EXHIBIT 4.3
125,000,000
TRUE TEMPER SPORTS,
INC.
8 3 / 8 %
Senior Subordinated Notes due 2011
REGISTRATION RIGHTS
AGREEMENT
March 15, 2004
Credit Suisse First Boston
LLC
Goldman, Sachs & Co.
c/o Credit Suisse First Boston
LLC
Eleven Madison Avenue
New York, New York
10010-3629
Dear Ladies and
Gentlemen:
True Temper Sports, Inc., a Delaware
corporation (the “Issuer”), proposes to issue and sell
to Credit Suisse First Boston LLC and Goldman, Sachs & Co.
(collectively, the “Initial Purchasers”), upon the
terms set forth in a purchase agreement dated March 3, 2004 (the
“Purchase Agreement”), $125,000,000 aggregate principal
amount of its Senior Subordinated Notes due 2011 (the
“Initial Securities”) to be unconditionally guaranteed
(the “Guaranties”) by El Cajon Equipment Corporation
and True Temper Sports, PRC Holdings, Inc. (the
“Guarantors” and together with the Issuer, the
“Company”). The Initial Securities will be issued
pursuant to an Indenture, dated as of March 15, 2004 (the
“Indenture”) among the Company, the Guarantors named
therein and The Bank of New York (the “Trustee”).
As an inducement to the Initial Purchasers to enter into the
Purchase Agreement, the Company agrees with the Initial Purchasers,
for the benefit of the holders of the Initial Securities
(including, without limitation, the Initial Purchasers), the
Exchange Securities (as defined below) and the Private Exchange
Securities (as defined below) (collectively the
“Holders”), as follows:
1. Registered
Exchange Offer . The Company shall, at its own cost,
prepare and, not later than 90 days after (or if the 90th day is
not a business day, the first business day thereafter) the date of
original issue (the “Issue Date”) of the Initial
Securities (the “Registered Exchange Filing Deadline”),
file with the Securities and Exchange Commission (the
“Commission”) a registration statement (the
“Exchange Offer Registration Statement”) on an
appropriate form under the Securities Act of 1933, as amended (the
“Securities Act”), with respect to a proposed offer
(the “Registered Exchange Offer”) to the Holders of
Transfer Restricted Securities (as defined in Section 6
hereof), who are not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer, to
issue and deliver to such Holders, in exchange for the Initial
Securities, a like aggregate principal amount of debt securities
(the “Exchange Securities”) of the Company issued under
the Indenture and identical in all material respects to the Initial
Securities (except for the transfer restrictions relating to the
Initial Securities and the provisions relating to the matters
described in Section 6 hereof) that would be registered under the
Securities Act. The Company shall use its best efforts to
cause such Exchange Offer Registration Statement to become
effective under the Securities Act within 210 days (or if the 210th
day is not a business day, the first business day thereafter) after
the Issue Date (the “Registered Exchange Effectiveness
Deadline”) of the Initial Securities and shall keep the
Exchange Offer Registration Statement effective for not less than
30 days (or longer, if required by applicable law) after the date
notice of the Registered Exchange Offer is mailed to the Holders
(such period being called the “Exchange Offer Registration
Period”).
If the Company effects the
Registered Exchange Offer, the Company will be entitled to close
the Registered Exchange Offer 30 days after the commencement
thereof; provided that the Company has
accepted all the Initial Securities
theretofore validly tendered in accordance with the terms of the
Registered Exchange Offer; and provided further that the Company
shall use its best efforts to close such Registered Exchange Offer
on or prior to 45 days (or longer if required by applicable law)
after the date on which the Exchange Offer Registration Statement
was declared effective by the Commission (the “Consummation
Deadline”).
Following the declaration of the
effectiveness of the Exchange Offer Registration Statement, the
Company shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable
each Holder of Transfer Restricted Securities (as defined in
Section 6 hereof) electing to exchange the Initial Securities
for Exchange Securities (assuming that such Holder is not an
affiliate of the Company within the meaning of the Securities Act,
acquires the Exchange Securities in the ordinary course of such
Holder’s business and has no arrangements with any person to
participate in the distribution of the Exchange Securities and is
not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such
Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without
material restrictions under the securities laws of the several
states of the United States.
The Company acknowledges that,
pursuant to current interpretations by the Commission’s staff
of Section 5 of the Securities Act, in the absence of an applicable
exemption therefrom, (i) each Holder which is a broker-dealer
electing to exchange Initial Securities, acquired for its own
account as a result of market making activities or other trading
activities, for Exchange Securities (an “Exchanging
Dealer”), is required to deliver a prospectus containing the
information set forth in (a) Annex A hereto on the cover, (b) Annex
B hereto in the “Exchange Offer Procedures” section and
the “Purpose of the Exchange Offer” section, and (c)
Annex C hereto in the “Plan of Distribution” section of
such prospectus in connection with a sale of any such Exchange
Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) an Initial Purchaser that elects
to sell Exchange Securities acquired in exchange for Initial
Securities constituting any portion of an unsold allotment is
required to deliver a prospectus containing the information
required by Items 507 or 508 of Regulation S-K under the Securities
Act, as applicable, in connection with such sale.
The Company shall use its reasonable
best efforts to keep the Exchange Offer 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 Securities; provided, however, that (i) in the case where
such prospectus and any amendment or supplement thereto must be
delivered by an Exchanging Dealer or an Initial Purchaser, such
period shall be the lesser of 180 days and the date on which all
Exchanging Dealers and the Initial Purchasers have sold all
Exchange Securities held by them (unless such period is extended
pursuant to Section 3(j) below) and (ii) the Company shall make
such prospectus and any amendment or supplement thereto, available
to any broker-dealer for use in connection with any resale of any
Exchange Securities for a period of not less than 90 days after the
consummation of the Registered Exchange Offer.
If, upon consummation of the
Registered Exchange Offer, any Initial Purchaser holds Initial
Securities acquired by it as part of its initial distribution, the
Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue
and deliver to such Initial Purchaser upon the written request of
such Initial Purchaser, in exchange (the “Private
Exchange”) for the Initial Securities held by such Initial
Purchaser, a like principal amount of debt securities of the
Company issued under the Indenture and identical in all material
respects (including the existence of restrictions on transfer under
the Securities Act and the securities laws of the several states of
the United States, but excluding provisions relating to the matters
described in Section 6 hereof) to the Initial Securities (the
“Private Exchange Securities”). The Initial
Securities, the Exchange Securities and the Private Exchange
Securities are herein collectively called the
“Securities”.
In connection with the Registered
Exchange Offer, the Company shall:
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(a) mail to each Holder a
copy of the prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of
transmittal and related documents;
(b) keep the Registered
Exchange Offer open for not less than 30 days (or longer, if
required by applicable law) after the date notice thereof is mailed
to the Holders;
(c) utilize the services
of a depositary for the Registered Exchange Offer with an address
in the Borough of Manhattan, The City of New York, which may be the
Trustee or an affiliate of the Trustee;
(d) permit Holders to
withdraw tendered Securities at any time prior to the close of
business, New York time, on the last business day on which the
Registered Exchange Offer shall remain open; and
(e) otherwise comply with
all applicable laws.
As soon as practicable after the
close of the Registered Exchange Offer or the Private Exchange, as
the case may be, the Company shall:
(x) accept for exchange
all the Securities validly tendered and not withdrawn pursuant to
the Registered Exchange Offer and the Private Exchange;
(y) deliver to the
Trustee for cancellation all the Initial Securities so accepted for
exchange; and
(z) cause the Trustee to
authenticate and deliver promptly to each Holder of the Initial
Securities, Exchange Securities or Private Exchange Securities, as
the case may be, equal in principal amount to the Initial
Securities of such Holder so accepted for exchange.
The Indenture will provide that the
Exchange Securities will not be subject to the transfer
restrictions set forth in the Indenture and that all the Securities
will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a
class separate from one another on any matter.
Interest on each Exchange Security
and Private Exchange Security issued pursuant to the Registered
Exchange Offer and in the Private Exchange will accrue from the
last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no
interest has been paid on the Initial Securities, from the date of
original issue of the Initial Securities.
Each Holder participating in the
Registered Exchange Offer shall be required to represent to the
Company that at the time of the consummation of the Registered
Exchange Offer (i) any Exchange Securities received by such
Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding
with any person to participate in the distribution of the
Securities or the Exchange Securities within the meaning of the
Securities Act, (iii) such Holder is not an
“affiliate,” as defined in Rule 405 of the Securities
Act, of the Company or if it is an affiliate, such Holder will
comply with the registration and prospectus delivery requirements
of the Securities Act to the extent applicable, (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 Exchange
Securities and (v) if such Holder is a broker-dealer, that it will
receive Exchange Securities for its own account in exchange for
Initial Securities that were acquired as a result of market-making
activities or other trading activities and that it will be required
to acknowledge that it will deliver a prospectus in connection with
any resale of such Exchange Securities.
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Notwithstanding any other provisions
hereof, the Company will ensure that (i) any Exchange Offer
Registration Statement and any amendment thereto and any prospectus
forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer Registration
Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and (iii) any
prospectus forming part of any Exchange Offer Registration
Statement, and any supplement to such prospectus, does not include
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
2. Shelf
Registration . If: (i) the Company is not (a) required to
file the Exchange Offer Registration Statement or (b) permitted to
consummate the Registered Exchange Offer because the Registered
Exchange Offer is not permitted by applicable law or Commission
policy; or (ii) any holder of Transfer Restricted Securities
notifies the Issuer prior to the 20 th business day
following the consummation of the Registered Exchange Offer that:
(a) it is prohibited by law or Commission policy from participating
in the Registered Exchange Offer; (b) it may not resell the
Exchange Securities acquired by it in the Registered Exchange Offer
to the public without delivering a prospectus and the prospectus
contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales or (c) it is a broker
dealer and owns Initial Securities acquired directly from the
Issuer or an affiliate of the Issuer, the Company shall take the
following actions:
(a) The Company shall, at
its cost, use its best efforts to file with the Commission a
registration statement (the “Shelf Registration
Statement” and, together with the Exchange Offer Registration
Statement, a “Registration Statement”) on an
appropriate form under the Securities Act relating to the offer and
sale of the Transfer Restricted Securities (as defined in Section 6
hereof) by the Holders thereof from time to time in accordance with
the methods of distribution set forth in the Shelf Registration
Statement and Rule 415 under the Securities Act (hereinafter, the
“Shelf Registration”) within 60 days (or if such 60
th day is not a business day, the first business day
thereafter) after so required or requested to file pursuant to this
Section 2 (the “Shelf Registration Filing Deadline”,
and together with the Registered Exchange Filing Deadline, the
“Filing Deadlines”) and to cause the Shelf Registration
Statement to be declared effective by the Commission within 180
days (or if such 180 th day is not a business day, the
first business day thereafter) after so required or requested to
file pursuant to this Section 2 (the “Shelf Registration
Effectiveness Deadline”, and together with the Registered
Exchange Effectiveness Deadline, the “Effectiveness
Deadlines”); provided, however, that no Holder (other than an
Initial Purchaser) shall be entitled to have the Securities held by
it covered by such Shelf Registration Statement unless such Holder
agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder.
(b) The Company shall use
its reasonable best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the prospectus
included therein to be lawfully delivered by the Holders of the
relevant Securities, for a period of two years (or for such longer
period if extended pursuant to Section 3(j) below) from the date of
its effectiveness or such shorter period that will terminate when
all the Securities covered by the Shelf Registration Statement (i)
have been sold pursuant thereto or (ii) are no longer restricted
securities (as defined in Rule 144 under the Securities Act, or any
successor rule thereof) (such period, the “Continuously
Effective Period”). The Company shall be deemed not to
have used its reasonable best efforts to keep the Shelf
Registration Statement effective during the requisite period if it
voluntarily takes any action that would result in Holders of
Securities covered thereby not being able to offer and sell such
Securities during that period, unless (x) such action is required
by applicable law, (y) such action is required by the Commission in
connection with any investigation of the Company by the Commission
or (z) such action is taken by the Company in good faith and
for valid business reasons (not including avoidance of the
Company’s obligation hereunder), including the
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acquisition or divestiture of
assets, so long as the Company promptly thereafter complies with
the requirements of Section 3(j) hereof, if applicable; provided,
that the Company shall not be entitled to rely on this clause (z)
for more than 90 days in the aggregate during any 12-month period
and no single period of reliance may last more than 45 consecutive
days (each such period referred to in the foregoing clauses (x),
(y) and (z), a “Suspension Period”); provided
that that upon the termination of such Suspension Period,
the Company shall promptly advise the Initial Purchaser and each
Holder of Transfer Restricted Securities that such Suspension
Period has been terminated; provided further that if
the Shelf Registration Statement ceases to be effective and/or the
use of the related prospectus is suspended pursuant to this Section
2(b), the Continuously Effective Period shall be extended by the
numbers of days such Suspension Period continued.
(c) Notwithstanding any
other provisions of this Agreement to the contrary, the Company
shall cause the Shelf Registration Statement and the related
prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the
applicable requirements of the Securities Act and the rules and
regulations of the Commission and (ii) not to contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
3. Registration
Procedures . In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any
Registered Exchange Offer contemplated by Section 1 hereof, the
following provisions shall apply:
(a) The Company shall
(i) furnish to each Initial Purchaser, prior to the filing
thereof with the Commission, a copy of the Registration Statement
and each amendment thereof and each supplement, if any, to the
prospectus included therein and, in the event that an Initial
Purchaser (with respect to any portion of an unsold allotment from
the original offering) is participating in the Registered Exchange
Offer or the Shelf Registration Statement, the Company shall use
its reasonable best efforts to reflect in each such document, when
so filed with the Commission, such comments as such Initial
Purchaser reasonably may propose; (ii) include the information set
forth in Annex A hereto on the cover, in Annex B hereto in the
“Exchange Offer Procedures” section and the
“Purpose of the Exchange Offer” section and in Annex C
hereto in the “Plan of Distribution” section of the
prospectus forming a part of the Exchange Offer Registration
Statement and include the information set forth in Annex D hereto
in the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; (iii) if requested by an Initial Purchaser, include
the information required by Items 507 or 508 of Regulation S-K
under the Securities Act, as applicable, in the prospectus forming
a part of the Exchange Offer Registration Statement;
(iv) include within the prospectus contained in the Exchange
Offer Registration Statement a section entitled “Plan of
Distribution,” reasonably acceptable to the Initial
Purchasers, which shall contain a summary statement of the
positions taken or policies made by the staff of the Commission
with respect to the potential “underwriter” status of
any broker-dealer that is the beneficial owner (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) of Exchange Securities received by
such broker-dealer in the Registered Exchange Offer (a
“Participating Broker-Dealer”), whether such positions
or policies have been publicly disseminated by the staff of the
Commission or such positions or policies, in the reasonable
judgment of the Initial Purchasers based upon advice of counsel
(which may be in-house counsel), represent the prevailing views of
the staff of the Commission; and (v) in the case of a Shelf
Registration Statement, include the names of the Holders, who
propose to sell Securities pursuant to the Shelf Registration
Statement, as selling securityholders.
(b) The Company shall
give written notice to the Initial Purchasers, the Holders of the
Securities and any Participating Broker-Dealer from whom the
Company has received prior written notice that it will be a
Participating Broker-Dealer in the Registered Exchange
Offer
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(which notice pursuant to clauses
(ii)-(v) hereof shall be accompanied by an instruction to suspend
the use of the prospectus until the requisite changes have been
made):
(i) when the Registration
Statement or any amendment thereto has been filed with the
Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by
the Commission for amendments or supplements to the Registration
Statement or the prospectus included therein or for additional
information;
(iii) of the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for
that purpose;
(iv) of the receipt by
the Company or its legal counsel of any notification with respect
to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of
any event that requires the Company to make changes in the
Registration Statement or the prospectus in order that the
Registration Statement or the prospectus do not contain an untrue
statement of a material fact nor omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the prospectus, in light of the
circumstances under which they were made) not
misleading.
(c) The Company shall use
its reasonable effort to obtain the withdrawal at the earliest
possible time, of any order suspending the effectiveness of the
Registration Statement.
(d) The Company shall
furnish to each Holder of Securities included within the coverage
of the Shelf Registration, without charge, at least one copy of the
Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits thereto (including
those, if any, incorporated by reference).
(e) The Company shall
deliver to each Exchanging Dealer and each Initial Purchaser, and
to any other Holder who so requests in writing, without charge, at
least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements
and schedules, and, if any Initial Purchaser or any such Holder
requests, all exhibits thereto (including those incorporated by
reference).
(f) The Company shall,
during the Shelf Registration Period, deliver to each Holder of
Securities included within the coverage of the Shelf Registration,
without charge, as many copies of the prospectus (including each
preliminary prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such person
may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of
the Securities in connection with the offering and sale of the
Securities covered by the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration
Statement.
(g) The Company shall
deliver to each Initial Purchaser, any Exchanging Dealer, any
Participating Broker-Dealer and such other persons required to
deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus included in
the Exchange Offer Registration Statement and any amendment or
supplement thereto as such persons may reasonably request.
The Company consents, subject to the provisions of this Agreement,
to
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the use of the prospectus or any
amendment or supplement thereto by any Initial Purchaser, if
necessary, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange
Offer in connection with the offering and sale of the Exchange
Securities covered by the prospectus, or any amendment or
supplement thereto, included in such Exchange Offer Registration
Statement.
(h) Prior to any public
offering of the Securities, pursuant to any Registration Statement,
the Company shall register or qualify or cooperate with the Holders
of the Securities included therein and their respective counsel in
connection with the registration or qualification of the Securities
for offer and sale under the securities or “blue sky”
laws of such states of the United States as any Holder of the
Securities reasonably requests in writing and do any and all other
acts or things necessary or advisable to enable the offer and sale
in such jurisdictions of the Securities covered by such
Registration Statement; provided, however, that the Company shall
not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any
action which would subject it to general service of process or to
taxation in any jurisdiction where it is not then so
subject.
(i) The Company shall
cooperate with the Holders of the Securities to facilitate the
timely preparation and delivery of certificates representing the
Securities to be sold pursuant to any Shelf Registration Statement
free of any restrictive legends and in such denominations and
registered in such names as the Holders may request a reasonable
period of time prior to sales of the Securities pursuant to such
Shelf Registration Statement.
(j) Upon the occurrence
of any event contemplated by paragraphs (ii) through (v) of
Section 3(b) above during the period for which the Company is
required to maintain an effective Registration Statement, other
than during a Suspension Period, the Company shall promptly prepare
and file a post-effective amendment to the Registration Statement
or a