[EXECUTION COPY]
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REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
MAGNETEK, INC.
AND
U.S. TRUST COMPANY OF CALIFORNIA, N.A.
Dated as of June 28, 1996
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS.................................................... 1
SECTION 2. REQUIRED REGISTRATION.......................................... 3
(a) Shelf Registration Rights .......................................... 3
(b) Piggyback Registration.............................................. 3
(c) Duration of Registration............................................ 4
SECTION 3. LIMITATIONS ON TRANSFERS....................................... 4
SECTION 4. INTERRUPTIONS OF CONTINUOUS REGISTRATION....................... 5
(a) Permitted Interruptions ............................................ 5
(b) Holdback Agreements ................................................ 6
(c) Cessation of Offers ................................................ 6
SECTION 5. REGISTRATION PROCEDURES ....................................... 7
(a) State Law Compliance................................................ 7
(b) Underwritten Offering .............................................. 7
(c) Confidentiality .................................................... 8
(e) Information Regarding Pension Plan.................................. 8
SECTION 6. NEGOTIATED TRANSFERS........................................... 8
SECTION 7. EXPENSES OF REGISTRATION....................................... 9
SECTION 8. INDEMNIFICATION ............................................... 9
(a) Indemnification by the Company...................................... 9
(b) Indemnification by Holders of Registrable Securities................ 10
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(c) Delivery of Prospectus.............................................. 10
(d) Conduct of Indemnification Proceedings.............................. 10
(e) Contribution........................................................ 11
SECTION 9. GENERAL PROVISIONS............................................. 12
(a) Succession.......................................................... 12
(b) Termination......................................................... 12
(c) Amendments and Waivers ............................................. 12
(d) Notice.............................................................. 12
(e) Governing Law....................................................... 13
(f) Counterparts......................................................... 14
(g) Complete Agreement .................................................. 14
(h) Headings; Interpretation............................................. 14
(i) Gender and Number.................................................... 14
(j) No Third Party Beneficiaries......................................... 14
(k) Cooperation.......................................................... 14
(l) Binding Effect, Assignment........................................... 14
REGISTRATION RIGHTS AGREEMENT
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This REGISTRATION RIGHTS AGREEMENT is entered into as of June 28, 1996,
by and between MagneTek, Inc., a Delaware corporation (the "COMPANY"), and
U.S. Trust Company of California, N.A., a national banking association, in
its capacity as duly appointed and acting investment manager (the "MANAGER")
of a segregated account held in the trust (the "TRUST") created under the
MagneTek, Inc. FlexCare Plus Retirement Pension Plan (the "PENSION PLAN,"
which term, as used herein, shall include the Manager acting on behalf of the
Pension Plan and the Trust), for the account and on behalf of the Pension
Plan (which shall thereby be deemed a party to this Agreement). Capitalized
terms used and not otherwise defined herein shall have the respective
meanings set forth in SECTION 1.
RECITALS:
WHEREAS, the Company has agreed, subject to the satisfaction of certain
regulatory and other conditions, to contribute 750,000 shares of Common Stock
to the Trust; and
WHEREAS, such shares of Common Stock immediately following such
contribution will be held in a single segregated account in the Trust (the
"SEGREGATED ACCOUNT"); and
WHEREAS, the Manager has been appointed as a "fiduciary" of the Pension
Plan, as defined in Section 3(21) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), with the authority to act on behalf of the
Pension Plan with respect to all assets held in the Segregated Account; and
WHEREAS, the Company has agreed to grant the Manager certain
registration rights with respect to shares of Common Stock held in the
Segregated Account, on the terms and subject to the conditions herein set
forth; and
WHEREAS, the Manager has full power and authority to execute and deliver
this Agreement for the account and on behalf of the Pension Plan and to bind
the Pension Plan;
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth in this Agreement, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT:
Section 1. DEFINITIONS.
In addition to those terms that are defined in the preamble hereto, the
following terms shall have the following meanings as used in this Agreement:
"AFFILIATE" means with respect to any Person, any other Person (i)
controlling, controlled by or under common control with such Person or (ii)
who is a director, officer or employee or a former director, officer or
employee of such Person.
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"AGREEMENT" means this Registration Rights Agreement.
"BLACKOUT PERIOD" means (i) any holdback period during which Transfers
are not permitted by operation of SECTION 4(b) and (ii) the period of time
during which Transfers are not permitted by operation of SECTION 3(a).
"BOARD OF DIRECTORS" means the Board of Directors of the Company and any
authorized committee thereof.
"BUSINESS DAY" means any day on which the New York Stock Exchange is
open for trading.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMON STOCK" means the Company's Common Stock, par value $.01 per
share.
"COMPANY" is defined in the preamble.
"ERISA" is defined in the recitals.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FORM S-3" means Form S-3 as promulgated by the SEC or any successor
form that is substantially similar thereto.
"INTERRUPTION NOTICE" is defined in SECTION 4(a).
"ISSUER" means, initially, the Company, and thereafter, each successor
issuer as described in SECTION 9(a).
"NEGOTIATED TRANSFER" is defined in SECTION 6(a).
"PERMITTED INTERRUPTION" is defined in SECTION 4(a).
"PERSON" means an individual, partnership, corporation, trust or
unincorporated organization, or a government, or agency or political
subdivision thereof.
"PROSPECTUS" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and all other amendments
and supplements to the Prospectus, including post-effective amendments and
all material incorporated by reference in such Prospectus.
"REGISTERED TRANSFER" is defined in SECTION 6(b).
"REGISTRABLE SECURITIES" means all of the shares of Common Stock
contributed by the Company to the Pension Plan as described in the recitals
hereto and any Common Stock of the Company issued in respect thereof or in
exchange or replacement for the Common Stock so
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contributed; PROVIDED, HOWEVER, that a security ceases to be a Registrable
Security upon its Transfer pursuant to Sections 3 or 6 hereof.
"REGISTRATION" means the registration contemplated by SECTION 2 hereof,
as the same may be delayed, interrupted or resumed.
"REGISTRATION STATEMENT" means any registration statement of the Company
in a Registration which covers any of the Registrable Securities pursuant to
the provisions of SECTION 2 of this Agreement, including the Prospectus,
amendments and supplements to such Registration Statement, post-effective
amendments, all exhibits and all material incorporated by reference in such
Registration Statement.
"RULE 144" means Rule 144 under the Securities Act, or any successor or
similar rule.
"RULE 415" means Rule 415 under the Securities Act, or any successor or
similar rule.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"SHELF REGISTRATION STATEMENT" is defined in SECTION 2(a).
"TRANSFER" means any sale, transfer or other disposition (including any
pledge and any disposition upon the foreclosure of any pledge) or any
agreement to do any of the foregoing.
Section 2. REQUIRED REGISTRATION.
(a) SHELF REGISTRATION RIGHTS. Subject to SECTION 4(b), as promptly as
reasonably practicable after the date hereof, the Company shall use
reasonable efforts to effect the Registration of all of the Registrable
Securities on a continuous basis under Rule 415 by preparing and filing with
the SEC a Registration Statement on Form S-3 (the "SHELF REGISTRATION
STATEMENT"); provided, however, that if, prior to the effective date of such
Registration, circumstances arise which would, after such date, constitute a
Permitted Interruption, the Company shall be entitled to delay the
Registration for the period of such Permitted Interruption. The Company
shall use reasonable efforts to remain eligible to register its securities on
Form S-3, including, without limitation, remaining current in any required
filings under the Exchange Act.
(b) PIGGYBACK REGISTRATION. In the event the Company proposes to make
an underwritten offering of newly-issued Common Stock, the Company shall
provide the Manager with reasonable notice thereof and an opportunity to
include therein Registrable Securities, PROVIDED, HOWEVER, that (i) no
Registrable Securities shall be included therein if, in the opinion of the
underwriters, their inclusion would impede the consummation of the primary
shares proposed to be included therein by the Company, and (ii) no greater
number shall be included than so approved by the underwriters as not impeding
such primary offering. The Company shall not grant registration rights after
the date hereof and before the expiration of the aforesaid piggyback rights
that are equal or superior in priority to those granted herein. The
piggyback registration
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rights in this Section 3(b) shall expire on the date that is thirty-six (36)
months after the date of this Agreement.
(c) DURATION OF REGISTRATION. The Company shall use reasonable efforts
(subject to any Permitted Interruption) to cause the Registration to remain
in effect until the date that is thirty-six months from the date of this
Agreement.
(d) Under the circumstances set forth in Section 4(a)(i), in the event
the Company is required to invoke such Section for a period longer than
ninety (90) days, then after the expiration of such 90-day period, the
Company shall use its reasonable efforts to effect the registration of the
portion (but no less than 50% of the Registrable Securities outstanding on
the date hereof, as adjusted to reflect any recapitalization or stock split)
of the Registrable Securities indicated in a request from the manager
submitted prior to thirty-three (33) months from the date hereof. The
Company shall use reasonable efforts to effect such registration within
thirty (30) days of receipt of such request and to maintain such registration
effective for the period, not to exceed 90 days, indicated in the plan of
distribution.
Section 3. LIMITATIONS ON TRANSFERS.
(a) The Pension Plan shall not make any Transfer of any Registrable
Securities other than pursuant to (i) the Shelf Registration Statement in
accordance with the plan of distribution described therein, (ii) Rule 144,
(iii) a Transfer to the Company or a wholly-owned direct or indirect
subsidiary of the Company pursuant to a self-tender offer or otherwise, (iv)
a Transfer in response to a tender offer permitted under SECTION 3(c) below,
(v) a Negotiated Transfer permitted under SECTION 6 below or (vi) a Transfer
pursuant to a merger or consolidation in which the Company is a constituent
corporation. All such Transfers shall in addition be subject to the
provisions of this Section 3 and all other applicable provisions of this
Agreement.
(b) The Manager shall provide the Company with a notice of a proposed
Transfer within a reasonable period of time before such proposed Transfer.
Such notice shall state (i) the section of this Agreement pursuant to which
the Pension Plan proposes to Transfer Registrable Securities, (ii) the
maximum number of shares that the Pension Plan proposes to Transfer and (iii)
whether the Transfer or Transfers will occur on a date specified in such
notice or during a period of time specified in the notice. Each notice of a
proposed Transfer pursuant to this SECTION 3(b) shall be delivered a
reasonable period of time before such proposed Transfer and, in any event, as
to (x) Transfers under the Shelf Registration Statement or Rule 144, not less
than two Business Days before such proposed Transfer, and (y) Transfers under
SECTION 6, not less than 10 Business Days before such proposed Transfer. The
Manager shall establish, to the reasonable satisfaction of the Company, that
such proposed Transfer is in compliance with ERISA, federal and state
securities laws and regulations and other applicable laws and regulations.
Notwithstanding the foregoing, the Manager shall not effect any such Transfer
if the Company's legal counsel advises the Company and the Manager in writing
that such Transfer would constitute a "prohibited transaction" (as described
in Section 4975 of the Code), unless the Pension Plan establishes to the
reasonable satisfaction of the Company that an exemption from such Section is
available.
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(c) Notwithstanding the provisions of this Agreement to the contrary,
the Manager may effect a Transfer by tendering all or any portion of the
Registrable Securities into a BONA FIDE exchange offer, a tender offer or a
request or invitation for tenders (as such terms are used in Sections 14(d)
or 14(e) of the Exchange Act and the rules and regulations of the SEC
thereunder) for Common Stock.
(d) No Transfer of Registrable Securities in violation of this
Agreement shall be made or recorded on the books of the Company, and any such
attempted Transfer shall be void and of no effect. Subject to SECTION 3(e)
below, each certificate representing the Registrable Securities shall
conspicuously bear legends in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAW AND, UNLESS SO
REGISTERED, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
REGISTRATION RIGHTS AGREEMENT, DATED AS OF JUNE 28, 1996 BY AND
BETWEEN THE ISSUER OF SUCH SECURITIES (THE "COMPANY") AND U.S.
TRUST COMPANY OF CALIFORNIA, N.A. THAT CONTAINS, AMONG OTHER
THINGS, CERTAIN RESTRICTIONS ON THE TRANSFER OF SUCH SECURITIES. A
COPY OF SUCH REGISTRATION RIGHTS AGREEMENT WILL BE FURNISHED
WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN
REQUEST.
(e) The Company will instruct its transfer agent that the legends set
forth in SECTION 3(d) shall be removed upon the Pension Plan's Transfer of
shares of Common Stock if such Transfer is made in accordance with all
applicable provisions of this Agreement; PROVIDED, HOWEVER, that if such
Transfer is a Negotiated Transfer that is not registered under the Securities
Act, the first legend shall remain on the certificates representing such
shares until such time as the restrictions set forth in such legend cease to
be applicable.
Section 4. INTERRUPTIONS OF CONTINUOUS REGISTRATION.
(a) PERMITTED INTERRUPTIONS. The Company shall be entitled, effective
immediately upon notice given in conformity with SECTION 9(d) (an
"INTERRUPTION NOTICE"), to require the Pension Plan to cease to make any
offers or sales of the Registrable Securities under any Registration
Statement then in effect in the event that:
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(i) the Company is no longer entitled to maintain a Registration
on Form S-3 under Rule 415;
(ii) the Company determines, as evidenced by a certificate of two
of the Company's executive officers, in its good faith and reasonable
judgment, that the offering of any Registrable Securities would (x)
materially impede, delay or interfere with any proposed financing, offer or
sale of securities, acquisition, corporate reorganization or other
significant transaction involving the Company, (y) require disclosure of
material, nonpublic information not otherwise proposed to be disclosed or (z)
conflict with material business plans of the Company in a manner not in the
best interests of the Company. In each such case the interruption shall not
exceed 90 days from the date the Company makes such determination;
(iii) the Company has initiated bona fide discussions with an
underwriter regarding the sale of its securities in a registered primary
public offering and in such underwriter's opinion, the continuation of offers
and/or sales in the Registration would have a material adverse effect on such
offering under discussion (in which case the interruption may not exceed 90
days from the Interruption Notice); or
(iv) at any time the Company would be required, in order to
maintain the effectiveness of the Registration Statement, to obtain audited
financial statements not being prepared independently of the Registration,
unless the Pension Plan undertakes to pay the Company's expenses in obtaining
the requisite financial statements (in which case the interruption shall
terminate when the requisite financial statements are available).
Each of the
foregoing events or any combination thereof shall be hereinafter referred to
as a "PERMITTED INTERRUPTION." In no event (other than pursuant to clause
4(a)(i)) shall the Manager be required to cease offers and sales under the
Registration Statement for more than an aggregate of six months in any
consecutive twelve-month period pursuant to Permitted Interruptions.
(b) HOLDBACK AGREEMENTS. In the event the managing underwriter in any
registration effected by the Company that gives rise to a Permitted
Interruption so requests, the Manager will agree not to effect any public
sale or distribution of the shares of Registrable Securities held by them
(including a sale pursuant to Rule 144) for a period up to 180 days following
the effective date of such registration that so gives rise to a Permitted
Interruption.
(c) CESSATION OF OFFERS. The Manager hereby agrees that, upon receipt
of any notice (including any Interruption Notice) from the Company of:
(i) any Permitted Interruption;
(ii) any request by the SEC for amendments or supplements to a
Registration Statement or Prospectus or for additional information;
(iii) the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose;
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(iv) the representations and warranties of the Company made in
any underwriting agreement relating to the Registration ceasing to be true
and correct in any material respect;
(v) the receipt by the Company of any notification with respect
to the suspension of the qualification of any Registrable Securities
registered in such Registration for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose (in which case
the cessation of sales shall pertain only to the applicable jurisdiction);
(vi) the happening of any event which makes any statement made in
a Registration Statement, Prospectus or any document incorporated therein by
reference untrue in any material respect or which requires the making of any
changes in any such Registration Statement or Prospectus so that they will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; or
(vii) the Company's reasonable determination that a post-effective
amendment to a registration statement would be appropriate;
that the Manager will forthwith discontinue disposition of any Registrable
Securities covered by such Registration Statement until such Pension Plan's
receipt of any required supplemental or amended materials or of advice in
writing that use of the applicable Prospectus may be resumed. In such event,
the Company will use its reasonable efforts promptly to correct or supplement
the Registration Statement, to obtain the lifting of any stop order or
otherwise to remove the circumstances preventing the Manager from continuing
to make offers and sales under the Registration Statement, subject to the
duration provided in SECTION 4 of any Permitted Interruption.
Section 5. REGISTRATION PROCEDURES.
(a) STATE LAW COMPLIANCE. The Company shall use reasonable efforts to
cause the Registrable Securities covered by such Registration to be
registered in a reasonable number of jurisdictions as requested by the
Manager, provided that the Company shall not be obligated to file a general
consent to service of process or to qualify to do business as a foreign
corporation or otherwise to subject itself to taxation in connection with any
such registration.
(b) UNDERWRITTEN OFFERING. If any of the Registrable Securities
covered by the Registration are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Manager; PROVIDED, HOWEVER,
that such investment bankers and managers must be reasonably satisfactory to
the Company. The Company will enter into such agreements (including an
underwriting agreement) and take all such other actions reasonably necessary
in connection therewith in order to expedite or facilitate the disposition of
such Registrable Securities, and in such connection:
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(i) make such representations and warranties to the underwriters
in form, substance and scope as are customarily made by stockholders to
underwriters in underwritten offerings and confirm the same if and when
requested;
(ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reason ably satisfactory to the managing underwriter and the Pension Plan)
addressed to the Pension Plan and the underwriters, if any, covering the
matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such holders and
underwriters;
(iii) enter into an indemnity agreement in form, scope and
substance as is customary in underwritten offerings;
(iv) obtain "cold comfort" letters and updates thereof as
appropriate from the Company's independent certified public accountants
addressed to the underwriters, if any, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with underwritten offerings (provided
that no more than one such cold comfort letter (and updates thereof) shall be
required to be provided at Company expense); and
(v) deliver such documents and certificates as may be reasonably
requested by the Pension Plan and the managing underwriter, if any.
(c) CONFIDENTIALITY. Each of the parties will treat all notices of
proposed Transfers and all notices pursuant to SECTION 4(c) received from the
other party with the strictest confidence and will not disseminate such
information. Nothing herein shall be construed to require Company or any of
its Affiliates to make any public disclosure of information at any time.
(d) INFORMATION REGARDING PENSION PLAN. The Manager shall furnish to
the Company such information regarding the Pension Plan's holdings of Common
Stock and the proposed manner of distribution thereof and such other
information as the Company may reasonably request and as shall be required in
connection with the Registration and with any qualification under state law
referred to in SECTION 5(a). The Company agrees that it will furnish to the
Manager the number of prospectuses, offering circulars or other documents, or
any amendments or supplements thereto, incident to such qualification under
state law referred to in this SECTION 5 as the Pension Plan from time to time
may reasonably request.
Section 6. NEGOTIATED TRANSFERS.
(a) The Manager shall deliver to Company a written notice that the
Manager proposes to make a Transfer of Registrable Securities pursuant to a
negotiated transaction or series of related transactions with one or more
transferees (each such transaction or series of related transactions, whether
registered or not, being referred to herein collectively as a "NEGOTIATED
TRANSFER"). Each notice of a proposed Negotiated Transfer shall be delivered
a reasonable period of time before the proposed Transfer and, in any event,
not less than 10 Business Days before the proposed commencement of such
proposed Transfer. Each notice of a proposed Negotiated
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Transfer shall specify the approximate number of Registrable Securities
proposed to be Transferred, the proposed timetable for the transaction,
whether the transfer will be made pursuant to the Shelf Registration
Statement, and the anticipated per share price for such Transfer. If the
Registrable Securities subject to any Negotiated Transfer are not registered
under the Securities Act, the Pension Plan shall, prior to effecting such
Negotiated Transfer, cause each transferee in such Negotiated Transfer to
represent and warrant to the Pension Plan and Company in writing that (i)
such transferee is acquiring such Registrable Securities for its own account,
or for one or more accounts, as to each of which such transferee exercises
sole investment discretion, for investment purposes only and not with a view
to, or for resale in connection with, any distribution (within the meaning of
the Securities Act), (ii) such transferee has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits
and risks of an investment in the Registrable Securities, and (iii) such
transferee acknowledges that such Transfer has not been and will not be
registered under the Securities Act or any state securities law and such
Registrable Securities may not be resold unless registered under the
Securities Act or unless such resale is exempt therefrom.
(b) Unless approved in advance in writing by the Company, which may
withhold such approval in its discretion, the Manager shall not make a
Negotiated Transfer to any one Person (or group of related Persons) if such
Person (or group of related Persons) is, or as a result of such Negotiated
Transfer will be (to the knowledge of the Pension Plan after reasonable
inquiry), the beneficial owner, as defined for purposes of Section 13(d) of
the Exchange Act (or any successor thereto), of more than 5% of Company's
outstanding Common Stock.
(c) The Company shall make available members of the management of the
Company and its Affiliates for such assistance as is reasonably requested by
the Manager and its counsel in selling efforts relating to any Negotiated
Transfer.
Section 7. EXPENSES OF REGISTRATION.
The Company will bear all expenses of the Registration (other than
underwriting discounts and commissions and brokerage commissions and fees, if
any), including, without limitation, registration fees and legal and
accounting fees (subject to SECTION 4 regarding audited financial statements
and SECTION 5 regarding comfort letters) incurred by the Company in
connection with any such Registration and amendments or supplements in
connection therewith; PROVIDED, HOWEVER, that the Company will not be
required to reimburse the Manager for attorneys' fees incurred hereunder
exceeding $25,000 (plus any reasonably incurred out-of-pocket expenses
incurred by such counsel) incurred in any calendar year or after 36 months
from the date hereof.
Section 8. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify
and hold harmless, to the full extent permitted by law, each of the Pension
Plan, the Trust, the Manager and its agents against all losses, claims,
damages, liabilities and expenses caused by any untrue or alleged untrue
statement of a material fact contained in any Registration Statement,
Prospectus or preliminary prospectus or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except
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insofar as the same are caused by or contained in any information furnished
in writing to the Company by such Person or its agents or any underwriter
thereof expressly for use therein. The Company will also indemnify
underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, their officers and
directors and each Person who controls such Persons (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the Pension Plan, the Trust, the Manager and its agents,
if requested. The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution to the same extent
as provided above with respect to information so furnished in writing by such
Persons specifically for inclusion in any Prospectus or Registration
Statement.
(b) INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES. Each of the
Pension Plan, the Trust and the Manager severally agrees to indemnify, to the
full extent permitted by law, the Company, its directors and officers and
each Person who controls the Company (within the meaning of the Securities
Act) against any losses, claims, damages, liabilities and expenses caused by
any untrue statement of a material fact or any omission of a material fact
required to be stated in any Registration Statement or Prospectus or
preliminary prospectus or necessary to make the statements therein (in the
case of a Prospectus, in the light of the circumstances under which they were
made) not misleading, to the extent, but only to the extent, that such untrue
statement or omission is contained in any information or affidavit so
furnished in writing by such Person specifically for inclusion in such
Registration Statement or Prospectus. In no event shall the liability of (i)
the Pension Plan or the Trust hereunder be greater in amount than the dollar
amount of the proceeds received by the Pension Plan upon the sale of the
Registrable Securities giving rise to such indemnification obligation or (ii)
of the manager hereunder be greater in amount than the aggregate fees
received by the Manager to date in connection with the Trust.
(c) DELIVERY OF PROSPECTUS. The indemnification provisions in SECTIONS
8(A) and (B) above are subject to the condition that, insofar as they relate
to any untrue statement (or alleged untrue statement) or omission (or alleged
omission) made in a preliminary prospectus or prospectus but eliminated or
remedied in the amended prospectus on file with the SEC at the time the
registration statement becomes effective or in any amended prospectus filed
with the SEC pursuant to Rule 424(b) or 424(c) (the "Final Prospectus"), such
indemnity provisions shall not inure to the benefit of any underwriter, the
Pension Plan, the Trust, the Manager or its agents, if the Company has
previously delivered copies of such Final Prospectus to such underwriter, the
Pension Plan, the Trust, the Manager or its agents and if a copy of the Final
Prospectus was not furnished by such underwriter, the Pension Plan, the
Trust, the Manager or its agents, as the case may be, to the Person asserting
the loss, liability, claim or damage prior to or concurrently with the sale
of a Registrable Security to such Person.
(d) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled to
indemnification hereunder will (i) give prompt notice to the indemnifying
party of any claim with respect to which it seeks indemnification and (ii)
permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; PROVIDED, HOWEVER,
that any Person entitled to indemnification hereunder shall have the right to
employ separate counsel and to participate in the defense of such claim, but
the fees and expenses of counsel shall be at the
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expense of such Person unless (a) the indemnifying party has agreed to pay
such fees or expenses, or (b) the indemnifying party shall have failed to
assume the defense of such claims and employ counsel reasonably satisfactory
to such Person or (c) in the reasonable judgment of any such Person, based
upon advice of such Person's counsel, a conflict of interest may exist
between such Person and the indemnifying party with respect to such claims
(in which case, if the Person notifies the indemnifying party in writing that
such Person elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such claim on behalf of such Person). If such defense is not
assumed by the indemnifying party, the indemnifying party will not be subject
to any liability for any settlement made without its consent (but such
consent will not be unreasonably withheld or delayed). No indemnifying party
will 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 the indemnified party of a release from all liability in respect
to such claim or litigation. An indemnifying party who is not entitled to,
or elects not to, assume the defense of a claim will not be obligated to pay
the fees and expenses of more than one counsel for all parties indemnified by
such indemnifying party with respect to such claim, unless in the opinion of
counsel to such Person a conflict of interest exists between such Person and
another indemnified Person with respect to such claim.
(e) CONTRIBUTION. If the indemnification provided for in this SECTION
8 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the 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 such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified party in connection
with the actions which resulted in such losses, claims, damages, liabilities
or expenses, as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any action in
question, including 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
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. 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, subject to the limitations set
forth in SECTION 8(D) hereof, any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this SECTION 8(e) were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this SECTION 8(e), in no event
shall (i) the Pension Plan be required to contribute any amount in excess of
the amount by which the total price at which the Registrable Securities sold
by the Pension Plan and distributed to the public were offered to the public
exceeds the amount of damages which such holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission or (ii) the Manager hereunder be required to contribute any
amount in excess of the
REGISTRATION RIGHTS AGREEMENT
11
aggregate fees received to date by the Manager in connection with the Trust.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
Section 9. GENERAL PROVISIONS.
(a) SUCCESSION. In the event that the Registrable Securities are to be
converted into or exchanged for (or become the right to receive) securities
of an issuer other than the Person who is then Issuer hereunder in connection
with any transaction to which such Issuer is a party, such Issuer shall cause
the issuer of such securities to agree, effective as of such conversion or
exchange, that all rights, obligations and restrictions of Issuer set forth
in this Agreement shall continue to apply to such securities. As of the time
of such conversion or exchange, subject to any Blackout Period, such issuer
shall be bound by this Agreement and shall succeed to all rights,
restrictions and obligations of Issuer set forth in this Agreement, all
references to Issuer herein shall thereafter be deemed to be references to
such issuer, and the predecessor Issuer shall be released from all
obligations under this Agreement except for any obligations under SECTION 8
with respect to any registration of securities issued by such Issuer. To
evidence the foregoing, prior to the time of such conversion or exchange, the
Issuer may execute, and cause such issuer to execute, a Succession Agreement
setting forth such issuer's obligations pursuant to this SECTION 9. Upon
request, the Manager shall acknowledge and agree to any such Succession
Agreement as set forth therein. To the extent required and permissible under
applicable law, as soon as reasonably practicable after such conversion or
exchange, such issuer shall file with the SEC an amendment to the Shelf
Registration Statement, if any, then in effect to ensure that such Shelf
Registration Statement shall continue to apply to such securities.
(b) TERMINATION. All rights, restrictions and obligations of Company
and the Pension Plan, except with respect to any rights and obligations under
SECTION 8, shall terminate and this Agreement shall have no further force and
effect on the earlier of the date set forth in SECTION 3(b) and the date the
Pension Plan no longer holds any Registrable Securities.
(c) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented
except by a writing signed by Company and the Manager.
(d) NOTICE. Each notice relating to this Agreement shall be in writing
and shall be delivered in person, by overnight air carrier, by registered or
certified mail, by facsimile transmission or by telex, to the parties at the
following addresses (or at such other address for a party as shall be
specified by like notice, provided that notices of a change of address shall
be effective only upon receipt thereof):
REGISTRATION RIGHTS AGREEMENT
12
IF TO COMPANY:
MagneTek, Inc.
P.O. Box 290159
26 Century Boulevard
Nashville, Tennessee 37229-0159
Attention: John P. Colling, Jr.
Telecopy No.: (615) 316-5192
WITH A COPY TO:
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071-3197
Attention: Jennifer Bellah, Esq.
Telecopy No.: (213) 229-7520
IF TO MANAGER:
U.S. Trust Company of California, N.A.
515 South Flower Street, Suite 2700
Los Angeles, California 90071-2291
Attention: Charles E. Wert
Telecopy No.: (213) 488-1366
WITH A COPY TO:
Jones, Day, Reavis & Pogue
77 West Wacker Drive
Chicago, Illinois 60601-1692
Attention: Ronald S. Rizzo, Esq.
Telecopy No.: (312) 782-8585.
Unless otherwise specifically provided in this Agreement, a notice shall
be deemed to have been effectively given if mailed by registered or certified
mail to the proper address (with such notice to be effective upon the earlier
of actual receipt or five days after deposit in the mail), if given in person
or by overnight air carrier when delivered in person or by overnight air
carrier, if given by telex or telecopy upon receipt if confirmed by return
telecopy, telex or telephonic confirmation or otherwise; provided, however,
that no notice shall be deemed received on a day that is not a Business Day
in the jurisdiction in which notices are to be addressed to such party. Any
such notice shall not be effective until the next Business Day in such
jurisdiction.
(e) GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the internal law, and not the law pertaining
to conflicts or choice of law, of the State of Delaware.
REGISTRATION RIGHTS AGREEMENT
13
(f) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
(g) COMPLETE AGREEMENT. This Agreement contains the entire agreement
between the parties hereto with respect to the transactions contemplated
herein and supersedes all previous oral and written and all contemporaneous
oral negotiations, commitments and understandings.
(h) HEADINGS; INTERPRETATION. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement. No party hereto, nor its respective
counsel, shall be deemed the drafter of this Agreement for purposes of
construing the provisions hereof. The language in all parts of this
Agreement shall in all cases be construed according to its fair meaning, and
not strictly for or against any party hereto.
(i) GENDER AND NUMBER. In this Agreement, unless the context otherwise
requires, the masculine, feminine and neuter genders and the singular and the
plural include one another.
(j) NO THIRD PARTY-BENEFICIARIES. This Agreement shall be for the sole
and exclusive benefit of the Company, the Pension Plan, the Trust, the
Manager and any other-investment manager or managers acting on behalf of the
Pension Plan with respect to the Registrable Securities, and their respective
successors, and directors, trustees, officers, employees, agents and
controlling Persons indemnified hereunder. Nothing in this agreement shall
be construed to give any other Person any legal or equitable right, remedy or
claim under this Agreement.
(k) COOPERATION. Each party hereto shall take such further action, and
execute such additional documents, as may be reasonably required by any other
party hereto in order to carry out the purposes of this Agreement.
(l) BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon
and shall inure to the benefit of and be enforceable by each of the parties
and their successors and the directors, trustees (including, without
limitation, any successor trustee for the Pension Plan), officers, employees,
agents and controlling Persons of the parties. Except for an assignment to a
successor trustee or to an investment manager as stated herein, and except as
contemplated in SECTION 9(a), none of the rights or obligations under this
Agreement shall be assigned by the Pension Plan without the consent of the
Company.
REGISTRATION RIGHTS AGREEMENT
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers hereunto duly authorized, as of the
date first above written.
MAGNETEK, INC.
By:
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Title:
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U.S. TRUST COMPANY OF CALIFORNIA, N.A., a
national banking association, in its capacity as
duly appointed and acting investment manager of
a segregated account held in the trust created
under the MagneTek, Inc. FlexCare Plus Retirement
Pension Plan
By:
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Title:
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REGISTRATION RIGHTS AGREEMENT
15