EXHIBIT 99.5
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of February 16, 2001 (this
"Agreement"), by and between APW Ltd., a Bermuda company (the "Company"), and
Connell Limited Partnership, a Delaware limited partnership ("Connell").
This Agreement is being entered into pursuant to Sections 11.5(f) and
12.5(h) of the Asset Purchase Agreement, dated as of January 23, 2001, as
amended by Amendment No. 1 to the Asset Purchase Agreement dated as of February
16, 2001 (the "Asset Purchase Agreement"), by and among Connell, the Company and
APW Mayville, LLC, a Delaware limited liability company ("Company Sub").
The Asset Purchase Agreement provides for the sale of the Mayville
Metal Products Division of Connell to Company Sub in exchange for shares of
common stock, par value $0.01 per share, of the Company ("Common Stock") and
other consideration, all as more fully set forth in the Asset Purchase
Agreement.
This Agreement sets forth the rights and obligations of Connell and
the Company with respect to the registration of Common Stock. Certain
capitalized terms used in this Agreement are defined in Section 2 hereof.
NOW THEREFORE, in consideration of the representation, warranties,
covenants and agreements set forth in the Asset Purchase Agreement and herein,
the parties hereto agree as follows:
1.1 Incidental Registration.
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(a) Right to Include Registrable Securities.
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(i) If after June 30, 2001 the Company intends to file any
registration statement under the Securities Act (other than a registration on
Form S-4 or Form S-8, or any successor forms thereto) for purposes of effecting
a public offering of securities of the Company for the account of the Company or
the account of any holder of securities of the Company, the Company shall notify
the Stockholders in writing at least 15 days prior to making such filing and
shall afford the Stock-
holders an opportunity to include in such registration statement all or any part
of the Registrable Securities held by such Stockholders.
(ii) Subject to Sections 1.1(b) and (c), upon written request of
any Stockholder made within 10 days after the receipt of the notice from the
Company pursuant to Section 1.1(a)(i) (which request shall specify the number of
Registrable Securities intended to be disposed of by such Stockholder and the
intended method or methods of disposition thereof), the Company shall use its
commercially reasonable best efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by such Stockholder, by inclusion of such Registrable
Securities in the registration statement which covers the securities which the
Company proposes to register, provided that if, at any time after giving written
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notice of its intention to register any securities and prior to the effective
date of the registration statement filed in connection with such registration,
the Company shall determine for any reason either not to register or to delay
registration of such securities, the Company may, at its election, give written
notice of such determination to the Stockholders and, thereupon, (A) in the case
of a determination not to register, shall be relieved of its obligation to
register any Registrable Securities in connection with such registration (but
not from its obligation to pay the Registration Expenses in connection
therewith) and (B) in the case of a determination to delay registering, shall be
permitted to delay registering any Registrable Securities, for the same period
as the delay in registering such other securities.
(iii) No registration effected under this Section 1.1 shall
relieve the Company of its obligation to effect any registration upon request
under Section 1.2.
(iv) If any Stockholder decides not to include all of the
Registrable Securities in any registration statement filed by the Company, such
Stockholder shall nevertheless continue to have the right to include any
Registrable Securities in any subsequent registration statement or statements as
may be filed by the Company with respect to offerings of its securities, all
upon the terms and conditions set forth herein.
(b) Underwritten Offering. If the Company at any time proposes to
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register any of its securities under the Securities Act as contemplated by this
Section 1.1 and such securities are to be distributed by or through one or more
underwriters, the Company shall afford the Stockholders an opportunity to
include in such distribution by or through one or more underwriters all the
Registrable Securi-
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ties requested to be offered and sold by such Stockholders, subject to Section
1.1(c). Such Stockholders will agree to execute the underwriting agreement with
customary terms, including lock-up terms.
(c) Priority in Incidental Registrations. If (i) a registration
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statement pursuant to this Section 1.1 involves an underwritten offering of the
securities being so registered and (ii) the managing underwriter of such
underwritten offering informs the Company and the Stockholders requesting
registration of their Registrable Securities by letter of its belief that the
number of securities requested to be included in such registration exceeds the
number which can be sold in (or during the time of) such offering without
adversely affecting the price thereof, then the Company shall include in such
registration that total number of securities which the Company is so advised can
be sold in (or during the time of) such offering, which number shall consist of
(A) if such registration as initially proposed was solely a primary
registration, securities proposed by the Company to be sold for its own account
and Registrable Securities requested to be included in such registration by
Stockholders, on a pro rata basis, and (B) if such registration as initially
proposed was in whole or in part a secondary registration, securities proposed
by the Company to be sold for its own account, securities proposed to be sold
for the account of holders of securities of the Company (other than Registrable
Securities) and Registrable Securities requested to be included in such
registration by Stockholders, on a pro rata basis.
1.2 Shelf Registration.
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(a) Upon written request by one or more Initiating Holders holding
100,000 or more Registrable Securities that the Company file a registration
statement on Form S-3 for a public offering on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act with respect to all or a part of
the Registrable Securities owned by such Initiating Holders, the Company shall
(i) promptly give written notice of such request to all other Stockholders and
(ii) subject to Section 1.2(c), use its commercially reasonable best efforts to
effect the registration under the Securities Act of the Registrable Securities
specified in the request of the Initiating Holders, together with such number of
Registrable Securities of any other Stockholder joining in such request as are
specified in a written notice given by other Stockholders given within 10 days
after receipt of the notice of the Company pursuant to Section 1.2(a)(i).
(b) Number of Shelf Registrations. The Company shall be obligated to
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effect only two registrations pursuant to this Section 1.2.
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(c) Discontinuance of Disposition. Upon receipt of any notice from
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the Company that, in the reasonable opinion of the Company's outside counsel,
any Stockholder's disposition of Registrable Securities pursuant to any shelf
registration effected pursuant to this Section 1.2 would require the Company to
make public disclosure of information which the Company has a bona fide business
purpose for preserving as confidential, such Stockholder shall forthwith
discontinue such disposition of Registrable Securities pursuant to such shelf
registration until the earlier of (i) the date upon which such material
information is disclosed to the public or ceases to be material or (ii) 60 days
after the Company makes such good faith determination; provided, however, that
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the Company shall not be entitled to exercise this right of deferral more than
once within any 6-month period. If prior to June 30, 2001 and while a shelf
registration effected pursuant to this Section 1.2 is in effect, the Company
effects a firm commitment underwritten public offering of Common Stock and the
managing underwriter of such public offering informs the Company and any
Stockholder that disposition of Registrable Securities pursuant to such shelf
registration would adversely effect such public offering, such Stockholder shall
discontinue such disposition of Registrable Securities pursuant to such shelf
registration for a period beginning on the effective date of the registration
statement for such public offering and ending on the 45th day after such
effective date (or such shorter period as the managing underwriter may request).
1.3 Registration Expenses. The Company shall pay all Registration
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Expenses incurred in connection with any registration effected pursuant to
Section 1.1 or 1.2; provided, however, that if a registration under Section 1.2
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is withdrawn at the request of the Initiating Holders (other than as a result of
information concerning the business or financial condition of the Company which
is made known to the Stockholders after the date on which such registration was
requested), then the Initiating Holders and requesting Stockholders shall pay
the Registration Expenses of such registration pro rata in accordance with the
number of their Registrable Securi ties included in such registration.
1.4 General Registration Obligations of the Company. If and whenever the
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Company is required to use its commercially reasonable best efforts to effect
the registration of any Registrable Securities under the Securities Act as
provided in this Agreement, the Company shall be obligated to, as expeditiously
as possible:
(a) Registration Statement. Prepare and file with the Securities and
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Exchange Commission (the "SEC") the requisite registration statement to effect
such registration and use its commercially reasonable best efforts to cause such
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registration statement to become effective as promptly as possible after the
filing date;
(b) Amendments and Supplements. Prepare and file with the SEC such
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amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be reasonably necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement until the earlier of (i) such time as all of such
securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in the registration
statement or (ii) the first anniversary of the Closing Date (as defined in the
Asset Purchase Agreement);
(c) Prospectuses. Furnish to each seller of Registrable Securities
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covered by such registration statement and each underwriter, if any, of the
securities being sold by such seller such number of conformed copies of such
registration statement and of each such amendment and supplement thereto (in
each case including all exhibits), such number of copies of the prospectus
contained in such registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, in conformity with the requirements of the Securities Act,
and such other documents as such seller and underwriter, if any, may reasonably
request in order to facilitate the public sale or other disposition of the
Registrable Securities owned by such seller;
(d) Blue Sky and Exchanges. Use its commercially reasonable best
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efforts to (i) register or qualify all Registrable Securities covered by such
registration statement under such other securities laws or blue sky laws of such
United States jurisdictions as reasonably requested by any seller thereof and
any underwriter of the Registrable Securities being sold by such seller, to keep
such registrations or qualifications in effect for so long as such registration
statement remains in effect, and take any other action which may be reasonably
necessary or advisable to enable such seller and underwriter to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller, except that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any jurisdiction
wherein it would not, but for the requirements of this Section 1.4(d), be
obligated to be so qualified, to subject itself to taxation in any such
jurisdiction or to consent to general service of process in any such
jurisdiction, and (ii) cause all Registrable Securities covered by such
registration statement to be listed, upon official notice of issuance, on any
securities ex-
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change on which any of the securities of the Company of the same class as the
Registrable Securities are then listed;
(e) Underwriting. In the event of any underwritten public offering of
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securities, enter into an underwriting agreement in usual and customary form
with the managing underwriter(s) of such offering and perform its obligations
thereunder;
(f) Notification.
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(i) Notify all Stockholders and the managing underwriter or
underwriters, if any, promptly and confirm such advice in writing promptly
thereafter:
(A) when the registration statement, the prospectus or any
prospectus supplement related thereto or post-effective amendment to
the registration statement has been filed, and, with respect to the
registration statement or any post-effective amendment thereto, when
the same has become effective;
(B) of any request by the SEC for amendments or supplements
to the registration statement or the prospectus or for additional
information;
(C) of the issuance by the SEC of any stop order suspending
the effectiveness of the registration statement or the initiation of
any proceedings by any Person for that purpose; and
(D) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any Registrable
Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation or threat of any proceeding for such
purpose;
(ii) Notify each seller of Registrable Securities covered by such
registration statement when a prospectus relating thereof is required to be
delivered under the Securities Act, upon discovery that, or upon the happening
of any event as a result of which, the prospectus included in the registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing, and, at the request of
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any such seller, promptly prepare and furnish to such seller and each
underwriter, if any, a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchaser of such securities, such prospectuses shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(g) Opinion and Comfort Letter. Furnish to each seller of Registrable
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Securities, on the date that such Registrable Securities are delivered to the
underwriters for sale, if such Registrable Securities are being sold through
underwriters, or, if such Registrable Securities are not being sold through
underwriters, on the date that the registration statement with respect to such
Registrable Securities becomes effective, (i) an opinion, dated as of such date,
of the counsel representing the Company for the purposes of such registration,
in form and substance as is customarily given by issuer's counsel to
underwriters in an underwritten public offering and reasonably satisfactory to
such seller, addressed to the underwriters, if any, and to such seller and (ii)
a "comfort" letter, dated as of such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering and reasonably satisfactory to such seller, addressed to the
underwriters, if any, and to such seller; and
(h) Stop Orders. Make every reasonable effort to obtain the
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withdrawal of any order suspending the effectiveness of the registration
statement at the earliest possible moment.
1.5 Obligations of Stockholders. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to Section 1.1 or 1.2
that each Stockholder shall:
(a) sell the Registrable Securities so registered in accordance with
the plan of distribution set forth in the prospectus relating thereto;
(b) cooperate with the Company, its counsel, advisors and other
representatives, and comply with all applicable provisions of law (including,
without limitation, the prospectus delivery requirements of the Securities Act
and Rule 10b-5 and Regulation M under the Exchange Act);
(c) promptly provide to the Company, in writing, such complete
information regarding themselves, the Registrable Securities held by them and
the
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intended method or methods of disposition of such securities and such other
information as the Company or its counsel deems necessary or appropriate for
inclusion in the registration statement, which information, when given, shall be
true and correct in all material respects and shall not omit any information
necessary to make the information furnished not misleading;
(d) execute all questionnaires, powers of attorney or other documents
as the Company may reasonably request;
(e) discontinue sales of Registrable Securities upon notification of
any stop order or suspension of the effectiveness of the registration statement;
(f) notify the Company immediately upon any material change in the
plan of distribution or other information concerning such Stockholder described
in the prospectus;
(g) discontinue sales of Registrable Securities and use of the
related prospectus following notification by the Company that the registration
statement must be amended or supplemented;
(h) not use any prospectus other than the most recent prospectus
related to the registration statement; and
(i) upon presentation of a stock certificate representing Registrable
Securities sold in such registration, certify that the sale was made in
accordance with the terms hereof and the plan of distribution described in the
prospectus relating thereto.
1.6 Participation in Underwritten Offerings. No Person may participate in
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any underwritten offering hereunder unless such Person (a) agrees to sell such
Person's securities on the basis provided in any underwriting arrangements
approved, subject to the terms and conditions hereof, by the Company and (b)
completes and executes all questionnaires, indemnities, underwriting agreements
and other documents (other than powers of attorney) required under the terms of
such underwriting arrangements. Notwithstanding the foregoing, no underwriting
agreement (or other agreement in connection with such offering) shall require
any Stockholder to make any representations or warranties to or agreements with
the Company or the under writers other than representations and warranties
regarding such Stockholder, such Stockholder's Registrable Securities and such
Stockholder's intended method or methods of distribution and any other
representation required by law.
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1.7 Preparation; Reasonable Investigation. In connection with the
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preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company shall give the Stockholders whose
Registrable Securities are to be registered under such registration statement
and their respective counsel and accountants, the opportunity to participate in
the preparation of such registration statement, each prospectus included therein
or filed with the SEC, and each amendment thereof or supplement thereto, and
shall give each of them such access to its books and records and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of such Stockholders' and such underwriters'
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act after a confidentiality agreement has been executed.
1.8 Indemnification.
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(a) Indemnification by the Company. The Company shall, and hereby
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does agree to, to the full extent permitted by law, indemnify and hold harmless
any Stockholder whose Registrable Securities are covered by a registration
statement filed pursuant to Section 1.1 or Section 1.2, its directors and
officers and each other Person, if any, who controls such Stockholder within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such Stockholder or any such director or
officer or controlling Person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the circumstances under which
they were made) not misleading, and the Company shall reimburse such Stockholder
and each such director, officer and controlling Person for any legal or any
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding, provided that
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the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon (i) an untrue statement or alleged untrue
statement or omission or alleged omission
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made in such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by such Stockholder specifically stating that it is for
use in the preparation thereof or (ii) a Stockholder's failure to send or give a
copy of the final prospectus, as the same may be then supplemented or amended,
within the time required by the Securities Act to the Person asserting the
existence of an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
Registrable Securities to such Person if such statement or omission was
corrected in such final prospectus. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of such
Stockholder or any such director, officer, or controlling Person and shall
survive the transfer of such securities by such Stockholder and termination of
this Agreement.
(b) Indemnification by Stockholders. Each Stockholder, as a condition
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to including Registrable Securities in any registration statement filed pursuant
to Section 1.1 or Section 1.2, shall, and hereby does agree to, to the full
extent permitted by law, indemnify and hold harmless the Company, its directors
and officers and each other Person, if any, who controls the Company within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which the Company or any such director or
officer or controlling Person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement of any material fact contained in any
such registration statement, any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or supplement thereto, or
any omission or alleged omission to state therein a material fact required to be
stated therein 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, if such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Stockholder specifically stating
that it is for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus amendment or
supplement, provided, that the obligation to provide indemnification pursuant to
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this Section 1.8 (b) shall be several, and not joint and several among such
parties obligated to provide indemnity pursuant to this Section 1.8(b), and the
aggregate amount which may be recovered from any Stockholder pursuant to the
indemnification provided for in this Section 1.8(b) in connection with any
registration and sale of Registrable Securities shall be limited to the total
proceeds received by such Stock-
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holder from the sale of such Registrable Securities. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
the Company or any such director, officer or participating or controlling Person
and shall survive the transfer of such securities by such Stockholder and
termination of this Agreement.
(c) Notices of Claims. Promptly after receipt by an indemnified party
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of notice of the commencement of any action or proceeding involving a claim
referred to in Section 1.8 (a) or (b), such indemnified party shall, if a claim
in respect thereof is to be made against an indemnifying party, give written
notice to the latter of the commencement of such action, provided that the
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failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under this Section 1.8, except
to the extent that the indemnifying party is actually prejudiced by such failure
to give notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim, the indemnifying party shall be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party similarly
notified, to the extent that the indemnifying party may wish, with counsel
reasonably satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation, provided that the indemnified party may participate in such
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defense at the indemnified party's expense, and, provided further, that the
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indemnified party or indemnified parties shall have the right to employ one
counsel to represent it or them if, in the reasonable judgment of the
indemnified party or indemnified parties, it is advisable for it or them to be
represented by separate counsel by reason of having legal defenses which are
different from or in addition to those available to the indemnifying party, and
in that event the reasonable fees and expenses of one such counsel shall be paid
by the indemnifying party. If the indemnifying party is not entitled to, or
elects not to, assume the defense of the claim, it will not be obligated to pay
the fees and expenses of more than one counsel for the indemnified parties with
respect to such claim, unless in the reasonable judgment of any indemnified
party a conflict of interest may exist between such indemnified party and any
other indemnified with respect to such claim, in which event the indemnifying
party shall be obligated to pay the fees and expenses of such additional counsel
for the indemnified parties. No indemnifying party shall, without the consent of
the indemnified party, consent to entry of any judgment or enter into any
settlement of any such action which does not include as an unconditional term
thereof the giving
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by the claimant or plaintiff to such indemnified party of a release from all
liability, or a covenant not to sue, in respect to such claim or litigation. No
indemnified party shall consent to entry of any judgment or enter into any
settlement of any such action the defense of which has been assumed by an
indemnifying party without the consent of such indemnifying party.
(d) Other Indemnification. Indemnification similar to that specified
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in Sections 1.8(a) and (b) (with appropriate modifications) shall be given by
the Company and each seller of Registrable Securities with respect to any
required registration or other qualification of securities under any Federal or
state law or regulation of any governmental authority, other than the Securities
Act.
(e) Indemnification Payments. The indemnification required by this
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Section 1.8 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
(f) Contribution. If the indemnification provided for in Section
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1.8(a) or (b) is unavailable to an indemnified party in respect of any expense,
loss, claim, damage or liability referred to therein, then each 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 expense,
loss, claim, damage or liability in such proportion as is appropriate to reflect
the relative fault of the indemnifying party on the one hand and the indemnified
party on the other hand in connection with the statements or omissions which
resulted in such expense, loss, damage or liability, as well as any other
relevant equitable considerations. The relative fault of the indemnifying party
on the one hand and of the indemnified party on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission to state a material fact relates
to information supplied by the indemnifying party or the indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission, provided that the foregoing
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contribution agreement shall not inure to the benefit of any indemnified party
if indemnification would be unavailable to such indemnified party by reason of
the proviso contained in the first sentence of Section 1.8(a), and in no event
shall the obligation of any indemnifying party to contribute under this Section
1.8(f) exceed the amount that such indemnifying party would have been obligated
to pay by way of indemnification if the indemnification provided for in Section
1.8(a) or (b) had been available under the circumstances. The Company and the
Stockholders agree that it would not be just and equitable if contribution
pursuant to this Section 1.8(f) were determined by
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pro rata allocation or by any other method of allocation that does not take
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account of the equitable considerations referred to in the first sentence of
this Section. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in this Section 1.8(f)
shall be deemed to include, subject to the limitations set forth in this Section
1.8(f) and Section 1.8(c), any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. 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.
2. Definitions. As used herein, unless the context otherwise requires, the
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following terms have the following respective meanings:
Exchange Act: The Securities Exchange Act of 1934, as amended, or any
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similar Federal statute, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect at the time. Reference
to a particular section of the Exchange Act shall include a reference
to the comparable section, if any, of any such similar Federal
statute.
Initiating Holders: Any Stockholder or Stockholders initiating a
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request pursuant to Section 1.2 for the registration of all or part of
such Stockholder's or Stockholders' Registrable Securities.
Person: Any natural person, corporation, association, partnership,
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organization, business, trust, government (or political subdivision
thereof) or governmental agency.
Registrable Securities: the shares of Common Stock comprising the
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Share Consideration (as defined in the Asset Purchase Agreement) and
any securities issued or issuable with respect to any such shares of
Common Stock by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise. As to any particular Registrable
Securities, once issued, such securities shall cease to be Registrable
Securities when (a) a registration statement with respect to the sale
of such securities shall have become effective under the Securities
Act and such securities shall have been disposed of in accordance with
such registration statement, (b) they shall have been distributed to
the public pursuant to Rule 144 (or any successor
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provision) under the Securities Act, (c) they shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company
and subsequent disposition of them shall not require registration or
qualification of them under the Securities Act or any similar state
law then in force or (d) they shall have ceased to be outstanding.
Registration Expenses: All expenses incident to the Company's
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performance of or compliance with Section 1, including, without
limitation, all registration, filing and NASD fees, all stock exchange
listing fees, all fees and expenses of complying with securities or
blue sky laws, all word processing, duplicating and printing expenses,
messenger and delivery expenses, the fees and disbursements of counsel
for the Company and of its independent public accountants, including
the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance, the fees and
disbursements of any counsel and accountants retained by Initiating
Holders and by any Stockholder or Stockholders who requested the
registration of Registrable Securities in connection with a
registration under Section 1.1 or 1.2, premiums and other costs of
policies of insurance against liabilities arising out of the public
offering of the Registrable Securities being registered and any fees
and disbursements of underwriters customarily paid by issuers or
sellers of securities, but excluding underwriting discounts and
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commissions and other similar amounts payable or allowable to
underwriters or brokers and transfer taxes, if any, relating to
Registrable Securities being registered, provided that, in any case
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where Registration Expenses are not to be borne by the Company, such
expenses shall not include salaries of Company personnel or general
overhead expenses of the Company, auditing fees, premiums or other
expenses relating to liability insurance required by underwriters of
the Company or other expenses for the preparation of financial
statements or other data normally prepared by the Company in the
ordinary course of its business or which the Company would have
incurred in any event.
Securities Act: The Securities Act of 1933, as amended, or any similar
--------------
Federal statute, and the rules and regulations of the SEC thereunder,
all as of the same shall be in effect at the time. References to a
particular section of the Securities Act shall include a reference to
the comparable section, if any, of any such similar Federal statute.
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Stockholder or Stockholders: any holder or holders of Registrable
---------------------------
Securities including, without limitation, Connell and any Person to
whom the rights granted under this Agreement are transferred by
Connell, its successors or assigns.
3. Rules 144 and 144A. The Company shall use commercially reasonable efforts
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to timely file all reports required to be filed by it under the Securities Act
and the Exchange Act and the rules and regulations adopted by the SEC thereunder
or, if the Company is not required to file such reports, shall, upon the request
of any Stockholder, make publicly available other necessary information and
shall take such further action as any Stockholder may reasonably request, all to
the extent required from time to time to enable such Stockholder to sell its
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities Act,
as such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any Stockholder,
the Company shall deliver to such Stockholder a written statement as to whether
it has complied with the requirements of this Section 3.
4. Amendments and Waivers. This Agreement may be amended and the Company may
----------------------
take any action herein prohibited, or omit to perform any act herein required to
be performed by it, only if the Company shall have obtained the written consent
to such amendment, action or omission to act, of a majority of the Stockholders
(based upon the number of Registrable Securities). Each Stockholder at the time
or thereafter shall be bound by any consent authorized by this Section 4,
whether or not such Registrable Securities shall have been marked to indicate
such consent.
5. Nominees for Beneficial Owners. In the event that any Registrable
------------------------------
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election, be treated as the holder of such
Registrable Securities for purposes of any request or other action by any
Stockholder or Stockholders pursuant to this Agreement or any determination of
any number or percentage of shares of Registrable Securities held by any
Stockholder or Stockholders contemplated by this Agreement. If the beneficial
owner of any Registrable Securities so elects, the Company may require
assurances reasonably satisfactory to it of such owner's beneficial ownership of
such Registrable Securities.
6. Notices. Except as otherwise provided in this Agreement, all notices,
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requests and other communications to any Person provided for hereunder shall be
in
15
writing and shall be given to such Person (a) in the case of a party hereto
other than the Company, addressed to such party in the manner set forth in the
Asset Purchase Agreement or at such other address as such party shall have
furnished to the Company in writing, (b) in the case of any other Stockholder,
at the address that such Stockholder shall have furnished to the Company in
writing, or, until any such other Stockholder so furnishes to the Company an
address, then to and at the address of the last Stockholder of such Registrable
Securities who has furnished an address to the Company, or (c) in the case of
the Company, at N22 W23685, Ridgeview Parkway West, Waukesha, Wisconsin 53188,
Attn: President, or at such other address, or to the attention of such other
officer, as the Company shall have furnished to each Stockholder at the time
outstanding. Each such notice, request or other communication shall be
effective (i) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid or (ii) if
given by any other means (including, without limitation, by air courier), when
delivered at the address specified above, provided that any such notice, request
--------
or communication to any Stockholder shall not be effective until received.
7. Termination of the Company's Obligations. The Company shall have no further
----------------------------------------
obligations under Section 1.1 or 1.2 (a) as to any Registrable Security, after
such Registrable Security is disposed of under a registration statement pursuant
to Section 1.1 or 1.2 or (b) after the second anniversary of the date hereof.
8. Assignment. This Agreement shall be binding upon and inure to the benefit
----------
of and be enforceable by the parties hereto and their respective successors and
assigns. In addition, and whether or not any express assignment shall have been
made, the provisions of this Agreement which are for the benefit of the parties
hereto other than the Company shall also be for the benefit of and enforceable
by any subsequent Stockholder.
9. Descriptive Headings. The descriptive headings of the several sections and
--------------------
paragraphs of this Agreement are inserted for reference only and shall not limit
or otherwise affect the meaning hereof.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
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WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE STATE
OF DELAWARE WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAWS.
16
11. Counterparts. This Agreement may be executed simultaneously in any number
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of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
12. Entire Agreement. This Agreement embodies the entire agreement and
----------------
understanding between the Company and each other party hereto relating to the
registration of Common Stock and supersedes all prior agreements and
understandings relating to such subject matter.
17
13. Severability. If any provision of this Agreement, or the application of
------------
such provisions to any Person or circumstance, shall be held invalid, the
remainder of this Agreement, or the application of such provision to Persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
APW LTD.
By /s/ Joseph T. Lower
-------------------
Name: Joseph T. Lower
Title: Vice President
CONNELL LIMITED PARTNERSHIP
By: Its General Partner
CONNELL INDUSTRIES, INC.
By: /s/ John V. Curtin
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Name: John V. Curtin
Title: Vice President