Exhibit 2.2
SAR AND REGISTRATION RIGHTS AGREEMENT
BETWEEN
ROBBINS & MYERS, INC.
AND
EAGLE INDUSTRIAL PRODUCTS CORPORATION
Dated as of June 30, 1994
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS
1.1 Definitions. . . . . . . . . . . . . . . . . . . . .1
ARTICLE II - ISSUANCE OF RIGHTS; RIGHTS CERTIFICATES
2.1 Initial Issuance of Rights . . . . . . . . . . . . .7
2.2 Rights Certificates. . . . . . . . . . . . . . . . .7
2.3 Execution and Registration of Rights Certificates. .7
2.4 Exchanges and Transfers of Rights Certificates . . .8
2.5 Lost, Stolen, Destroyed or Mutilated Rights
Certificates . . . . . . . . . . . . . . . . . . . .8
ARTICLE III - EXERCISE OF RIGHTS
3.1 Exercise . . . . . . . . . . . . . . . . . . . . . .9
3.2 Payment for Rights; Method of Payment. . . . . . . .9
3.3 Cash Payment . . . . . . . . . . . . . . . . . . . 10
3.4 Share Payment. . . . . . . . . . . . . . . . . . . 10
3.5 Payment Following Triggering Event . . . . . . . . 10
3.6 Purchase and Sale of Shares by R&M or an Affiliate .11
ARTICLE IV - REDEMPTION OF RIGHTS
4.1 Redemption . . . . . . . . . . . . . . . . . . . . 11
4.2 Cash Payment . . . . . . . . . . . . . . . . . . . 11
4.3 Share Payment. . . . . . . . . . . . . . . . . . . 11
4.4 Effectiveness of the Redemption. . . . . . . . . . 12
ARTICLE V - ADJUSTMENT OF RIGHTS
5.1 Adjustment . . . . . . . . . . . . . . . . . . . . 12
5.2 Adjustment Upon Issuance or Sale of
Additional Shares. . . . . . . . . . . . . . . . . 12
5.3 Adjustment Upon Subdivision or Combination
of Shares. . . . . . . . . . . . . . . . . . . . . 14
5.4 Effect of Reorganization, Reclassification,
Consolidation or Merger. . . . . . . . . . . . . . 14
5.5 Adjustment Certificate . . . . . . . . . . . . . . 16
5.6 Issuance of New Rights Certificates. . . . . . . . 16
5.7 Notice of Certain Events . . . . . . . . . . . . . 16
5.8 Other Dilutive Events. . . . . . . . . . . . . . . 16
ARTICLE VI - EXPIRATION OF RIGHTS
6.1 Expiration of Rights . . . . . . . . . . . . . . . 17
6.2 Payment Upon Expiration of Rights. . . . . . . . . 17
6.3 Cash Payment . . . . . . . . . . . . . . . . . . . 17
6.4 Share Payment. . . . . . . . . . . . . . . . . . . 17
ARTICLE VII - RESTRICTIONS ON TRANSFER OF RIGHTS AND RIGHTS
SHARES
7.1 General Restrictions on Transfer . . . . . . . . . 18
7.2 Legend for Rights Certificates . . . . . . . . . . 18
7.3 Legend for Rights Shares . . . . . . . . . . . . . 19
7.4 Additional Restriction on Transfer of Rights . . . 20
7.5 Refusal Right. . . . . . . . . . . . . . . . . . . 20
ARTICLE VIII - DEMAND REGISTRATION RIGHT
8.1 Exercise of Demand Registration Right. . . . . . . 22
8.2 Filing of Demand Registration Statement. . . . . . 22
8.3 Obligations of Holders of Rights Shares. . . . . . 26
8.4 Delay of Demand Registration Statement . . . . . . 26
8.5 Withdrawal of Exercise of Demand
Registration Right . . . . . . . . . . . . . . . . 26
8.6 Designation of Underwriter . . . . . . . . . . . . 27
8.7 Expenses . . . . . . . . . . . . . . . . . . . . . 27
8.8 Holdback Agreements. . . . . . . . . . . . . . . . 27
ARTICLE IX - INCIDENTAL REGISTRATION RIGHTS
9.1 Notice of Incidental Registration Statement. . . . 27
9.2 Exercise of Right. . . . . . . . . . . . . . . . . 28
9.3 Obligations of Holders of Rights Shares. . . . . . 28
9.4 Limitation on Incidental Registration Rights . . . 29
9.5 Withdrawal of Exercise of Rights . . . . . . . . . 30
9.6 Withdrawal of Registration Statement . . . . . . . 30
9.7 Managing Underwriter . . . . . . . . . . . . . . . 30
9.8 Expenses . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE X - INDEMNIFICATION WITH RESPECT TO REGISTRATION AND
CONTRIBUTION
10.1 Indemnification. . . . . . . . . . . . . . . . . . 31
10.2 Contribution . . . . . . . . . . . . . . . . . . . 33
10.3 Limitation of Market Activity. . . . . . . . . . . 34
ARTICLE XI - PREEMPTION RIGHTS
11.1 Notice . . . . . . . . . . . . . . . . . . . . . . 34
11.2 Preemption Rights. . . . . . . . . . . . . . . . . 34
ARTICLE XII - REPRESENTATIONS AND WARRANTIES
12.1 Representations and Warranties of R&M. . . . . . . 36
12.2 Representations and Warranties of Eagle. . . . . . 37
ARTICLE XIII - MISCELLANEOUS
13.1 Amendment. . . . . . . . . . . . . . . . . . . . . 39
13.2 Further Assurances . . . . . . . . . . . . . . . . 39
13.3 Assignability. . . . . . . . . . . . . . . . . . . 39
13.4 Counterparts; Headings . . . . . . . . . . . . . . 39
13.5 Entire Agreement . . . . . . . . . . . . . . . . . 39
13.6 Waiver . . . . . . . . . . . . . . . . . . . . . . 39
13.7 Severability . . . . . . . . . . . . . . . . . . . 40
13.8 Resolution of Disputes . . . . . . . . . . . . . . 40
13.9 Notices. . . . . . . . . . . . . . . . . . . . . . 40
13.10 Cumulative Remedies. . . . . . . . . . . . . . . . 42
13.11 Governing Law. . . . . . . . . . . . . . . . . . . 42
SAR AND REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made this 30th day of June, 1994
between ROBBINS & MYERS, INC., an Ohio corporation ("R&M"), and
EAGLE INDUSTRIAL PRODUCTS CORPORATION, a Delaware corporation
("Eagle"), under the following circumstances:
A. R&M, Eagle and O.D.E. Manufacturing Inc. have
entered into an Amended and Restated Stock Purchase
Agreement dated as of June 29, 1994 pursuant to which
R&M has agreed to purchase the outstanding capital
stock of certain subsidiaries of Eagle and, as partial
consideration for such purchase, to issue to Eagle or
an Affiliate of Eagle certain stock appreciation rights
with respect to 2,000,000 shares (subject to adjustment
as herein provided) of the common stock of R&M.
B. R&M and Eagle now desire to set forth the
terms of, and to provide for the issuance of, such
rights.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. When used with initial capital
letters in the Agreement, the following terms shall have the
following meanings:
"Affiliate" means any person now or hereafter directly
or indirectly controlling, controlled by, or under common control
with a party, and includes, without limitation, any person of
which at least 20% of the voting power or equity is directly or
indirectly controlled by such party or the ultimate parent-entity
of such party.
"Associate" shall have the meaning given the term in
Rule 405 adopted under the Securities Act.
"Authorized Employee Plan" means any plan adopted by
R&M prior to May 26, 1994 pursuant to which Shares may be issued
to employees or directors of R&M or any Affiliate of R&M,
provided, however, any amendment to such a plan that would
increase the number of Shares authorized for issuance under such
a plan, excluding an amendment pursuant to the terms of the Plan
existing on May 26, 1994 to reflect an adjustment for Share
dividends, splits, or similar dilutive corporate events, shall
not be deemed to increase the number of authorized Shares for
purposes of this Agreement; a list of such plans and the maximum
number of Shares that may be issued under each such plan (subject
to adjustment in accordance with the terms of the plan) is
attached as Exhibit B.
"Base Price" means $23 per Share, subject to adjustment
as provided in Article V.
"Beneficially Owned" means, with respect to any
securities and any person: (i) such securities which are owned,
directly or indirectly, by the person or by any of the person's
Affiliates or Associates, (ii) such securities which the person
or any of the person's Affiliates or Associates has (A) the right
to acquire (whether such right is exercisable immediately or only
after the p!ssage of time) pursuant to any agreement, arrangement
or understanding, or upon the exercise of conversion rights,
exchange rights, rights, warrants or options, or otherwise or (B)
the right to vote pursuant to any agreement, arrangement or
understanding (whether or not in writing) unless the agreement,
arrangement or understanding to vote such security (1) arises
solely from a revocable proxy or consent given in response to a
public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations of the
Exchange Act and (2) is not also then reportable by such person
on Schedule 13D under the Exchange Act; or (iii) such securities
which are Beneficially Owned, directly or indirectly, by any
other person with which such person or any of such person's
Affiliates or Associates has any agreement, arrangement or
understanding (whether or not in writing) for the purpose of
acquiring, holding, voting (except as described in clause B of
the foregoing clause (ii)) or disposing of the securities that
are Beneficially Owned.
"Block of Rights" means 100,000 whole Rights, subject
to adjustment as provided in Article V.
"Business Day" means any day, other than a Saturday,
Sunday or day on which banking institutions in the State of Ohio
are authorized or obligated by law or executive order to close.
"Cash Payment" is defined in Section 3.2.
"Closing" means the closing of the transactions
contemplated by the Stock Purchase Agreement.
"Closing Date" means the date on which the Closing
occurs.
"Credit Agreement" means the Credit Agreement among R&M
and certain of its subsidiaries as Borrowers, Bank One, Dayton,
NA, as Agent, and Bank One, Dayton, NA and National City Bank,
Columbus, as Banks, entered into in June 1994 and any agreement
providing for the refunding or refinancing of indebtedness under
such Credit Agreement.
"Demand Registration Right" means the right of the
holders of Rights Shares to require R&M to file a Demand
Registration Statement, as described in Article VIII.
"Demand Registration Statement" means a registration
statement filed with the SEC under the Securities Act on Form S-
1, S-2 or S-3 (or similar successor form) with respect to the
offering of Rights Shares for cash.
"Disposition" is defined in Section 7.5(a).
"Disputed Matter" is defined in Section 13.8.
"Eagle" means Eagle Industrial Products Corporation, a
Delaware corporation.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Exercise Date" is defined in Section 3.1.
"Exercise Payment" is defined in Section 3.2.
"Expiration Date" means June 30, 2000.
"Expiration Payment" is defined in Section 6.2.
"Incidental Registration Right" means the right of the
holders of Rights Shares to require R&M to include Rights Shares
in an Incidental Registration Statement, as described in Article
IX.
"Incidental Registration Statement" means a
registration statement filed with the SEC under the Securities
Act on Form S-1, S-2 or S-3 (or similar successor form) with
respect to the offering of Shares for cash on either a best-
efforts or firm-commitment basis, whether or not the offering is
for R&M's own account. An "Incidental Registration Statement"
does not include a registration statement with respect to Shares
(i) issued as payment in connection with any acquisition of all
or any part of a business to any seller of a business, (ii)
issued in exchange for other securities of R&M or any other
person, (iii) issued or issuable upon the exercise of stock
options or warrants, (iv) issued or issuable upon conversion of
any convertible securities, or (v) issued or issuable in
connection with any employee benefit plan of R&M or any
subsidiary.
"Indemnified Claim" is defined in Article X.
"Indemnified Party" is defined in Article X.
"Indemnifying Party" is defined in Article X.
"Independent Appraiser" means a person or firm
experienced in the valuation of the type of property to be valued
and if the parties hereto do not agree on the selection of one
appraiser, then R&M shall select one appraiser and the holders of
at least a majority of Rights or Rights Shares, as the case may
be, involved in the particular determination of value shall
select another appraiser and the two selected appraisers shall
select a third; when three appraisers are employed, the
arithmetic average of appraised values set forth in the reports
of the three appraisers shall be determined, the appraised value
which differs most from such arithmetic average shall no longer
be considered, and then the arithmetic average of the two
remaining appraised values shall be determined, with the result
being the value as determined by the Independent Appraiser for
purposes of this Agreement.
"Market Value" means the last sale price of a Share on
the last trading day immediately preceding the date as of which
Market Value is being determined, as reported on The NASDAQ, Inc.
National Market System; or if no sales take place on such date,
the average of the reported closing bid and asked prices on such
date as reported on such system; or if the Shares no longer are
traded on such system, as reported on such other trading system
or exchange as may constitute the principal market for the
Shares; or if the Shares no longer are traded on any trading
system or exchange, then Market Value shall be determined by the
Independent Appraiser.
"Maximum Spread" means $17 per Share, subject to
adjustment as provided in Article V.
"Maximum Spread Price" means $40 per Share, subject to
adjustment as provided in Article V.
"MHM" means M.H.M. Co., Ltd., an Ohio limited
partnership, whose address is 830 Hanna Building, Cleveland, Ohio
44115.
"Number Adjustment Fraction" is defined in Section
5.2(a).
"Other Securities" means shares of capital stock (other
than Shares) or other securities of R&M or any other person which
are issued by R&M or any successor upon the exercise of Rights in
lieu of or in addition to Shares, in accordance with Article V.
"Payment Date" means the date on which payment for
Rights is to be made pursuant to Section 3.2 or Section 6.2.
"Preemption Right" means the right provided for in
Article XI.
"Preemption Transaction" means the offer or sale for
cash or any other consideration by R&M of (i) any unissued
Preferred Shares; (ii) any securities convertible, either
directly or indirectly and with or without consideration, into
Preferred Shares ("Preferred Convertible Securities"); or (iii)
any rights, options or warrants to purchase any Preferred Shares
or Preferred Convertible Securities.
"Preemption Transaction Notice" means a written notice
by R&M of a proposed Preemption Transaction, which shall set
forth the terms and conditions of such transaction.
"Preferred Shares" means any capital shares of R&M that
have a preference over the Shares in the payment of dividends or
distributions on dissolution.
"Price Adjustment Fraction" is defined in Section
5.2(a).
"R&M" means Robbins & Myers, Inc., an Ohio corporation.
"Redemption Date" is defined in Section 4.1.
"Redemption Notice" is defined in Section 4.1.
"Redemption Payment" is defined in Section 4.1.
"Refusal Right" is defined in Article VIII.
"Rights" means the stock appreciation rights issued
pursuant to Article II.
"Rights Certificate" is defined in Section 2.2.
"Rights Shares" means all Shares and/or Other
Securities issued upon the exercise of Rights and all Shares
and/or Other Securities into which such Shares may be converted,
for which they may be exchanged or which may be issued with
respect thereto, whether incident to a stock dividend, stock
split, stock combination, merger, consolidation or other
reorganization.
"SEC" means the United States Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Share Payment" is defined in Section 3.2.
"Shares" means the Common Shares, without par value, of
R&M.
"Spread" means the amount, if any, by which the average
of the Market Value of a Share on each of the first 10 of the
last 15 trading days prior to the date of determination exceeds
the Base Price per Share; provided, however, that unless
otherwise expressly provided, the Spread shall never exceed the
Maximum Spread.
"Stock Purchase Agreement" means the Stock Purchase
Agreement dated as of May 26, 1994 between R&M, Eagle and O.D.E.
Manufacturing Inc.
"Subordinated Notes" means the $50,000,000 Senior
Subordinated Extendible Exchangeable Reset Notes issued by R&M in
June 1994 or any notes issued in place of, or in exchange for,
such notes.
"Transfer Notice" is defined in Section 7.5.
"Triggering Event" means the occurrence of any of the
following events: (i) any "person" (as defined in Section 13(d)
of the Exchange Act), other than R&M, an entity then controlled
by R&M, or MHM is or becomes the beneficial owner, directly or
indirectly, of securities of R&M representing 20% or more of the
combined voting power of the then outstanding securities of R&M,
without considering any voting securities of R&M which such
person acquired directly from R&M (other than pursuant to a stock
dividend or split); (ii) any "person" (as defined in Section
13(d) of the Exchange Act), other than R&M, an entity then
controlled by R&M, or MHM is or becomes the beneficial owner,
directly or indirectly, of securities of R&M representing 35% or
more of the combined voting power of R&M's then outstanding
securities, including all securities such person acquired
directly from R&M; (iii) during any period of two consecutive
years, individuals who at the beginning of such period were
directors of R&M cease for any reason to constitute at least a
majority of the directors of R&M unless the election, or the
nomination for the election by R&M's shareholders, of each new
director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the
beginning of the period; (iv) R&M merges or consolidates with
another corporation or entity and R&M, or an entity controlled by
R&M immediately prior to the merger or consolidation, is not the
surviving entity in the merger or consolidation, or if R&M or
such an entity is the surviving entity in the merger or
consolidation, holders of 80% or more of the voting power of R&M
immediately prior to the merger or consolidation do not own,
immediately after the merger or consolidation, 65% or more of the
voting power of the surviving entity; (v) a sale, lease, exchange
or other disposition of all or substantially all of R&M's assets;
or (vi) a liquidation or dissolution of R&M.
ARTICLE II
ISSUANCE OF RIGHTS; RIGHTS CERTIFICATES
2.1 Initial Issuance of Rights. At the Closing, R&M
shall issue 2,000,000 Rights to Eagle and shall execute and
deliver to Eagle or an Affiliate of Eagle one or more Rights
Certificates, registered in the name of Eagle or an Affiliate of
Eagle, evidencing the Rights so issued. At least five days prior
to the Closing Date, Eagle shall notify R&M in writing of the
number of Rights Certificates Eagle desires to have delivered to
it or an Affiliate of Eagle at the Closing and the number of
Rights to be evidenced by each such Rights Certificate, which
shall be in increments of a whole Block of Rights and shall
aggregate 2,000,000 Rights.
2.2 Rights Certificates. The Rights issued under this
Agreement shall be evidenced by one or more separate certificates
("Rights Certificates") in substantially the form of Exhibit A to
this Agreement. The Rights Certificates may have such marks of
identification or designation and such other legends, summaries
or endorsements printed thereon as R&M deems appropriate and as
are not inconsistent with the provisions of this Agreement, or as
may be required to comply with any law or any rule or regulation
adopted thereunder. Subject to the provisions of Section 5.6,
all Rights Certificates, whenever issued, shall be dated as of
the Closing Date; provided, however, that Rights Certificates
evidencing Rights transferred or issued after the Closing Date
also may be dated to reflect the date of transfer or issuance.
Each Rights Certificate shall state on its face the number of
Rights evidenced by such certificate, which shall be in
increments of a whole Block of Rights.
2.3 Execution and Registration of Rights Certificates.
(a) Each Rights Certificate shall be executed on behalf of R&M
by its Chairman of the Board, President or any Vice President and
by its Secretary, Treasurer or any Assistant Secretary.
(b) R&M shall keep books for registration and transfer
of Rights Certificates issued pursuant to this Agreement at its
principal executive office. Such books shall show for each
outstanding Rights Certificate: (i) the name and address of the
registered holder of the certificate, (ii) the number of Rights
evidenced by the certificate, (iii) the date of issuance of the
certificate, and (iv) the certificate number of the certificate.
The Company will not at any time prior to the sixth business day
after the Expiration Date, except upon the dissolution,
liquidation or winding up of the Company, close such books so as
to result in preventing or delaying the exercise or transfer of
Rights to the extent provided herein.
(c) For all purposes whatsoever, R&M may treat the
person in whose name a Rights Certificate is registered as the
owner of the Rights Certificate and the Rights evidenced by the
Rights Certificate, notwithstanding any notice to the contrary.
2.4 Exchanges and Transfers of Rights Certificates.
At any time after the Closing and prior to the Expiration Date,
the registered holder of any Rights Certificate may surrender the
Rights Certificate to R&M, in person or by duly authorized
attorney, for transfer or for split up or combination with or
exchange for another Rights Certificate or Rights Certificates.
Any registered holder desiring to transfer a Rights Certificate
shall surrender the Rights Certificate to R&M with the attached
form of assignment (or enclose with such Rights Certificate a
written instrument of transfer in form reasonably satisfactory to
R&M), duly executed by the registered holder or his attorney duly
authorized in writing, and with the signature duly guaranteed.
Any registered holder desiring to split up, combine or exchange
any Rights Certificate shall deliver a written request to that
effect to R&M, together with the Rights Certificate(s) to be
split up, combined or exchanged. Upon receipt of any such Rights
Certificate(s) and assignment or request for split up,
combination or exchange in form reasonably satisfactory to R&M,
R&M shall prepare and execute a Rights Certificate or Rights
Certificates as so requested and deliver such certificate(s) to
the registered holder or the designated transferee. R&M may
require that the registered holder of the Rights Certificate(s)
surrendered pay any tax or other governmental charge that may be
imposed in connection with the action to be taken but shall not
require any additional service charge or other fee from the
registered holder in connection with such action being taken.
2.5 Lost, Stolen, Destroyed or Mutilated Rights
Certificates. Upon receipt by R&M of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation
of a Rights Certificate and of indemnity or security reasonably
satisfactory to it and reimbursement of all reasonable expenses
of R&M incidental thereto, R&M shall execute and deliver a new
Rights Certificate of like tenor to the registered owner to
replace the Rights Certificate so lost, stolen, destroyed or
mutilated.
ARTICLE III
EXERCISE OF RIGHTS
3.1 Exercise. (a) During the period commencing on
January 1, 1995 and ending on the Expiration Date, a registered
holder of Rights may exercise such Rights, in whole or in part
(but only in increments of a whole Block of Rights or the
remaining Rights held by a person holding less than a Block of
Rights), at any time or from time to time, by surrendering the
Rights Certificate(s) evidencing the Rights to be exercised to
R&M with the exercise form on the Rights Certificate(s) completed
and duly executed (with the signature guaranteed). No Rights may
be exercised prior to January 1, 1995 or after the Expiration
Date. The exercise will be deemed to have been made on the date
that the registered holder delivers the Rights Certificate(s)
with the exercise form duly completed and delivered (the
"Exercise Date") to R&M in accordance with Section 13.9 of this
Agreement provided the date R&M actually receives the exercise
form is within five days of the date the registered holder
executed the exercise form. If any of the payment for the Rights
is to be made to anyone other than the registered holder, the
exercise form shall be completed to show the name, address, and
identification number or social security number of the person or
persons to whom payment is to be made.
(b) Effective upon the Exercise Date, the Rights being
exercised shall terminate and thereafter shall represent only the
right to receive the Exercise Payment on the Payment Date. Upon
any partial exercise of the Rights evidenced by a Rights
Certificate, R&M will issue and deliver to or upon the order of
the registered holder of the Rights a new Rights Certificate
evidencing the remaining unexpired Rights evidenced by the Rights
Certificate which was surrendered.
(c) Notwithstanding anything in this Article III to
the contrary, no Rights may be exercised after a Redemption
Notice has been given by R&M.
3.2 Payment for Rights; Method of Payment. Upon any
exercise of Rights, R&M shall pay to the registered holder of the
Rights being exercised or such person's assignee an amount (the
"Exercise Payment") equal to the number of Rights being exercised
multiplied by the Spread calculated as of the Exercise Date. The
Exercise Payment shall be made, at R&M's sole discretion, by (i)
paying the Exercise Payment in cash (a "Cash Payment"), or (ii)
issuing or transferring a number of Shares (a "Share Payment"),
rounded up to the nearest whole Share, determined by dividing
the Exercise Payment by the Market Value of a Share on the
Exercise Date, or (iii) making a combination of a Cash Payment
and a Share Payment yielding the same aggregate amount as the
Exercise Payment. As soon as practicable, R&M shall notify the
registered holder of the Rights being exercised as to whether R&M
will make the Exercise Payment with a Cash Payment, a Share
Payment or a combination of both, and shall state the amount of
cash and/or the number of Rights Shares to be issued, a schedule
showing how the Exercise Payment was calculated, and the Payment
Date on which payment will be made (which shall be not later than
10 Business Days after the Exercise Date). Notwithstanding the
foregoing, however, if any Rights are exercised prior to June 30,
1995, R&M may defer making the Exercise Payment (the amount of
which, nevertheless, shall be calculated as of the Exercise
Date) until a later date selected by R&M, which shall be not
later than June 30, 1995.
3.3 Cash Payment. If all or any portion of an
Exercise Payment is to be made by a Cash Payment, on the Payment
Date R&M shall cause the amount of cash (less any amount R&M is
required by law to withhold from such payment) to be paid by wire
transfer of immediately available funds to the account specified
by the registered holder of the Rights.
3.4 Share Payment. If all or any portion of an
Exercise Payment is to be made by a Share Payment, on the Payment
Date R&M shall cause to be issued in the name of, and delivered
to, the registered holder of the Rights, or as such holder
otherwise has directed, a certificate or certificates for the
number of fully-paid and non-assessable Shares as constitute the
Share Payment (less any amount R&M is required to withhold from
such payment), with each certificate dated as of the Exercise
Date. Each certificate so delivered shall be in such authorized
denomination as may be requested by the registered holder of the
Rights that were exercised and shall bear any legend required by
Article VII.
3.5 Payment Following Triggering Event.
Notwithstanding any other provision of this Agreement to the
contrary, if Rights are exercised within 30 days after the
occurrence of a Triggering Event or if a Triggering Event occurs
after exercise but before payment, R&M shall make the Exercise
Payment with a Cash Payment only (and not with a Share Payment or
a combination of a Cash Payment and a Share Payment); provided,
however, if at the time such Cash Payment is required to be made
pursuant to this Section 3.5, R&M is not permitted under the
terms of the Credit Agreement or the Subordinated Notes to make
such Cash Payment, then a Share Payment shall be made; provided,
however, any person who exercised his SARs anticipating a Cash
Payment on account of a Triggering Event may, within two business
days after receiving actual notice from R&M that a Share Payment
rather than a Cash Payment will be made, revoke his exercise and
such exercise shall be deemed of no force and effect.
Immediately after R&M has actual knowledge of the occurrence of a
Triggering Event, R&M shall give notice to holders of SARs that a
Triggering Event has occurred and shall advise such holders,
based on information then available to R&M, whether Cash Payments
or Share Payments would be made if the holder exercised his SARs
within 30 days after the occurrence of a Triggering Event.
3.6 Purchase and Sale of Shares by R&M or an
Affiliate. In the event R&M intends to purchase or sell Shares
in a public trading system or exchange (other than pursuant to an
offering registered under the Securities Act) or R&M has
knowledge that an Affiliate of R&M intends such a purchase or
sale (other than pursuant to SEC Rule 144) then, R&M shall give
written notice of any such intended purchase or sale transaction
to Eagle at least five days prior to the execution of any such
transaction, unless Eagle waives in writing the requirement of
the giving of such notice. Eagle shall be entitled at any time
to request and receive information concerning R&M's purchases and
sales of Shares or present intention with respect to the same.
ARTICLE IV
REDEMPTION OF RIGHTS
4.1 Redemption. If the average Market Value of a
Share during any period of 20 consecutive trading days after
December 31, 1994 equals or exceeds the Maximum Spread Price,
R&M, within five Business Days after the end of any such 20-day
period, may redeem all (and not less than all) of the outstanding
Rights by giving written notice of the redemption (a "Redemption
Notice") to each registered holder of Rights. On the date
specified in the Redemption Notice (the "Redemption Date"), which
shall be within five Business Days after the Redemption Notice is
given, R&M shall redeem the outstanding Rights by paying an
amount to each registered holder of such Rights equal to the
number of Rights held by such holder multiplied by the Maximum
Spread (the "Redemption Payment"). The Redemption Payment shall
be made, in R&M's sole discretion, by (i) making a Cash Payment
equal to the Redemption Payment, or (ii) issuing a Share Payment
(rounded up to the nearest whole Share) determined by dividing
the Redemption Payment by the Maximum Spread Price, or (iii)
making a combination of a Cash Payment and a Share Payment
yielding the same aggregate amount as the Redemption Payment.
4.2 Cash Payment. If all or any portion of the
Redemption Payment is to be made by a Cash Payment, on the
Redemption Date R&M shall cause the amount of cash (less any
amount R&M is required by law to withhold from such payment) to
be paid by wire transfer of immediately available funds to the
account specified by the registered holder of the Rights.
4.3 Share Payment. If all or any portion of the
Redemption Payment is to be made by a Share Payment, on the
Redemption Date R&M shall cause to be issued in the name of, and
delivered to, the registered holder of the Rights, a certificate
or certificates for the number of fully-paid and non-assessable
Shares as constitute the Share Payment (less any amount R&M is
required by law to withhold from such payment), with each
certificate dated as of the Redemption Date. Each certificate so
delivered shall be in such authorized denomination as may be
requested by the registered holder of the Rights and shall bear
any legend required by Article VII.
4.4 Effectiveness of the Redemption. Effective on the
Redemption Date and the making of the Redemption Payment, all
outstanding Rights shall terminate and be of no further force and
effect.
ARTICLE V
ADJUSTMENT OF RIGHTS
5.1 Adjustment. The outstanding Rights, the Base
Price, the Maximum Spread, the Maximum Spread Price and the
number of Rights constituting a Block of Rights shall be adjusted
from time to time as provided in this Article V.
5.2 Adjustment Upon Issuance or Sale of Additional
Shares. (a) If R&M issues or sells any Shares, other than
pursuant to an Authorized Employee Plan, for no consideration or
for a consideration per Share that is less than the Market Value
of a Share immediately prior to the issuance or sale, the
outstanding Rights, the Base Price, the Maximum Spread, the
Maximum Spread Price and the number of Rights constituting a
Block of Rights shall be adjusted as follows:
(i) Each outstanding Right shall be adjusted to
be a number of Rights determined by multiplying 1 by
the Number Adjustment Fraction (calculated as hereafter
provided). The number of Rights constituting a Block
of Rights shall be adjusted to be equal to the number
of Rights which, prior to the issuance or sale,
constituted a Block of Rights, multiplied by the Number
Adjustment Fraction. The Base Price, the Maximum
Spread and the Maximum Spread Price shall be adjusted
by multiplying the amounts which, prior to the issuance
or sale, were the Base Price, the Maximum Spread and
the Maximum Spread Price, respectively, by the Price
Adjustment Fraction (calculated as hereafter provided).
(ii) The "Number Adjustment Fraction" for an
adjustment shall be a fraction, the numerator of which
is the Market Value of a Share immediately prior to the
issuance or sale of the additional Shares for which the
adjustment is being made, multiplied by the number of
Shares outstanding immediately after the issuance or
sale, and the denominator of which is the sum of: (A)
the Market Value of a Share immediately prior to the
issuance or sale, multiplied by the number of Shares
outstanding immediately prior to the issuance or sale,
and (B) the price, if any, at which the additional
Shares are being issued or sold, multiplied by the
number of additional Shares being issued or sold. The
"Price Adjustment Fraction" for an adjustment shall be
the reciprocal of the Number Adjustment Fraction.
(b) For purposes of making adjustments pursuant to
Section 5.2(a), the following provisions shall apply:
(i) If the additional Shares are issued or sold
for cash, the consideration received by R&M for
purposes of the adjustment shall be deemed to be the
net cash proceeds received by R&M for such Shares after
deducting all commissions paid by R&M in connection
with the issuance or sale, including all underwriter's
discount, concession, or reallowance.
(ii) If the additional Shares are issued or sold
for consideration other than cash (and other than upon
conversion or exchange of other securities of R&M), the
consideration received by R&M for purposes of the
adjustment shall be deemed to be the value of such
consideration, as reasonably determined by the Board of
Directors of R&M.
(iii) If the additional Shares are issued as a
dividend, the aggregate number of Shares issued in
payment of such dividend shall be deemed, for purposes
of the adjustment, to have been issued on the day
following the record date for determination of the
shareholders entitled to receive the dividend.
(iv) If R&M issues or sells any options or rights
to subscribe (other than the Rights and other than
options or rights granted under an Authorized Employee
Plan) that are exercisable for a consideration per
Share that is less than the Market Value of a Share on
the date immediately prior to the issuance or sale of
such options or rights, the issuance or sale of such
options or rights shall be deemed, for purposes of the
adjustment, to be the issuance at such time of the
maximum number of Shares that may be acquired upon
exercise of such options or rights (whether or not then
exercisable) at the consideration per Share, if any,
that is payable thereunder plus the consideration, if
any that R&M received for such options or rights.
(v) If R&M issues or sells any securities (other
than options or rights) that are convertible into or
exchangeable for Shares at a consideration per Share
that is less than the Market Value of a Share on the
date immediately prior to the issuance or sale of such
securities, the issuance or sale of such securities
shall be deemed, for purposes of the adjustment, to be
the issuance at such time of the maximum number of
Shares that may be acquired upon conversion or exchange
of such securities (whether or not then convertible or
exchangeable) for consideration equal to the net
consideration received by R&M for such securities after
deducting all commissions (including all underwriter's
discount, concession, or reallowance) paid by R&M in
connection with the issuance or sale of such securities
plus the consideration, if any, to be received by R&M
upon the exchange or conversion.
(vi) Upon expiration of any options or rights to
subscribe or termination of any right to convert or
exchange for which an adjustment was made upon issuance
or sale under this Section 5.2, another adjustment
shall be made in order to eliminate the effect of the
earlier adjustment as it related to those options,
rights to subscribe, conversion rights or exchange
rights that terminated or expired unexercised.
(vii) The number of Shares outstanding shall not
include, for purposes of the adjustment, any Shares
held in R&M's treasury or any Shares which may be
issued or sold upon the exercise of options or other
rights heretofore or hereafter granted under an
Authorized Employee Plan, but shall include the
aggregate number of Shares deliverable upon the
exercise of all other outstanding options, rights to
subscribe (other than the Rights) and other securities
that are convertible into or exchangeable for Shares
(whether or not then exercisable).
5.3 Adjustment Upon Subdivision or Combination of
Shares. If R&M at any time subdivides the Shares, the
outstanding Rights and the number of Rights constituting a Block
of Rights thereupon shall be proportionately increased and the
Base Price, the Maximum Spread and the Maximum Spread Price
thereupon shall be proportionately decreased. If R&M at any time
combines the Shares, the outstanding Rights and the number of
Rights constituting a Block of Rights thereupon shall be
proportionately decreased and the Base Price, the Maximum Spread
and the Maximum Spread Price thereupon shall be proportionately
increased.
5.4 Effect of Reorganization, Reclassification,
Consolidation or Merger. (a) If a capital reorganization or
reclassification of the capital stock of R&M, a consolidation,
merger or share exchange of R&M with another corporation or
entity or the sale of all or substantially all of R&M's assets to
another corporation is effected in such a way that holders of
Shares are entitled to receive Other Securities with respect to
or in exchange for Shares, then the Market Value of a Share for
purposes of this Agreement thereafter shall be the sum of (i) the
Market Value of a Share, if the Shares were not given up by the
holders in such reorganization, reclassification, consolidation,
merger or share exchange, and (ii) the value of the Other
Securities (after issuance of the same) to which the holder of a
Share was entitled to receive in such reorganization,
reclassification, consolidation, merger or share exchange and, as
a condition of such reorganization, reclassification,
consolidation, merger, share exchange or sale, lawful and
adequate provision shall be made so that if R&M (or its
successor) thereafter makes a Share Payment with respect to the
Rights, the payment for each Right so paid shall be a combination
of Shares (if the Shares were not given up by the holders in such
reorganization, reclassification, consolidation, merger or share
exchange) and Other Securities in the same proportion as are held
after the reorganization, reclassification, consolidation,
merger, share exchange or sale with respect to each Share
outstanding immediately prior to such transaction. In any such
case, appropriate provisions shall be made with respect to the
rights and interests of the holders of the Rights to the end that
the provisions for adjustments provided for in this Article V
thereafter shall be applicable in relation to any Shares or Other
Securities thereafter deliverable upon exercise of the Rights.
(b) In the event of a merger or consolidation of R&M
with or into another corporation or entity, a share exchange of
R&M with another corporation or the sale of all or substantially
all of R&M's assets, as a result of which a number of Other
Securities of the surviving or purchasing corporation greater or
less than the number of Shares of R&M outstanding immediately
prior to such merger, consolidation, share exchange or purchase
are issuable to holders of Shares, an adjustment shall be made
under Section 5.3 in the same manner as though there were a sub-
division or combination of the outstanding Shares.
(c) R&M shall not effect any such consolidation,
merger, share exchange or sale unless, prior to the consummation
thereof, the successor corporation or entity (if other than R&M)
resulting from such consolidation or merger or the corporation
exchanging shares or purchasing such assets shall assume, by
written instrument mailed or delivered to each registered holder
of a Right at the last address of such holder appearing on the
books of R&M, the obligation to deliver to each such holder such
Other Securities to which, in accordance with the foregoing
provisions, such holder may be entitled, and, in the case of a
merger or consolidation, agrees to assume all other obligations
of R&M under this Agreement, including without limitation, the
obligations under Article 8.
5.5 Adjustment Certificate. Whenever any adjustment
is made as provided in Section 5.2, Section 5.3 or Section 5.4,
R&M shall mail to each registered holder of Rights a certificate
signed by an officer of R&M and showing in reasonable detail the
adjustment to be made, the facts requiring the adjustment and the
outstanding Rights, the number of Rights constituting a Block of
Rights, the Base Price, the Maximum Spread and the Maximum Spread
Price both before and after the adjustment. Unless at least a
majority of the holders of the Rights object to the adjustments
shown on such certificate within ten days of the holders receipt
of the same, such adjustments as shown on such certificate shall
be final for purposes of this Agreement.
5.6 Issuance of New Rights Certificates. R&M may, at
its option, issue new Rights Certificates evidencing outstanding
Rights in such form as may be approved by its Board of Directors
(which shall replace and be in lieu of the outstanding Rights
Certificates) to reflect any adjustment or change in the Rights
made in accordance with this Article V. If R&M determines to
issue new Rights Certificates in accordance with the foregoing
sentence, R&M shall so notify the registered holders of the
outstanding Rights Certificates, who then shall be required to
surrender such outstanding Rights Certificates to R&M within a
reasonable period of time after such notice, as determined by
R&M, for replacement by R&M with the new form of Rights
Certificates so approved.
5.7 Notice of Certain Events. R&M shall give to each
registered holder of Rights at least 10 days prior written notice
of the record date for (i) any dividend or other distribution
declared with respect to the Shares, (ii) any subscription rights
offered pro rata to the holders of the Shares to acquire any
additional Shares or other securities, (iii) any capital
reorganization or reclassification of R&M's capital stock or any
consolidation, merger or share exchange of R&M with, or sale of
all or substantially all of R&M's assets to, another person, or
(iv) any voluntary or involuntary dissolution, liquidation or
winding up of R&M, or (v) any action to be taken by R&M not
identified in this Section 5.7, which would require an adjustment
with respect to the Rights under Article V of this Agreement.
5.8 Other Dilutive Events. If any event shall occur
as to which the other provisions of this Article V are not
strictly applicable but the failure to make any adjustment would
not maintain the economic value of the Rights in accordance with
the essential intent and principles hereof then, in each such
case, the Independent Appraiser shall be appointed and shall give
its opinion upon the adjustment, if any, on a basis consistent
with the essential intent and principles established in this
Article V, necessary to preserve, without dilution, the economic
value of the Rights measured in terms of the fair value thereof
immediately prior to such event.
ARTICLE VI
EXPIRATION OF RIGHTS
6.1 Expiration of Rights. All Rights that have not
been exercised prior to the Expiration Date shall expire on the
Expiration Date, and thereafter shall represent only the right to
receive the Expiration Payment.
6.2 Payment Upon Expiration of Rights. Upon
expiration of the Rights pursuant to Section 6.1, R&M shall pay
to each registered holder of such Rights an amount equal to the
number of Rights held by such holder multiplied by the Spread as
of the Expiration Date (the "Expiration Payment"). The
Expiration Payment shall be made, in R&M's sole discretion, by
(i) making a Cash Payment equal to the Expiration Payment, or
(ii) issuing a Share Payment (rounded up to the nearest whole
Share) determined by dividing the Expiration Payment by the
Market Value of a Share on the Expiration Date, or (iii) making a
combination of a Cash Payment and a Share Payment yielding the
same aggregate amount as the Expiration Payment. As soon as
practicable after the Expiration Date, R&M shall notify the
registered holders of the Rights that were outstanding on such
date as to whether R&M will make the Expiration Payment with a
Cash Payment, a Share Payment or a combination of both, and shall
state the amount of cash and/or the number of Rights Shares to be
issued, state in reasonable detail how the Expiration Payment was
calculated and the Payment Date, which shall be within 10
Business Days after the Expiration Date.
6.3 Cash Payment. If all or any part of the
Expiration Payment is to be made by a Cash Payment, on the
Payment Date R&M shall cause the amount of cash (less any amount
R&M is required by law to withhold from such payment) to be paid
by wire transfer of immediately available funds to the account
specified by the registered holder of the Rights.
6.4 Share Payment. If all or any portion of the
Expiration Payment is to be made by a Share Payment, on the
Payment Date R&M shall cause to be issued in the name of, and
delivered to, the registered holder of the Rights, a certificate
of certificates for the number of fully-paid and non-assessable
Shares as constitute the Share Payment (less any amount R&M is
required to withhold from such payment), with each certificate
dated as of the Expiration Date. Each certificate so delivered
shall be in such authorized denomination as may be requested by
the registered holder of the Rights and shall bear any legend
required by Article VII.
ARTICLE VII
RESTRICTIONS ON TRANSFER
OF RIGHTS AND RIGHTS SHARES
7.1 General Restrictions on Transfer. (a)
Notwithstanding any other provision of this Agreement to the
contrary, no Rights or Rights Shares may be transferred unless
all applicable conditions set forth in this Article VII are
satisfied. The provisions of this Article VII are intended,
among other things, to assure compliance with the requirements of
the Securities Act with respect to any transfers of Rights and
Rights Shares.
(b) No Rights or Rights Shares may be transferred
unless and until (i) the transfer has been duly registered under
the Securities Act and all applicable state securities laws, or
(ii) the registered holder of the Rights or the Rights Shares to
be transferred delivers, at such person's expense, a written
opinion addressed to R&M from counsel reasonably acceptable to
R&M to the effect that the proposed transfer may be effected
without registration under the Securities Act or any applicable
state securities laws. Notwithstanding the preceding sentence,
the Rights may be transferred upon the death of a holder or to a
holder's spouse or lineal descendants during the holder's
lifetime. In addition, without the consent of R&M or any opinion
of counsel, any holder of Rights or Rights Shares may transfer
all or part of the Rights or Shares to any Affiliate of such
holder or holders, to any employee of such holder or holders, to
any employee of any Affiliate of such holder or holders, to any
successor to such holder or holders by operation of law or to any
person that purchases all or substantially all the assets of such
holder or holders.
(c) The restrictions set forth in Section 7.1(b) shall
cease to apply to Rights or Rights Shares if the legend described
in Section 7.2 is not present on the Rights Certificate
evidencing the Rights or if the legend described in Section 7.3
is not present on the certificate evidencing the Rights Shares,
as the case may be, in accordance with Section 7.2 and Section
7.3, respectively.
7.2 Legend for Rights Certificates. Except as
otherwise provided in this Section 7.2, each Rights Certificate
initially issued by R&M shall bear a legend in substantially the
following form when issued:
"The securities evidenced hereby have not
been registered under the Securities Act of
1933, as amended (the "Act"), or any state
securities laws, and may not be sold or
transferred unless registered under the Act
and all applicable state securities laws or
unless an exemption from such registration
requirements is available at the time of
transfer. Transfer of the securities
evidenced hereby is subject to the
restrictions set forth in Article VII of the
SAR and Registration Rights Agreement dated
as of June 30, 1994 between Robbins & Myers,
Inc. and Eagle Industrial Products
Corporation, a copy of which will be mailed
to the holder of this certificate within five
days after a written request therefor is
delivered to Robbins & Myers, Inc., 1400
Kettering Tower, Dayton, Ohio 45423."
Any Rights Certificate issued at any time upon transfer of, or in
exchange for or replacement of, any Rights Certificate bearing
such legend also shall bear such legend unless the holder of the
Rights Certificate delivers to R&M, at such person's expense, a
written opinion addressed to R&M of counsel reasonably acceptable
to R&M to the effect that the Rights represented by such Rights
Certificate need no longer be subject to the restrictions
contained in Section 7.1(b).
7.3 Legend for Rights Shares. Each certificate
representing Rights Shares issued upon exercise of Rights shall
bear a legend in substantially the following form, unless at the
time of exercise such Rights Shares have been registered under
the Securities Act:
"The securities evidenced hereby have not
been registered under the Securities Act of
1933, as amended (the "Act"), or any state
securities laws, and may not be sold or
transferred unless registered under the Act
and all applicable state securities laws or
unless an exemption from such registration
requirements is available at the time of
transfer. Transfer of the securities
evidenced hereby is subject to the
restrictions set forth in Article VII of the
SAR and Registration Rights Agreement dated
as of June 30, 1994 between Robbins & Myers,
Inc. and Eagle Industrial Products
Corporation, a copy of which will be mailed
to the holder of this certificate within five
days after a written request therefor is
delivered to Robbins & Myers, Inc., 1400
Kettering Tower, Dayton, Ohio 45423."
Any certificate for Rights Shares issued at any time upon
transfer of, or in exchange for or replacement of, any
certificate for Rights Shares bearing such legend also shall bear
such legend unless the holder of the certificate delivers to R&M,
at such person's expense, a written opinion addressed to R&M of
counsel reasonably acceptable to R&M to the effect that the
securities represented by such certificate need no longer be
subject to the restrictions contained in Section 7.1(b).
7.4 Additional Restriction on Transfer of Rights. (a)
In addition to the restrictions on transfer of the Rights and
Rights Certificates set forth in Section 7.1(b), prior to
June 30, 2000, neither Eagle nor any Affiliate of Eagle shall
transfer any Rights or Rights Shares to any person (other than to
a person exercising the Refusal Right described in Section 7.5 or
to an Affiliate of Eagle) if, after such transfer, the aggregate
number of Shares Beneficially Owned by the transferee and the
transferee's Affiliates and Associates upon exercise of Rights
Beneficially Owned by such persons would exceed 5% of the number
of Shares then outstanding, as shown in the most recent report
filed by R&M with the SEC pursuant to the Exchange Act which
states the number of Shares outstanding (assuming, solely for
purposes of the calculation, that all of such Rights then are
exercisable and, upon exercise, R&M would issue a number of
Shares determined by multiplying the number of Rights by the
Maximum Spread and dividing the results by the Maximum Spread
Price).
(b) Each Rights Certificate and certificate evidencing
Rights Shares issued by R&M to Eagle or any Affiliate of Eagle
prior to June 30, 2000 shall bear substantially the following
legend when issued:
"Transfer of the securities evidenced hereby
is subject to certain restrictions with
respect to the persons to whom the securities
may be transferred, as set forth in Section
7.4 of the SAR and Registration Rights
Agreement dated as of June 30, 1994 between
Robbins & Myers, Inc. and Eagle Industrial
Products Corporation, a copy of which will be
mailed to the holder of this certificate
within five days after a written request
therefor is delivered to Robbins & Myers,
Inc., 1400 Kettering Tower, Dayton, Ohio
45423."
7.5 Refusal Right. (a) In addition to the other
restrictions on transfer of the Rights and Rights Shares set
forth in this Article VII, prior to June 30, 2000, neither Eagle
nor any Affiliate of Eagle shall sell, assign, pledge or
otherwise transfer (a "Disposition") any Rights or Rights Shares
to any person who is not an Affiliate of Eagle without first
delivering a written notice (the "Transfer Notice") to R&M and to
MHM at least 10 days prior to the proposed Disposition. The
Transfer Notice shall describe the proposed Disposition fully,
including the number of Rights or Rights Shares proposed to be
transferred, the proposed transfer price and the name and address
of the proposed transferee. The Transfer Notice shall be signed
by both the holder of the Rights Shares to be transferred and the
proposed transferee. R&M shall have the right (a "Refusal
Right") to purchase all of the Rights or Rights Shares subject to
the Transfer Notice on the terms and conditions of the
Disposition described in the Transfer Notice by delivering a
notice of exercise to the holder of the Rights or Rights Shares
covered by the Transfer Notice at any time within the 10-day
period after R&M actually receives the Transfer Notice; provided,
however, that if R&M does not exercise the Refusal Right within
such period, MHM may exercise the Refusal Right by delivering a
notice of exercise to the holder of the Rights or Rights Shares
covered by the Transfer Notice at any time within such 10-day
period.
(b) If R&M or MHM exercises the Refusal Right, the
holder of the Rights or Rights Shares subject to the Transfer
Notice shall transfer the Rights or Rights Shares to R&M or MHM,
as the case may be, on the same terms and conditions as the
Disposition described in the Transfer Notice; provided, however,
that if the Transfer Notice provides for payment for the Rights
or Rights Shares other than in cash at the closing, R&M or MHM
(as the case may be) shall have the option of paying the fair
market value cash equivalent (as determined by the Independent
Appraiser) of the consideration described in the Transfer Notice.
(c) If neither R&M nor MHM exercises the Refusal Right
within the periods specified in Section 7.5(a), the holder of the
Rights or Rights Shares covered by the Transfer Notice may, not
later than 180 days following the date the Transfer Notice was
delivered to R&M and MHM, conclude the Disposition described in
the Transfer Notice (subject, however, to any other restrictions
imposed by this Agreement) on the terms and conditions described
therein; provided, however, that the price at which the
Disposition is concluded may be less than the price set forth in
the Transfer Notice, but not less than 90% of such price. Any
proposed Disposition on terms and conditions different from those
set forth in the preceding sentence shall again be subject to the
Refusal Right of R&M and MHM in accordance with Section 7.5(a).
(d) Each Rights Certificate and certificate evidencing
Rights Shares issued by R&M to Eagle or any Affiliate of Eagle
prior to June 30, 2000 shall bear substantially the following
legend when issued:
"The securities evidenced hereby are subject
to a right of first refusal applicable to any
proposed sale or transfer, as set forth in
Section 7.5(a) of the SAR and Registration
Rights Agreement dated as of June 30, 1994
between Robbins & Myers, Inc. and Eagle
Industrial Products Corporation, a copy of
which will be mailed to the holder of this
certificate within five days after a written
request therefor is delivered to Robbins &
Myers, Inc., 1400 Kettering Tower, Dayton,
Ohio 45423."
ARTICLE VIII
DEMAND REGISTRATION RIGHT
8.1 Exercise of Demand Registration Right. During the
period from January 1, 1995 through December 31, 2002, the
registered holders of at least a majority of the outstanding
Rights Shares may exercise Demand Registration Rights by giving
written notice to R&M at least 40 days prior to the proposed date
of filing (but no more than one such notice involving an
underwritten offering may be given in a 15-month period if a
Demand Registration Statement becomes effective as a result of
such notice being given), setting forth the number of Rights
Shares to be included in the Demand Registration Statement and
the proposed date of filing of the Demand Registration Statement.
Upon receipt of the written notice, R&M promptly shall send a
copy of such notice to each registered holder of Rights Shares
who did not exercise the Demand Registration Right. The holders
of Rights Shares shall have three Demand Registration Rights
hereunder, which become effective under the Securities Act,
provided, however, only two of the Demand Registration Rights may
involve firm-commitment offerings (it being understood that the
other Demand Registration Right would not involve a firm
commitment underwriting).
8.2 Filing of Demand Registration Statement. Upon
exercise of the Demand Registration Right pursuant to Section
8.1, R&M shall use its best efforts to:
(a) prepare and file within 40 days a Demand
Registration Statement with respect to the Rights
Shares as to which the Demand Registration Right was
exercised together with all other Rights Shares as to
which the registered holders have requested R&M include
in the Demand Registration Statement within 15 days
after the giving of the notice by R&M referred to in
Section 8.1;
(b) cause the Demand Registration Statement to
become effective as promptly as possible;
(c) qualify the Rights Shares registered on the
Demand Registration Statement for offer and sale in
accordance with the securities laws of the
jurisdictions reasonably designated by the holders of a
majority of the Rights Shares to be registered;
(d) maintain the effectiveness of the Demand
Registration Statement and the other qualifications for
a period, not exceeding 180 (exclusive of anytime
period that effectiveness was suspended due to action
by R&M) days in the case of a firm-commitment
underwriting and as long as permitted under SEC rules
and regulations applicable to continuous offerings (but
in no event more than three years) in the case of a
best-efforts offering, during which a prospectus is
required to be delivered in connection with sales of
the Rights Shares registered on the Demand Registration
Statement;
(e) amend or supplement the Demand Registration
Statement and prospectus as necessary to comply with
the Securities Act and other applicable laws and
regulations;
(f) provide a reasonable number of copies of the
Demand Registration Statement (including exhibits),
preliminary prospectus, final prospectus and any
amendments or supplements thereto to the holders of the
Rights Shares registered on the Demand Registration
Statement, upon request;
(g) permit and facilitate the public
underwriting, offering and sale of the Rights Shares
registered on the Demand Registration Statement;
(h) cause all such Rights Shares to be listed on
each securities exchange on which similar securities
issued by R&M are then listed and to be qualified for
trading on each system on which similar securities
issued by R&M are from time to time qualified;
(i) provide a transfer agent and registrar for
all such Rights Shares not later than the effective
date of such registration statement and thereafter
maintain such a transfer agent and registrar; and
otherwise cooperate with the sellers of the Rights
Shares and the managing underwriter to facilitate the
timely preparation and delivery of certificates
representing the Rights Shares to be sold and not
bearing any restrictive legends, and enable such Rights
Shares to be in such denominations and registered in
such names as the managing underwriter may reasonably
request at least two business days prior to any sale of
Rights Shares to the underwriters;
(j) 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 Rights Shares being sold or the
underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Rights
Shares including without limitation:
(i) making such representations and
warranties to the underwriters in form, substance
and scope, reasonably satisfactory to the managing
underwriter, as are customarily made by issuers to
underwriters in primary underwritten offerings;
(ii) obtaining opinions and updates thereof
of counsel which counsel and opinions (in form,
scope and substance) shall be reasonably
satisfactory to the managing underwriter,
addressed to the managing underwriter covering the
matters customarily covered in opinions requested
in underwritten offerings and such other matters
as may be reasonably requested by the managing
underwriter;
(iii) causing the underwriting agreements to
set forth in full the indemnification provisions
and procedures of Article X (or such other
substantially similar provisions and procedures as
are customary in offerings involving the managing
underwriter) with respect to all parties to be
indemnified pursuant to said Section; and
(iv) delivering such documents and
certificates as may be reasonably requested by the
sellers of Rights Shares to evidence compliance
with the provisions of this Section 8.2 and with
any customary conditions contained in the
underwriting agreement or other related agreement
entered into by R&M.
(k) make available for inspection by any
underwriter participating in any disposition pursuant
to such registration statement and any attorney,
accountant or other agent retained by any such
underwriter, all financial and other records, pertinent
corporate documents and properties of R&M, and cause
R&M's officers, directors, employees and independent
accountants to be available on a reasonable basis and
cooperate with such parties' "due diligence" and to
supply all information reasonably requested by any such
underwriter, attorney, accountant or agent in
connection with such registration statement;
(l) otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC, and
make available to its security holders, as soon as
reasonably practicable, an earnings statement covering
the period of at least twelve months beginning with the
first day of R&M's first day of R&M's first full
calendar quarter after the effective date of
registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(m) permit any holder of Rights Shares which
holder, in its sole and exclusive judgment, might be
deemed to be an underwriter or a controlling person of
R&M, to participate in the preparation of such
registration or comparable statement and to require the
insertion therein of material, furnished to R&M in
writing, which in the reasonable judgment of such
holder and its counsel should be included;
(n) make available appropriate management
personnel for participation in the preparation and
drafting of such registration or comparable statement,
for due diligence meetings and for "road show"
meetings;
(o) 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 Shares included in such
registration statement for sale in any jurisdiction,
R&M will use its reasonable best efforts promptly to
obtain the withdrawal of such order; and
(p) obtain a cold comfort letter from R&M's
independent public accountants addressed to the selling
holders of Rights Shares in customary from and covering
such matters of the type customarily covered by cold
comfort letters as the holders of a majority of the
Rights Shares being sold reasonably request.
8.3 Obligations of Holders of Rights Shares. (a)
Each holder of Rights Shares to be included in the Demand
Registration Statement filed by R&M shall provide the following
to R&M in writing:
(i) all information within the possession or knowledge
of such holder required by the applicable rules and
regulations of the SEC and any applicable state securities
laws concerning the proposed method of sale or other
disposition of the Rights Shares being registered and the
identity of and compensation to be paid to any proposed
underwriter(s) to be employed in connection therewith; and
(ii) if the Rights Shares are to be sold and
distributed over a period of time, or from time to time,
such undertaking as R&M and its counsel reasonably may
require in order to assure full compliance with the
Securities Act and the Exchange Act.
(b) If during the effectiveness of the Demand
Registration Statement, an intervening event occurs which, in the
reasonable opinion of R&M's counsel, makes the prospectus
included in the Demand Registration Statement no longer comply
with the Securities Act, R&M shall so notify the holders of the
Rights Shares registered on the Demand Registration Statement and
such holders shall make no further offers or sales or other
dispositions of Rights Shares under the Demand Registration
Statement until they receive from R&M a new, amended or
supplemented prospectus complying with the Securities Act. R&M
shall keep such holders fully informed as to the status of its
efforts to cause a new, amended or supplemented prospectus to be
made available for use by such holders.
8.4 Delay of Demand Registration Statement. R&M may
delay the filing or effectiveness of a Demand Registration
Statement for an initial period of up to 60 days after the
proposed filing date specified in the notice referred to in
Section 8.1 and thereafter may extend such delay for an
additional period of up to 30 days if (and only if), with respect
to each such delay, the Board of Directors of R&M, in the good
faith exercise of its business judgment, reasonably determines
(as set forth in a resolution of the Board of Directors) that the
filing or effectiveness of the Demand Registration Statement or
the offering of Rights Shares thereunder would have a material
adverse effect on a pending financing, acquisition, disposition
of assets or other material transaction of R&M.
8.5 Withdrawal of Exercise of Demand Registration
Right. The holders of a majority of the Rights Shares to be
registered on the Demand Registration Statement may withdraw the
exercise and cause R&M either not to file or to withdraw the
filing of a Demand Registration Statement at any time prior to
the effectiveness of the Demand Registration Statement.
8.6 Designation of Underwriter. If the offering under
the Demand Registration Statement is to be made on an
underwritten basis, the managing underwriter of the offering
shall be designated by the holders of a majority of the Rights
Shares being registered, and the terms of such underwriting shall
be mutually satisfactory to the holders of at least a majority of
the Rights Shares being registered.
8.7 Expenses. Underwriting commissions and all other
expenses (including, without limitation: (i) registration,
filing and listing fees, (ii) printing expenses, (iii) expenses
of audits or accounting services incident to such registration
that would not have otherwise been incurred, and (iv) fees and
expenses of counsel for the holders of the Rights Shares being
registered, incurred in connection with any offering or attempted
offering pursuant to a Demand Registration Statement shall be
paid by the holders of the Rights Shares being registered on a
pro rata basis, based on the respective number of Rights Shares
being registered on behalf of each such holder. R&M shall be
responsible for the fees and expenses of any counsel retained by
it.
8.8 Holdback Agreements. R&M agrees (a) not to effect
any public sale or distribution of its equity securities, or any
securities convertible into or exchangeable or exercisable for
such securities, during the 30-day period prior to and during the
90-day period beginning on the effective date of any underwritten
Demand Registration Statement, except pursuant to (i)
registrations on Form S-8 or any successor form, or (ii)
registrations on Form S-4 or any successor form (unless the
underwriters managing the registered public offering otherwise
agree), and (b) to use its reasonable efforts to obtain
agreements from its officers, directors and affiliated
shareholders (including, without limitation, each holder of more
than 5% in number or value of the outstanding Shares), 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.
ARTICLE IX
INCIDENTAL REGISTRATION RIGHTS
9.1 Notice of Incidental Registration Statement.
During the period from January 1, 1995 through December 31, 2002,
if any Rights Shares are outstanding, R&M shall notify the
registered holders of the outstanding Rights Shares at least 60
days prior to the proposed filing by R&M of any Incidental
Registration Statement.
9.2 Exercise of Right. (a) After R&M gives notice of
the proposed filing of an Incidental Registration Statement in
accordance with Section 9.1, any holders of outstanding Rights
Shares may exercise an Incidental Registration Right by notifying
R&M of the intention of such holders to include all or any of the
Rights Shares held by them in the Incidental Registration
Statement at least 30 days prior to the date R&M has proposed to
file the Incidental Registration Statement. If R&M timely
receives such notices with respect to at least a majority of the
outstanding Rights Shares, R&M shall:
(i) include the Rights Shares owned by such
holders for which notice was given in the Incidental
Registration Statement;
(ii) use its best efforts to cause the Incidental
Registration Statement to become effective with the SEC
as expeditiously as possible;
(iii) use its best efforts to qualify the Shares,
including the Rights Shares, covered by the Incidental
Registration Statement for offer and sale in accordance
with the securities laws of such jurisdictions as R&M
and the holders of at least a majority of the Rights
Shares being registered determine; and
(iv) the provisions of Section 8.2(d) through (p)
which are applicable to a Demand Registration Statement
shall also be applicable to an Incidental Registration
Statement.
The holders of Rights Shares shall have two Incidental
Registration Rights hereunder which become effective under the
Securities Act.
9.3 Obligation of Holders of Rights Shares. (a) Each
holder of Rights Shares to be included in the Incidental
Registration Statement filed by R&M shall provide the following
to R&M in writing:
(i) all information within the possession or knowledge
of such holder required by the applicable rules and
regulations of the SEC and any applicable state securities
laws concerning the proposed method of sale or other
disposition of the Rights Shares being registered and the
identity of and compensation to be paid to any proposed
underwriter(s) to be employed in connection therewith; and
(ii) if the Shares covered by the Incidental
Registration Statement, including the Rights Shares, are to
be sold and distributed over a period of time, or from time
to time, such undertaking as R&M and its counsel reasonably
may require in order to assure full compliance with the
Securities Act and the Exchange Act.
(b) If during the effectiveness of the Incidental
Registration Statement, an intervening event occurs which, in the
reasonable opinion of R&M's counsel, makes the prospectus
included in the Incidental Registration Statement no longer
comply with the Securities Act, R&M shall so notify the holders
of the Rights Shares registered on the Incidental Registration
Statement, and such holders thereafter shall make no further
offers or sales or other dispositions of Rights Shares under the
Incidental Registration Statement until they receive from R&M a
new, amended or supplemented prospectus complying with the
Securities Act. R&M shall keep such holders fully informed as to
the status of its efforts to cause a new, amended or supplemented
prospectus to be made available for use by such holders.
9.4 Limitation on Incidental Registration Rights. R&M
shall not be required to:
(a) include in any Incidental Registration
Statement any Rights Shares unless the holders of such
Rights Shares accept the terms of the underwriting as
determined by R&M and its managing underwriter; or
(b) if the Rights Shares exceed 10% of all of the
Shares (including the Rights Shares included in the
Incidental Registration Statement), include in any
Incidental Registration Statement any Rights Shares, to
the extent that such inclusion would, in the reasonable
judgment of the managing underwriter of the offering,
as set forth in a written statement to such effect,
materially and adversely affect the price of the Shares
in the offering or the amount of the proceeds of the
offering that R&M had anticipated it would receive.
In the event that the number of Shares owned by all selling
shareholders, including the Rights Shares, which may be included
in any Incidental Registration Statement is limited for any reason
(including, without limitation, the reasons specified in
subparagraphs (b) or (c) above), then Rights Shares shall be
included in the Incidental Registration Statement on a pro rata
basis (based on the number of Rights Shares specified for
inclusion by each holder of Rights Shares and the number of Shares
other than Rights Shares to be registered) with the Shares of all
other selling shareholders, if any, to be included in the
Incidental Registration Statement.
9.5 Withdrawal of Exercise of Right. The holders of at
least a majority of the Rights Shares being registered on an
Incidental Registration Statement may withdraw an exercise of the
Incidental Registration Right hereunder with respect to such
Incidental Registration Statement by giving notice of the
withdrawal at any time prior to the filing of the pricing
amendment or the mailing of a prospectus in accordance with Rule
430A with respect to the Incidental Registration Statement;
provided, however, that the holders of the Rights Shares which
were to be included in the Incidental Registration Statement shall
reimburse R&M for the reasonable expenses actually incurred by R&M
in connection with the attempted exercise and the withdrawal of
the exercise (including, without limitation, R&M's expense in
revising the Incidental Registration Statement).
9.6 Withdrawal of Registration Statement. R&M may
withdraw any Incidental Registration Statement at any time prior
to its effectiveness.
9.7 Managing Underwriter. If the offering under an
Incidental Registration Statement is to be made on an underwritten
basis, R&M shall designate the managing underwriter and, subject
to the provisions of this Agreement, the terms and conditions of
such underwriting shall be determined by R&M.
9.8 Expenses. (a) Underwriting commissions incurred
in connection with any offering pursuant to an Incidental
Registration Statement shall be paid pro rata by R&M and the
selling shareholders, including the holders of the Rights Shares
included in the Incidental Registration Statement, on the basis of
the respective numbers of Shares registered on such Incidental
Registration Statement.
(b) All other expenses incurred in connection with any
offering pursuant to an Incidental Registration Statement shall be
paid by R&M including, without limitation: (i) registration,
filing and listing fees, (ii) printing expenses, (iii)
underwriting commissions or fees (except as otherwise provided in
Section 9.8(a)), (iv) expenses of audits or accounting services
incident to such registration, and (v) fees and expenses of
counsel for R&M, except that the holders the Rights Shares
included on the Incidental Registration Statement shall be
responsible for (A) the fees and expenses of any counsel retained
by them, and (B) their pro rata share of any expenses incurred in
any jurisdiction in which the offering is qualified that requires
the expenses incurred in so qualifying the offering be borne by
the selling shareholder under the circumstances of the offering.
ARTICLE X
INDEMNIFICATION WITH RESPECT TO
REGISTRATION AND CONTRIBUTION
10.1 Indemnification. (a) To the extent permitted by
law, R&M and each selling shareholder, including each holder of
Rights Shares included in a Demand Registration Statement or an
Incidental Registration Statement (a "Selling Shareholder"), shall
indemnify: (i) R&M, (ii) each Selling Shareholder, and (iii) each
person who is deemed to "control" R&M and each Selling Shareholder
under the Securities Act including, without limitation, any
officer or director of R&M and any other Selling Shareholder who
signs an Incidental Registration Statement in such capacity
(collectively, a "Controlling Person") (R&M, each such Selling
Shareholder and each such Controlling Person hereinafter sometimes
is referred to individually as an "Indemnified Party") from and
against any losses, claims, damages or liabilities (but not
amounts paid in settlement of any such loss, claim, damage or
liability if such settlement is effected without the consent of
the Indemnifying Party, which consent may not be unreasonably
withheld) (collectively, "Indemnified Claims"), insofar as such
Indemnified Claims arise out of, or are based upon:
(1) any untrue statement or alleged untrue
statement of a material fact contained in any
Incidental Registration Statement or Demand
Registration Statement, related prospectus or
preliminary prospectus, or any amendment or supplement
thereto (collectively, "Offering Documents"); or
(2) the omission or alleged omission to state in
any Offering Documents a material fact required to be
stated in any Offering Documents or necessary to make
the statements in any Offering Documents not
misleading,
and shall reimburse each other Indemnified Party for any legal or
other expenses reasonably incurred by any such Indemnified Party
in investigating, preparing to defend or defending any such
Indemnified Claim, provided that:
(1) R&M shall not be liable to any Indemnified
Party to the extent that any such Indemnified Claim
arises out of or is based upon any untrue statement,
alleged untrue statement, omission or alleged omission
made in reliance upon written information furnished to
R&M by such Indemnified Party for inclusion in any
Offering Documents;
(2) each Selling Shareholder shall be liable for
any Indemnified Claim only to the extent that such
Indemnified Claim arises out of or is based upon any
untrue statement, alleged untrue statement, omission or
alleged omission made in reliance upon written
information furnished to R&M by such Selling
Shareholder for inclusion in any Offering Documents;
and
(3) the indemnity and reimbursement provided for
in this subdivision shall be in addition to any
liability which any Indemnified Party may otherwise
have to any other Indemnified Party.
(b) If any Indemnified Party receives notice of an
Indemnified Claim, it shall promptly give notice of such
Indemnified Claim to each other Indemnified Party against whom it
proposes to make a claim for indemnity or reimbursement with
respect to such Indemnified Claim ("Indemnifying Party"). The
failure of any Indemnified Party to promptly notify an
Indemnifying Party of an Indemnified Claim shall not relieve the
Indemnifying Party of any liability which it may have to such
Indemnified Party in connection with such Indemnified Claim,
except to the extent such failure adversely affects the ability
of the Indemnifying Party to defend, settle or satisfy the claim.
(c) Each Indemnifying Party shall be entitled to
participate with the Indemnified Parties in the defense of any
Indemnified Claim.
(d) If a lawsuit or other proceeding or investigation
is brought against an Indemnified Party and such Indemnified
Party notifies the Indemnifying Parties of the commencement
thereof, the Indemnifying Parties shall be entitled to
participate therein and, to the extent that it shall choose,
assume the defense thereof, with counsel satisfactory to such
Indemnified Party, and, after notice from the Indemnifying
Parties to such Indemnified Party of their election so to assume
the defense thereof, the Indemnifying Parties shall not be liable
to such Indemnified Party under these indemnification provisions
for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such Indemnified Party, in
connection with the defense thereof other than reasonable costs
of investigation; provided that if (i) the Indemnifying Parties
shall have failed to assume the defense of such action or
proceeding or shall have failed to employ counsel reasonably
satisfactory to such Indemnified Party in any action or
proceeding; or (ii) the named parties to any such action or
proceeding include both such Indemnified Party and the
Indemnifying Parties, and such Indemnified Party shall have been
advised by counsel in writing (with a copy to the Indemnifying
Parties) that there may be one or more defenses available to such
Indemnified Party which are different from or additional to those
available to the Indemnifying Parties or if counsel faces a
conflict of interest representing both Indemnified and
Indemnifying Parties, then, in either case, if the Indemnified
Party notifies the Indemnifying Parties in writing that it elects
to employ separate counsel, such separate counsel shall be at the
expense of the Indemnifying Parties and the Indemnifying Parties
shall not have the right to assume the defense of such action or
proceeding on behalf of such Indemnified Person. The
Indemnifying Parties shall reimburse such expenses as they are
incurred. In any event, unless there exists a conflict among
Indemnified Parties, the Indemnifying Parties shall not, in
connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys at any time for all such
Indemnified Parties. The Indemnifying Parties will not be
subject to any liability for any settlement made without their
consent. No Indemnifying Party shall, without the consent of the
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.
10.2 Contribution. (a) In order to provide for the
just and equitable contribution in circumstances under which the
indemnity provided for in this Article X is for any reason held
to be unenforceable by the Indemnified Parties though applicable
in accordance with its terms, each applicable Indemnifying Party,
in lieu of indemnifying such Indemnified Party, shall contribute
to the amount paid or payable by such Indemnified Party as a
result of any losses, claims, damages, liabilities or expenses of
a nature contemplated by such indemnity in such proportion as is
appropriate to reflect not only the relative benefits received by
the Indemnifying Parties and the Indemnified Parties, but also to
reflect the relative fault of the Indemnifying and Indemnified
Parties in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations;
provided, however, that, in any such case, no Selling Shareholder
shall be required to contribute any amount in excess of the
purchase price of all such Shares offered pursuant to such
registration statement, and no person guilty of a fraudulent
misrepresentation (as determined under Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(b) The relative fault of such Indemnifying and
Indemnified Parties shall be determined by reference to, among
other things, whether any untrue or alleged untrue statement of a
material fact, or omission or alleged omission to state a
material fact, has been made by, or relates to information
supplied by, such Indemnifying Party or Indemnified Parties and
the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall
be deemed to include any reasonable legal or other fees or
expenses incurred by such party in connection with investigating
or defending such claim.
(c) Promptly after receipt by any party of notice of
the commencement of any action, suit or proceeding, the party
shall, if a claim for contribution in respect thereof is to be
made against another party, notify the contributing party of the
commencement thereof. The omission so to notify the contributing
party shall not relieve it from any liability which it may have
to any other party, except to the extent that the failure or
delay adversely affects the ability of the party to defend,
settle or satisfy the claim. In case any action, suit or
proceeding is brought against any party, and such party notifies
a contributing party of the commencement thereof, the
contributing party shall be entitled to participate therein with
the notifying party and any other contributing party similarly
notified.
10.3 Limitation of Market Activity. In connection
with any Demand Registration Statement or any Incidental
Registration Statement with respect to which the holders of
Rights Shares have registration rights under Article VIII or
Article IX (whether or not the holders of the Rights Shares have
exercised such rights), if so requested by the managing
underwriter, no holder of any Rights Shares shall offer or sell
any Shares (other than in a private transaction not involving a
sale in the public market or pursuant to Rule 144 under the
Securities Act) during the period when delivery of a prospectus
by an underwriter or dealer may be required with respect to the
offering pursuant to the Securities Act, and for a further period
of time (not to exceed 90 days) from the effective date of the
Incidental Registration Statement or Demand Registration
Statement as the managing underwriter for the offering may
specify in writing.
ARTICLE XI
PREEMPTION RIGHTS
11.1 Notice. At least 21 days prior to any proposed
Preemption Transaction, R&M shall give a Preemption Transaction
Notice to each registered holder of Rights.
11.2 Preemption Rights. (a) The registered holders
of Rights on the date that R&M gives a Preemption Transaction
Notice shall have the right, within 21 days after receipt of such
notice, to purchase for cash all (and not less than all) of the
Preferred Shares and/or Preferred Convertible Securities offered
pursuant to such Preemption Transaction upon substantially the
same terms and conditions provided for in the Preemption
Transaction.
(b) If there is more than one registered holder of
Rights on the date that R&M gives a Preemption Transaction
Notice, each such registered holder of Rights who desires to
purchase Preferred Shares and/or Preferred Convertible Securities
offered pursuant to such Preemption Transaction shall have a
right to purchase (unless all registered holders desiring to
purchase Preferred Shares and/or Preferred Convertible Securities
agree to a different allocation) a number of the Preferred Shares
and/or Preferred Convertible Securities offered determined by
multiplying the aggregate number of Preferred Shares and/or
Preferred Convertible Securities offered by a fraction, the
numerator of which is the number of Rights held by such
registered holder and the denominator of which is the number of
Rights held by all registered holders desiring to purchase
Preferred Shares and/or Preferred Convertible Securities.
(c) In the event any Preferred Shares or Preferred
Convertible Securities subject to a Preemption Transaction are to
be issued for consideration other than cash, the Board of
Directors of R&M shall, in the good faith exercise of their
business judgment expressed in a resolution adopted by the Board,
determine the fair market value per Preferred Share or Preferred
Convertible Security of the property to be received as
consideration. Such fair market value as so determined shall be
deemed to be the purchase price of such Preferred Shares and/or
Preferred Convertible Securities applicable with respect to the
exercise of the rights provided for in this Section 11.2.
(d) R&M must, within 180 days following the Preemption
Transaction Notice, conclude the Preemption Transaction described
in the Preemption Transaction Notice on the terms and conditions
described therein; provided, however, that the price at which the
Preemption Transaction is concluded may be less than the price
set forth in the Preemption Transaction Notice, but not less than
90% of such price. Any proposed Preemption Transaction on terms
and conditions different from those set forth in the preceding
sentence shall again be subject to the Preemption Rights in
accordance with Section 11.2(a).
ARTICLE XII
REPRESENTATIONS AND WARRANTIES
12.1 Representations and Warranties of R&M. R&M
hereby represents, warrants, and covenants to Eagle and the
holders of Rights or Rights Shares as of the date of this
Agreement as follows:
(a) Organization and Standing of R&M. R&M is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Ohio and has full and
complete power and authority to own its properties and
assets, to carry on its business as the same is now being
conducted and to execute, deliver and perform this Agreement.
(b) Corporate Authority. The execution and delivery of
this Agreement and the performance by R&M of the transactions
contemplated hereby have been duly authorized by all
necessary corporate action on the part of R&M. This
Agreement is a legal, valid and binding obligation of R&M,
enforceable against R&M in accordance with its terms. Any
Shares issued to the registered holder of a Rights
Certificate upon due exercise of the Rights evidenced thereby
will be duly authorized, validly issued, fully-paid and non-
assessable and will be issued free of any liens or other
charges other than applicable stock transfer taxes.
(c) No Violation. Neither the execution and delivery
of this Agreement nor the consummation by R&M of the
transactions contemplated hereby (i) will violate any
provision of the Articles of Incorporation or Regulations of
R&M, (ii) will violate or be in conflict with any applicable
law or any judgment, decree, injunction or order of any court
or governmental agency or authority, or (iii) will violate or
conflict with or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a
default) under or will result in the termination of,
accelerate the performance required by, or result in the
creation of any lien, security interest, charge or
encumbrance upon any of the assets or properties of R&M
under, the Articles of Incorporation or Regulations of R&M or
any contract, commitment, understanding, arrangement,
agreement or restriction of any kind or character to which
R&M is a party or by which R&M or any of its properties or
assets may be bound or affected.
(d) Capitalization. As of the date of this Agreement,
the authorized capital stock of R&M consists of 10,000,000
Shares, of which 5,120,471 Shares were issued and outstanding
as of June 30, 1994. As of the date of this Agreement there
are no outstanding options, warrants, convertible instruments
or other rights, agreements or commitments to acquire capital
shares of R&M granted or entered into by R&M other than
options or rights granted under Authorized Employee Plans and
this Agreement.
(e) Preemptive Rights. No shareholder or other person
has any preemptive rights, rights of first refusal or similar
rights to acquire additional capital shares of R&M, except as
provided for in this Agreement.
(f) Transfer Restrictions. To the best of R&M's
knowledge, there are no restrictions on transfer of R&M's
capital shares, other than those imposed by applicable state
and federal securities laws and by this Agreement.
(g) Consents. No authorization, consent, approval,
order of or filing with or notice to any third party or any
governmental agency, instrumentality or authority is
necessary for the execution and delivery of this Agreement by
R&M or the consummation by R&M of the transactions
contemplated hereby, except as otherwise provided herein.
(h) Authorized Employee Plans. Exhibit B is a true and
complete list of all Authorized Employee Plans and the
information set forth on Exhibit B with respect to each plan
is true and accurate as of June 30, 1994.
(i) Reserved Shares. R&M shall at all times reserve
and keep available solely for issuance, sale and delivery
upon the exercise of the Rights, a number of Shares equal to
the maximum number of full Shares issuable at any time upon
the exercise of the Rights. All Rights Shares shall, when
issued upon such exercise, (a) be duly and validly authorized
and issued, fully paid and nonassessable, and (b) be free
from all taxes, liens and charges with respect to the
issuance thereof other than any stock transfer taxes in
respect of any transfer occurring contemporaneously with such
issuance.
12.2 Representations and Warranties of Eagle. Eagle
represents and warrants to R&M as of the date of this Agreement
as follows:
(a) Organization and Standing of Eagle. Eagle is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has full
and complete power and authority to own its properties and
assets, to carry on its business as the same is now being
conducted and to execute, deliver and perform this Agreement.
(b) Corporate Authority. The execution and delivery of
this Agreement and the performance by Eagle of the
transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of Eagle. This
Agreement is the legal, valid and binding obligation of Eagle
enforceable against Eagle in accordance with its terms.
(c) No Violation. Neither the execution or delivery of
this Agreement nor the consummation by Eagle of the
transactions contemplated hereby (i) will violate any
provision of the certificate of incorporation or bylaws (or
other charter documents) of Eagle, (ii) will violate or be in
conflict with any applicable law or any judgment, decree,
injunction or order of any court or governmental agency or
authority, or (iii) will violate or conflict with or
constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under or will
result in the termination of, accelerate the performance
required by, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the assets or
properties of Eagle under, any term or provision of the
certificate of incorporation or bylaws (or other charter
documents) of Eagle or of any contract, commitment,
understanding, arrangement, agreement or restriction of any
kind or character to which Eagle is a party or by which Eagle
or any of its properties or assets may be bound or affected.
(d) Investment Representations. Eagle is an
"accredited investor" as defined in Rule 501 adopted under
the Securities Act. Eagle is acquiring the Rights for its
own account and not with a view to any distribution thereof.
Eagle acknowledges that the issuance of the Rights pursuant
to this Agreement has not been, and the issuance of any
Shares issued upon exercise of Rights will not be, except as
contemplated herein, registered under the Securities Act or
any applicable state securities laws, in reliance upon an
exemption from the registration requirements of the
Securities Act and such state laws, and neither the Rights
nor any Shares so issued may be resold or transferred unless
registered under the Securities Act and such state laws or
unless an applicable exemption from registration is available
(and the Rights Certificates and the certificates evidencing
any such Rights Shares will bear legends setting forth such
restrictions and the other restrictions imposed under this
Agreement). Eagle acknowledges receiving copies of R&M
Reports and that it has had the opportunity to ask questions
and receive answers concerning the terms and conditions of
this Agreement and the issuance of the Rights and to obtain
any additional information which R&M possesses or can acquire
without unreasonable effort or expense that is necessary to
verify the accuracy of any information provided by R&M to
Eagle.
ARTICLE XIII
MISCELLANEOUS
13.1 Amendment. No modification or amendment of any
provision of this Agreement shall be effective unless made in a
written instrument, duly executed by R&M and the holder or
holders of at least a majority of the outstanding Rights, if any;
provided, however, that no such amendment shall materially
adversely affect the rights hereunder of any holder of
outstanding Rights or Rights Shares without the approval of such
holder.
13.2 Further Assurances. Both parties shall execute
and deliver, or cause to be executed and delivered, all such
instruments, certificates, and documents, and shall take all such
other actions, as the other party to this Agreement may
reasonably request from time to time in order to effectuate the
purposes and intent of this Agreement.
13.3 Assignability. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Notwithstanding the
foregoing, however, neither party may assign its rights under
this Agreement without the written consent of the other party
hereto.
13.4 Counterparts; Headings. This Agreement may be
executed simultaneously in one or more counterparts, each of
which shall be deemed an original, but all of which together
shall constitute one and the same agreement. The headings in
this Agreement are inserted for convenience of reference only and
shall not affect the meaning or interpretations of this
Agreement.
13.5 Entire Agreement. This Agreement and the
exhibits, other instruments, and documents referred to herein
contain the entire agreement between the parties with respect to
the transactions contemplated hereby, and supersede all
negotiations, representations, warranties, commitments, offers,
contracts, whether oral or written, prior to the date hereof.
13.6 Waiver. The failure of either party to insist in
any one or more instances upon performance of any provision of
this Agreement or to take advantage of any right hereunder shall
not be construed as a waiver of any such provision or the
relinquishment of any such right, and the same shall continue and
remain in full force and effect. No single or partial exercise
by a party of any right or remedy shall preclude other or further
exercise of any other right or remedy. Waiver by either party of
any breach of any provision of this Agreement shall not
constitute or be construed as a continuing waiver or as a waiver
of any other breach of any other provision of this Agreement.
13.7 Severability. In the event that any word,
phrase, clause, sentence, or other provision of this Agreement
shall violate any applicable law, such provision shall be invalid
to the extent of such violation without affecting the validity or
enforceability of any other provision of this Agreement.
13.8 Resolution of Disputes. (a) In the event a
dispute between R&M and Eagle arises under the terms of this
Agreement, either party may send to the other a letter of dispute
setting forth in particular the subject matter of the dispute
("Disputed Matter"). The parties shall meet at the offices of
R&M in Dayton, Ohio, or such other place as may be mutually
agreeable to them, not later than twenty days after the date of
the receipt of the letter of dispute for the purposes of
negotiating a settlement of the Disputed Matter.
(b) In the event that either party determines after
compliance with Section 13.8(a) that the Disputed Matter cannot
be resolved by the parties, the Disputed Matter shall be
submitted to binding arbitration before a panel of three
arbitrators in Cleveland, Ohio in accordance with the Commercial
Arbitration Rules of the American Arbitration Association;
provided, however, that (i) the parties may engage in prehearing
discovery to the full extent provided in the Federal Rules of
Civil Procedure, and (ii) evidentiary rules contained in the
Federal Rules of Civil Procedure shall govern the submission of
evidence at the arbitration hearings. Judgment upon the award by
the arbitrators may be entered in any court having jurisdiction
thereof. As part of such award the arbitrators may establish
their fee and expenses in connection therewith. The fees and
expenses of the arbitrators shall be apportioned between the
parties by the arbitrators in accordance with the findings and
results of the arbitration.
13.9 Notices. All notices, requests, demands and
other communications under this Agreement shall be in writing and
shall be deemed to have been duly given (i) on the date of
service if served personally on the party to whom notice is to be
given, (ii) on the day of transmission if sent via facsimile
transmission to the facsimile number given below, and telephonic
confirmation of receipt is obtained promptly after completion of
transmission, (iii) on the day after delivery to Federal Express
or similar overnight courier or the Express Mail service
maintained by the United States Postal Service, or (iv) on the
fifth day after mailing, if mailed to the party to whom notice is
to be given, by registered or certified mail, postage prepaid and
properly addressed, to the party as follows:
If to R&M:
Robbins & Myers, Inc.
1400 Kettering Tower
Dayton, Ohio 45423
Telephone: 513/222-2610
FAX: 513/225-3314
Attention: Daniel W. Duval
President and Chief
Executive Officer
With a copy to:
Thompson, Hine and Flory
2000 Courthouse Plaza N.E.
Dayton, Ohio 45402-8801
Telephone: 513/443-6586
FAX: 513/443-6637
Attention: Joseph M. Rigot, Esq.
If to Eagle:
Eagle Industries, Inc.
Two North Riverside Plaza
Chicago, Illinois 60606
Telephone: 312/906-6880
FAX: 312/906-8402
Attention: William K. Hall
President and Chief
Executive Officer
With a copy to:
Eagle Industries, Inc.
Two North Riverside Plaza
Chicago, Illinois 60606
Telephone: 312/906-6860
FAX: 312/906-8402
Attention: Gus J. Athas, Esq.
Senior Vice President,
General Counsel and Secretary
and
Rosenberg & Liebentritt, P.C.
Suite 1600
Two North Riverside Plaza
Chicago, Illinois 60606
Telephone: 312/466-3456
FAX: 312/454-0335
Attention: Bruce C. Strohm, Esq. and
Jordan B. Allen, Esq.
If to a registered holder of Rights or Rights Shares
other than Eagle:
to the last address of such holder as shown on
R&M's transfer records
or to such other address as the person to whom notice is to be
given may have previously furnished to the other in writing in
the manner set forth above.
13.10 Cumulative Remedies. In addition to the other
remedies provided for in this Agreement, the parties will have
all rights and remedies granted under applicable law, including,
without limitation, the right to enforce the provisions of this
Agreement specifically and the right to recover damages in the
event of any breach of any provision of this Agreement.
13.11 Governing Law. This Agreement shall be construed
in accordance with, and the legal relations between the parties
shall be governed by, the laws of the State of Ohio as applicable
to agreements executed and fully performed in the State of Ohio.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
"R&M"
ROBBINS & MYERS, INC.
By /s/ Daniel W. Duval
----------------------
Daniel W. Duval
President and Chief
Executive Officer
"Eagle"
EAGLE INDUSTRIAL PRODUCTS
CORPORATION
By /s/ Gus J. Athas
----------------
Its Senior Vice-President