (to the extent applicable) of such jurisdiction or
jurisdictions as the Investors, or their permitted transferees, of any such
Registrable Shares and each underwriter of Registrable Shares being sold by
Investors, or their permitted transferees, shall reasonably request, and (iii)
take such other actions as may be reasonably necessary or advisable to enable
such Investors, or their permitted transferees, and such underwriters to
consummate the sale or distribution in such jurisdiction or jurisdictions in
which such Investors, or their permitted transferees, shall have reasonably
requested that the Registrable Shares be sold.
(c) The parties hereto, hereby acknowledge and agree that the registration
rights granted to the Investors pursuant to Section 3 of this Agreement are
subordinate to the "piggyback" registration rights of Third World Investments,
Ltd. ("Third World") granted by the Company to Third World pursuant to that
certain Warrant for the Purchase of Shares of Common Stock, issued on May 21,
1996, for 500,000 shares, by the Company to Third World.
4. Expenses of Registration. The Company shall bear all Registration
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Expenses incurred in connection with any registration, qualification or
compliance of the Registrable Shares pursuant to this Agreement. All Selling
Expenses shall be borne by the holders of the securities so registered pro rata
on the basis of the number of their shares so registered.
5. Registration Procedures. Pursuant to this Agreement, the Company will
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keep each holder of Registrable Shares advised in writing as to the initiation
of a registration under this Agreement and as to the completion thereof. At its
expense, the Company will:
(a) Use reasonable efforts to keep such registration effective for a
period of one hundred eighty (180) days or until the holder or holders of
Registrable Shares have completed the distribution described in the registration
statement relating thereto or until the securities registered cease to be
Registrable Shares, whichever first occurs;
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of securities
covered by such registration statement; and
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(c) Furnish such number of prospectuses and other documents incidental
thereto, including any amendment of or supplement to the prospectus, as a holder
of Registrable Shares from time to time may reasonably request.
6. Indemnification.
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(a) The Company will indemnify each holder of Registrable Shares, each
of its officers, directors and each person controlling such holder of
Registrable Shares, with respect to which registration has been effected
pursuant to this Agreement, and each underwriter, if any, and each person who
controls any underwriter, and their respective counsel against all claims,
losses, damages and liabilities (or actions, proceedings or settlements in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus, or other
document incident to any such registration, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of the Securities Act or any rule or regulation thereunder applicable to
the Company in connection with any such registration and will reimburse each
such holder of Registrable Shares, each of its officers, directors and partners,
and each person controlling such holder of Registrable Shares, each such
underwriter and each person who controls any such underwriter, for any legal and
any other expenses as they are reasonably incurred in connection with
investigating and defending any such claim, loss, damage, liability or action,
provided, however, that the indemnity contained in this Section 6(a) shall not
apply to amounts paid in settlement of any such claim, loss, damage, liability
or action if such settlement is effected without the consent of the Company; and
provided further that the Company shall not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission based upon written information
furnished to the Company by such holder of Registrable Shares or underwriter and
stated to be specifically for use therein. The foregoing indemnity agreement is
further subject to the condition that insofar as it relates to any untrue
statement, alleged untrue statement, omission or alleged omission made in a
preliminary prospectus, such indemnity agreement shall not inure to the benefit
of the foregoing indemnified parties if copies of a final prospectus correcting
the misstatement, or alleged misstatement, omission or alleged omission upon
which such loss, liability, claim or damage is based is timely delivered to such
indemnified party and a copy thereof was not furnished to the person asserting
the loss, liability, claim or damage.
(b) Each holder of Registrable Shares, severally and not jointly,
will, if Registrable Shares held by it are included in the securities as to
which such registration is being effected, indemnify the Company, each of its
directors and officers and each underwriter, if any, of the Company's securities
covered by such a registration statement, each person who controls the Company
or such underwriter within the meaning of the Securities Act and the rules and
regulations thereunder, each other such holder of Registrable Shares and each of
its officers, directors and partners, and each person controlling such holder of
Registrable Shares, and their respective counsel against all claims, losses,
damages and liabilities (or actions, proceedings or settlements in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact relating to such holder contained in any such
registration statement, prospectus, offering circular or other document, or any
omission (or alleged omission) to state therein a material fact required to be
stated therein relating to such holder or necessary to make the statements
therein relating to such holder not misleading or any violation by such holder
of any rule or regulation promulgated under the Securities Act applicable to
such holder and relating to action or inaction required of such holder in
connection with any such registration; and will reimburse the Company, such
holders of Registrable Shares, directors, officers, partners, persons,
underwriters or control persons for any legal or any other expense reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) relating to such holder is made in such registration statement,
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prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by such holder of
Registrable Shares and stated to be specifically for use therein; provided,
however, that such indemnification obligations shall not apply if the Company
modifies or changes to a material extent written information furnished by such
holder; provided, further, that the obligation of any holder of Registrable
Shares to indemnify the Company under the provisions of this Section 6(b) shall
be limited to the product of the number of Registrable Shares being sold by the
selling holder and the market price of the Common Stock on the date of the sale
to the public of these Registrable Shares.
(c) Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld or delayed), and the Indemnified Party may participate
in such defense at such Indemnified Party's expense. No Indemnifying Party, in
the defense of any such claim or litigation, shall except with the consent of
each Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with defense of such claim and litigation resulting
therefrom.
7. Information By Holder of Registrable Shares. Each holder of
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Registrable Shares shall furnish to the Company such information regarding such
holder of Registrable Shares and the distribution proposed by such holder of
Registrable Shares as the Company may reasonably request in writing and as shall
be reasonably required in connection with any registration referred to in this
Agreement.
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8. Miscellaneous.
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8.1 Governing Law. This agreement shall be governed by and construed
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in accordance with the laws of the State of New York without giving effect to
conflict of laws.
8.2 Successors and Assigns. Except as otherwise provided herein, the
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provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
8.3 Entire Agreement. This Agreement constitutes the full and entire
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understanding and agreement between the parties with regard to the subject
matter hereof.
8.4 Notices. etc. All notices and other communications required or
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permitted hereunder shall be in writing and shall be mailed by first-class mail,
postage prepaid, or delivered by hand or by messenger or courier delivery
service, addressed (a) if to Xxxxx, at 00 Xxxx Xxxxxx, 0/xx/ Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxx Xxxxx, or at such other address as such
Investor shall have furnished to the Company in writing, (b) if to RBB, at
Xxxxxxxx 00, 0000 Xxxx, Xxxxxxx, Attention: Xxxxxxx Xxxxxxx, or at such other
address as such Investor shall have furnished to the Company in writing, or (c)
if to the Company, at 13000 Sawgrass Xxxxxxx Xxxxxx, Xxxxx 00, Xxxxx Xxxxx
Xxxxx, Xxxxxxx 00000, Attention: President, or at such other address as the
Company shall have furnished to each Investor and each such other holder in
writing.
8.5 Delays or Omissions. No delay or omission to exercise any right,
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power or remedy accruing to any holder of any Registrable Shares, upon any
breach or default of the Company under this Agreement, shall impair any such
right, power or remedy of such holder nor shall it be construed to be a waiver
of any such breach or default, or an acquiescence therein, or of or in any
similar breach or default thereunder occurring, nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any holder of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions of
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement, a by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
8.6 Counterparts. This agreement may be executed in any number of
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counterparts, each of which may be executed by less than all of the parties
hereto, each of which shall be enforceable against the parties actually
executing such counterparts and all of which together shall constitute one
instrument.
8.7 Severability. In the case any provision of this Agreement shall
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be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
8.8 Amendments. The provisions of this Agreement may be amended at
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any time and from time to time, and particular provisions of this Agreement may
be waived, with and
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only with an agreement or consent in writing signed by the Company and by the
Investors currently holding fifty percent (50%) of the Registrable Shares as of
the date of such amendment or waiver.
[Signature page follows, remainder of page intentionally blank]
11
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be executed as of the date first above written.
COMPANY: GOLF-TECHNOLOGY HOLDING, INC.
By: /S/ XXXXXX X. XXXXXXXX
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President, Chief Financial Officer,
Chief Operating Officer, and Secretary
INVESTORS: XXXXX PARTNERS III, L.P.
By: Ninth Floor Corp.
its general partner
By: /S/ XXXXX XXXXX
-------------------------
Name: Xxxxx Xxxxx
Title: Vice President
RBB BANK AKTIENGESELLSCHAFT
By: /S/ XXXXXXX XXXXXXX
----------------------
Name: Xxxxxxx Xxxxxxx
Title: Head Trader
